Tuesday, November 03, 2015
American Pot: will Ohioans make this the day marijuana prohibition died? UPDATE: NO, Issue 3 loses big
As students in my various classes know well, I have been more than a bit obsessed over the controversial campaign seeking to bring dramatic marijuana reform to my home state of Ohio this year. My interest in this campaign is not only because I have a front-row seat on all the action and know a lot of the leader players, but also because (as hinted in the title of this post) I believe national marijuana prohibition throughout the United States will be functionally dead if a controversial marijuana legalization proposal can win in a swing state in an off-off-year election with nearly all the state's establishment politicians working overtime to defeat it.
Stated more simply, if a majority of Ohio voters today vote to repeal marijuana prohibition in the state, I think it becomes all but certain that national marijuana prohibition will be repealed before the end of this decade. These realities led me to start thinking about the famous lyrics of one of my all-time favorite songs, American Pie. So, at the risk of making light of a serious issue on a serious day, I will carry out these themes by doing a poor man's Weird Al Yankovic:
A long, long time agoI can still remember how that mary jane used to make me smileAnd I knew if Ohio had a chanceWe could make those politicians danceAnd maybe they'd be hoppy for a whileBut February made me shiverWith every complaint drug warriors deliveredBad news in the reform planI couldn't be sure who was the manI can't remember if I criedWhen I read about the monopolies triedBut something touched me deep insideThe day the marijuana prohibition died
So bye, bye, American Pot ProhibitionDrove my Prius to the pollsbut the polls gave me confusing choicesAnd them good ole boys were drinking whiskey 'n ryeSingin' this'll be the day prohibition diesThis'll be the day prohibition dies
Whatever my students and all other Ohioans think about these issue, I sincerely hope everyone goes out to vote so that we get a large and representative indication of what Buckeyes really think about thse matters.
November 3, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7)
Sign of the sentencing reform times: Louisiana Gov candidates spar over prison reform plans
This local article, headlined "Gubernatorial candidates spar about Louisiana’s high incarceration rate," provides a report on the notable and telling political debate over prison policies now going on in the Bayou. Here are details:
Republican David Vitter’s first television ad against his Nov. 21 runoff opponent Democrat John Bel Edwards takes aim at Edwards’ position on criminal justice — specifically, Edwards’ talking points about Louisiana’s high incarceration rate. The ad claims Edwards, who is being backed by the Louisiana Sheriffs Association, wants to release “5,500 violent thugs” from prison — a position that Edwards says has been misconstrued and taken out of context.
In reality, both candidates support some form of prison reform, including the expansion of early release programs for nonviolent offenders. Edwards and Vitter won the top two spots in Louisiana’s Oct. 24 primary, sending them to a head-to-head runoff to succeed Gov. Bobby Jindal, who can’t seek re-election due to term limits and has set off on a presidential campaign.
Lafayette Parish Sheriff Michael Neustrom, one of the sheriffs backing Edwards in the governor’s race, said he thinks progressive programs that aim to reduce the prison population responsibly are needed in Louisiana. “We have to do things differently,” he said. He said Louisiana prisons are overcrowded with minor, nonviolent offenders and that reform would be both economical and smart for the state. He noted that Texas could be a model for the types of reform that should be implemented here.
Louisiana has earned the dubious distinction of having — not just the nation’s — the world’s highest incarceration rate. There are nearly twice as many people jailed in Louisiana per capita as the national average. As of 2014, there were nearly 40,000 people behind bars in the state. The prison system costs Louisiana nearly $350 million a year. It’s an issue that the Louisiana Legislature has grappled with for several years, slowly winnowing away some of the mandatory minimum sentencing requirements implemented decades ago.
“We have to look at proven strategies that have been implemented elsewhere,” Edwards said in an interview Friday. He said he thinks Louisiana should take a serious look at pretrial diversion programs, including sobriety and drug courts, as well as special programs for the mentally ill and veterans. Edwards is a military veteran. “That’s the type of approach we should take,” he said, adding that the reduced costs on incarceration could be reinvested to reduce crime.
He said Vitter’s characterization of his views is misleading. The 5,500 figure, which Edwards has noted in several speeches — not just the Southern University speech the Vitter ad cites — is the number of prisoners that puts Louisiana above the state with the No. 2 incarceration rate. He’s used it as a hypothetical number that Louisiana would need to reduce by just to get out of the No. 1 spot. “I have never said I have a plan to release anybody,” he said, noting that the state has to set goals that it would like to achieve.
Asked about his views on sentencing reform and Louisiana’s high incarceration rate, Vitter referred reporters to his policy plan, “Together, Louisiana Strong.” The plan includes a chapter on “fighting violent crime and reforming criminal justice,” but it doesn’t specifically outline efforts to reduce Louisiana’s prison population. It mentions that Vitter wants to implement “cost-effective work release and monitoring programs,” but doesn’t provide details on those ideas. “I support common sense,” Vitter said Friday. “It is fundamentally different from John Bel Edwards.”
Vitter said he had not read recent legislative proposals that have aimed to reduce penalties for nonviolent offenses as a way to rein in the prison population. He repeatedly characterized Edwards’ comments as a “proposal” that his opponent has made and said his main objection is to the figure named. “We don’t need to pick an arbitrary number,” he said. “That’s a completely irresponsible proposal.”
Monday, November 02, 2015
Prez Obama takes criminal justice reform tour to New Jersey, but Gov Christie not pleased by visit
This Reuters article, headlined "Obama pitches help to ex-criminals, draws N.J. governor's ire," details notable talk from notable officials about criminal justice reform today in the Garden State. Here are the particulars:
President Barack Obama announced new measures to smooth the integration of former criminals into society but his visit to New Jersey on Monday irked the state's governor, a struggling Republican presidential candidate.
Obama, a Democrat who has made criminal justice reform a top priority of his final years in office, praised organizations in Newark for their efforts to help those who have served prison terms to reintegrate into civilian life. "We've got to make sure Americans who have paid their debt to society can earn their second chance," Obama said in a speech at Rutgers University in Newark, a city of about 280,000 that has grappled for decades with poverty and high rates of violent crime.
Obama said he was banning "the box" that applicants had to check about their criminal histories when applying for certain federal jobs. He praised companies such as Wal-Mart, Target, Koch Industries, and Home Depot for taking similar measures in the private sector. The president noted that Congress was considering similar measures.
But New Jersey Governor Chris Christie, who is failing to gain traction in his bid for the Republican Party's nomination to run for the White House in the November 2016 election, said Obama's policies had hurt police departments nationwide. "(Obama) does not support law enforcement. Simply doesn't. And he's going to come today to New Jersey in a place where, under my tenure, we have reduced crime 20 percent and reduced the prison population 10 percent," Christie said on MSNBC TV. "It's a disgrace that he's coming to New Jersey today to take credit for this stuff when he's been someone who's undercut it."
The new steps unveiled by the White House included up to $8 million in federal education grants over three years for former inmates as well as new guidance on the use of arrest records in determining eligibility for public and federally assisted housing....
White House spokesman Josh Earnest questioned the reasoning behind Christie's less friendly welcome on Monday. “Governor Christie’s comments in this regard have been particularly irresponsible, though not surprising for somebody whose poll numbers are closer to an asterisk than they are double digits. Clearly this is part of the strategy to turn that around,” Earnest said.
For more on the specific proposals annouced by President Obama today, this official White House Fact Sheet provides lots of details under the heading "President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly- Incarcerated."
Some analysis of the Prez's proposals can be found in this Atlantic piece with this lengthy headline: "Obama's Plan to Help Former Inmates Find Homes and Jobs: Between 40 and 60 percent of ex-offenders can’t find work. Will the president’s new initiative help?"
House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform
The somewhat curious title of this post is prompted by this somewhat curious new National Review commentary authored by Representative Bob Goodlatte, chair of the House Judiciary Committee. The piece is headlined "Reduce Prison Sentences, but Not for Violent Offenders: The release of dangerous criminals shows why Congress needs to act on criminal-justice reform." Here are excerpts from the piece (with a few patently false phrases emphasized):
Starting this month, thousands of federal inmates are set to be released early from federal prison, including serious violent felons and criminal aliens. This action is not the result of legislation passed by the people’s elected representatives in Congress. Rather, it is a result of a decision made by unelected officials appointed to the United States Sentencing Commission.
In early 2014, the Sentencing Commission adopted an amendment to reduce the sentences for certain drug-trafficking and distribution offenses, including trafficking offenses that involve drug quantities substantial enough to trigger mandatory minimum sentences. The Sentencing Commission made these reductions retroactive, applying them to tens of thousands of inmates in the Bureau of Prisons’ custody who are serving sentences for drug offenses. Since then, thousands of federal inmates have filed motions with their courts of jurisdiction for sentence reductions and have been granted approval for early release.
The problem with the Sentencing Commission’s changes to federal drug-sentencing requirements is that they are applied without regard to the inmate’s criminal history and public safety. Consequently, criminals set to be released into our communities as a result of the Sentencing Commission’s amendment include inmates with violent criminal histories, who have committed crimes involving assault, firearms, sodomy, and even murder.
There is growing consensus in Congress that certain federal drug sentences, such as mandatory life imprisonment for a third drug-trafficking offense, are unnecessarily harsh and contribute to prison overcrowding and a ballooning federal prison budget. However, the Sentencing Commission is going about sentencing reform the wrong way. Its new guidelines blindly apply sentencing reductions to all federal inmates without considering the impact an early release would have on the safety of our communities.
The Sentencing Commission’s unilateral changes show why it is imperative that Congress act on sentencing reform and other criminal-justice issues. If Congress does not act, the matter is left in the hands of an entity that has demonstrated it cannot be trusted to act responsibly. Fortunately, leaders in the House of Representatives and the Senate agree that our nation’s criminal-justice system needs improvement and are working on bipartisan legislation to do just that....
Recently, I joined several leaders of the committee in introducing our first piece of bipartisan legislation to reform federal sentencing requirements and simultaneously prevent serious violent criminals from getting out early.
That bill — the Sentencing Reform Act — makes the criminal-justice system more fair, efficient, and fiscally responsible. It reduces certain mandatory minimums for drug offenses, including cutting the third-strike mandatory life sentence to 25 years and the second-strike mandatory sentence from 20 to 15 years. The bill also broadens the mechanism for non-violent drug offenders to be sentenced below the mandatory minimum sentence and provides judges in those cases with greater discretion in determining appropriate sentences. These changes will help save taxpayer dollars and take an important step toward reducing crowding in our federal prisons and the amount of federal taxpayer dollars spent on incarceration each year.
Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people. Most important, the bill contains major limitations on the retroactive application of these reforms, to ensure that serious violent criminals serve the full time for their crimes in federal prison and do not get out of prison early. This is in stark contrast with what the Sentencing Commission has done to federal sentencing requirements....
While the fruit of the Sentencing Commission’s reckless changes is laid bare beginning this month, the House Judiciary Committee will move forward with the Sentencing Reform Act so that sentencing reform is done responsibly. Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.
The phrases I have highlighted are patently false because the instructions that the US Sentencing Commission giver to judges when deciding whether to reduce a defendant's sentence based on lowered guidelines includes an express requirement that the "court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment in determining: (I) whether such a reduction is warranted; and (II) the extent of such reduction." In other words, the USSC does not call for retroactive application of reduced guidelines without regard for public safety. Rather, the USSC expressly calls for judges to consider, on a case by case basis, whether reducing a sentence for an inmate poses a danger to any person or the community.
That all said, while this op-ed seems to me to be taking unfair pot shots at the US Sentencing Commission, I think it is wise to suggest that Congress can and should feel urgency to enact its own federal sentencing reform if it is concerned in any way with how the US Sentencing Commission has been trying to reduce the federal prison population. Both the Sentencing Commission and the US Department of Justice have been telling Congress for a number of years that federal prisons are badly overcrowded and are using up too much of the federal crime control budget. The Commission's decision to reduce drug sentences across the board and to make these changes retroactive reflect, in part, a wise recognition by the Commission that it needed to do something significant ASAP to reduce federal prison overcrowding. Notably, though many members of Congress have now been talking seriously about federal sentencing reforms for nearly three years, no actually refoms have become law.
November 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
"Sentencing Reforms Need Voices From Victims: Amid the bipartisan effort to fix a broken criminal justice system, a key perspective is missing."
The title of this post is the full headline of this notable National Law Journal op-ed authored by Mary Leary. I recommend the piece in full, and here are excerpts:
The Senate Judiciary Committee last month advanced, on a bipartisan basis, the historic Sentencing Reform and Corrections Act of 2015. This act has been described as the most significant criminal justice reform in decades. It proposes to drastically alter the sentences of thousands of criminals, recalibrating the entire structure of our criminal justice system.
While the Judiciary Committee's recent move is good news for sentencing reform, the news about the process of this bill is more mixed. It is critical that different stakeholders with distinct perspectives weigh in on this landmark legislation before it is passed. Yet, guess how many crime victims organizations were called to testify before the Senate Judiciary Committee? Zero....
As evidenced by President Barack Obama's recent meetings with the Major Cities Chiefs of Police and the International Association of Chiefs of Police, some policymakers understand that, to achieve legitimacy, the reforms need to be more than "bipartisan." They must be a product of dialogue with all stakeholders, not just offenders' organizations.
Yet, apparently no one in the Senate thought it appropriate to hear what victims have to say about criminal justice reform. Last year, about 1.17 million violent crimes and nearly 8.3 million property crimes were reported to law enforcement. The victims of that criminal activity are the people who bear the direct and secondary harm.
That is not all. It is not just that victims were not included as witnesses; they were barely even mentioned. A review of the written testimony of all nine witnesses indicates that the word "victim" or any derivative thereof was used a mere nine times....
And if victim groups have concerns, would not the bill become stronger if they were considered and perhaps included in its drafting? Although prosecutorial figures did testify, it is a mistake to assume they speak for victims. Indeed, that is how it should be, as the prosecutor's role is to represent the entire community and do justice, not to act as a victim's personal attorney.
A functioning criminal justice system must have legitimacy and a reformed fair sentencing scheme advances that goal. But a criminal justice system loses some legitimacy if it does not hear the voice of a major stakeholder — the victims.
The president and Congress need to reach out to victims. The president has gone all the way to Oklahoma to meet with prisoners. Perhaps he should take a walk in Washington and meet with one of the victims of the over 40,000 crimes that occurred there in 2014 or speak to the families affected by a homicide rate that has increased over 47 percent since last year.
Similarly, in 2004, Congress passed the Crime Victims Rights Act. This act afforded victims the right to be "reasonably heard" at public court proceedings. This same Congress should recognize that right in this context and allow victims to be "reasonably heard" regarding this major legislation. Not only is it reasonable to listen to crime victims, but it is necessary for any criminal justice reform to be legitimate.
Looking forward to big CKI summit "Advancing Justice: An Agenda for Human Dignity and Public Safety"
Though the biggest crimnal law reform story I am following this week concerns Ohioians voting on a controversial marijuana reform initiative (recent coverage here), right after election day I will have the honor and privilege of attending another big criminal justice event. Specifically, Wednesday I am heading down to the Big Easy to attend a big summit on criminal justice and policing reform that the Charles Koch Institute will be hosting November 4-6.
This big event is titled "Advancing Justice: An Agenda for Human Dignity and Public Safety," and this list of speakers and this schedule of panels reveal what an amaazing gathering the event looks to be. This webpage provides this description of what the event is all about:
Criminal justice and policing reforms are gaining momentum with concrete gains at the state and federal level. However, there is much more that needs to be done.
The Charles Koch Institute is holding a summit to help identify the next set of priorities, and to support a broad coalition that can help address barriers to further progress. We want to bring together the leading figures in this movement: policy makers, academics, think tanks, community activists, non-profits, elected officials, religious groups, etc., and together propose real, meaningful, lasting solutions. We are committed to supporting the best ideas and lending our voice to the national conversation for an advancement in human dignity and greater public safety.
The Charles Koch Foundation is a proud supporter of the summit.
"Will the Roberts court abolish capital punishment?"
The question in the title of this post is the headline of this recent lengthy article in The Hill. Here are excerpts:
The U.S. Supreme Court appears on track to revisit the constitutionality of the death penalty, with recent remarks from justices and world leaders sparking fresh optimism from opponents of capital punishment.
The high court under Chief Justice John Roberts has in recent terms agreed to rule on cases related to how states handle death penalty prosecutions and conduct executions, but has yet to weigh in on whether the practice violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
Some court watchers say that will soon change, pointing to signals suggesting an appetite among some of the justices to delve into that question in the near future, if not this term. “There is a feeling that this is not a long shot with the court anymore,” said Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project. “I think there is no question we have four votes.”
Many in the legal field have pointed to Justice Stephen Breyer’s dissenting opinion in a case known as Glossip v. Gross as evidence of the court’s trajectory. The case, decided last year, centered on whether state can use of the drug midazolam in lethal injections. While the majority ruled in the affirmative, some viewed Breyer’s dissent — which was joined by Justice Ruth Bader Ginsburg — as practically inviting lawyers defending death row inmates to bring a broad challenge, and providing a blueprint for what it might look like.
“Today’s administration of the death penalty involves three fundamental constitutional defects: serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose,” Breyer wrote. “Perhaps as a result, most places within the United States have abandoned its use.”...
But even conservative Justice Antonin Scalia says it could happen. During a speech last month at a Tennessee college, Scalia said he “wouldn’t be surprised” if the court ruled the death penalty unconstitutional, suggesting there are at least four justices that hold that view, according to a report in The Los Angeles Times....
The speculation comes amid renewed attention on the divisive issue, sparked most recently by Pope Francis’ call during September’s address to Congress for the “global abolition” of the death penalty.
President Obama, who supports the death penalty in certain cases, has himself shown signs of shifting his position, particularly after a botched execution in Oklahoma last year that prompted him to order a study of issues surrounding capitol punishment. The White House said Obama was “influenced” by the pope’s remarks in Washington. And in a recent interview with The Marshall Project, Obama said he finds the practice of the death penalty "deeply troubling.” He went on to reference racial disparities in it’s application, how long it takes to carry out, inmates who have been found innocent and recent executions that, as he said, have been “gruesome and clumsy.”...
Proponents of the death penalty, however, push back against the notion that the tide has begun to turn against the death penalty. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, pointed to an October Gallup poll showing stable support. The poll found that 63 percent of Americans favor the death penalty for convicted murderers, numbers that proved generally consistent with attitudes in 2008....
Public support or not, Scheidegger said cases challenging the death penalty have been coming before the court for over 50 years. “It’s not something that is a new idea,” he said. “I would not expect them to grant certiorari on a question of whether the death penalty violates the Eight Amendment in the foreseeable future.”
Even so, Scheidegger said potential vacancies on the Supreme Court coupled with a new president could threaten a practice that’s legal in 31 states. “It’s been a consistent pattern that justices nominated by Democratic presidents are more criminal friendly than those appointed by a Republican president,” he said. “ I would expect that pattern to continue to hold.”
For now, the court has only agreed to hear questions on procedural aspects of death penalty cases. On Monday, for example, the court will hear arguments in Foster v. Chatman, which questions if race was used to discriminate against potential jurors in a capital case out of Georgia. Scheidegger said these types of cases have very little to do with the justice of the case, but rather are designed to chip away at capitol punishment. “Polls consistently show the death penalty is just and right in some cases,” he said. “They are trying to grind it down through a war of attrition.”
All the sentencing news that's fit to print in New York Times
I am to very pleased to see that the two lead stories in today's national section of the New York Times are two criminal justice reform stories that are close to my heart. Here are the headlines and links:
In addition, inspired by the Supreme Court hearing this morning a capital case involving questionable jury selection, the New York Times also has this notable editorial and op-ed article on the topic:
Sunday, November 01, 2015
The simple, sound and shrewd ACCA/Johnson fix in SRCA 2015
I have now had a chance to give extra thought to the proposed statutory changes appearing in Section 105 of the Senate's Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here). When I first looked at this Section, labelled an "Amendment to certain penalties for certain firearm offenses and armed career criminal provision," I was a bit surprised to see it did not seem to directly address or respond to the Supreme Court's recent ruling in Johnson v. United States striking down a portion of the Armed Career Criminal Act as unconstitutionally vague. But upon reflection, I have come to the conclusion, as reflected in the title of this post, that the proposed statutory changes appearing in Section 105 of SRCA constitute a simple, sound and shrewd way to fix some of the broader ACCA problems that Johnson reflects. Let me explain my thinking here.
1. Though the Johnson vagueness ruling addressed the most confounding statutory provision of ACCA (the so-called "residual clause"), the ruling is really just a symptom of the broader ACCA disease. That broader disease concerns the fact that, under current federal law, the same basic offense of being a felon in possession of a firearm (FIP) has a statutory maximum prison sentence of 10 years UNLESS the offender has three ACCA-qualifying priors, in which case the offender faces a mandatory minimum 15-year prison sentence. Because the stakes of what qualifies as an ACCA prior is now so consequential, there is (understandably) lots and lots of litigation over what state priors trigger ACCA.
2. The Johnson ruling, culminating a decade of Supreme Court (and lower court) struggles with one clause defining ACCA predicates, eliminated one source of uncertainty and litigation by declaring that clause unconstitutionally vague. But lots of other parts of ACCA have also generated uncertainty and litigation, and the Johnson ruling did nothing to resolve or minimize the importance of all that uncertainty and litigation. Moreover, if Congress were to try to just "fix" the language of the ACCA residual clause that Johnson struck down, litigation would be sure to follow concerning the meaning of any fix language.
3. Into this enduring ACCA morass comes Section 105 of SRCA which, through a relative tweak, arguably fixes all these problems by raising the FIP statutory prison maximum to 15 years while lowering the ACCA mandatory minimum to 10 years. Through this simple change, there will no longer be a critical imperative for prosecutors (or probation officers) or sentencing judges (or appellate courts) to figure out in every close case whether an FIP offender qualifies for ACCA. If SRCA 2015 becomes law, in the many cases that legally are "close calls," federal judges will reasonably conclude that a prison sentence in the range of 10 to 15 is about right, and there will be no need to have a major legal fight over what exactly qualifies as an ACCA predicate. (In addition, if Section 105 of SRCA 2015 is enacted, judges will have greater discretion to punish harshly the worst FIP offenders who do not trigger ACCA and will also still be compelled to give at least 10 years to FIP offenders who clearly qualify for ACCA penalties.)
4. The US Sentencing Commission's recent statement concerning SRCA 2015 discusses why its own extensive research on mandatory minimums support this reform (and why it would, in turn, be just to make this change retroactive):
The Commission observed [in its extensive study of mandatory minimum sentencing provisions] that the ACCA’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, which increased the potential for inconsistent application insofar as the 15-year penalty may be viewed as excessively severe in those cases. To mitigate both the over-severity and disparate application of the ACCA, the Commission recommended that Congress consider clarifying the statutory definitions in the ACCA and reduce its severity.
5. By making its ACCA changes retroactive, SRCA 2015 not only could bring more equitable and just outcomes to many offenders previously subject to severe ACCA terms based on debatable interpretations of ACCA priors, it also could potentially short-circuit lots of complicated (and expensive) post-Johnson habeas litigtion that might well divide lower courts and take years to resolve through layers of complicated federal appeals. (Post-Johnson litigation is already starting to divide lower courts on some issues, and lots of enduring litigation messiness (and costs) seem inevitable without the SRCA fix and its retroactivity provision.)
I could go on and on (especially to praise the particular way SRCA 2015 makes its ACCA fix retroactive), but I fear this post is already more than long enough. And I am be especially interested in hearing from those laboring in the post-Johnson ACCA litigation trenches concerning whether they share my latest feeling that the SRCA 2015 fix may now represent the best of all possible ACCA worlds.
November 1, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)
SCOTUS back in action with week full of criminal law arguments
The US Supreme Court Justices return from a few weeks traipsing around the country (see SCOTUSblog mapping) to hear oral arguments this week in six cases, four of which involve criminal law issues. Drawing from this SCOTUSblog post by Rory Little, here are summaries of the criminal cases the Court will consider this week:
Monday, Nov. 2
Foster v. Chapman: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky when state prosecutors struck all four prospective black jurors, offering “race-neutral” reasons, and it was later discovered that the prosecution had (1) marked with green highlighter the name of each black prospective juror; (2) circled the word “BLACK” on the questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other if “it comes down to having to pick one of the black jurors.” (Georgia Supreme Court)
Tuesday, Nov. 3
Lockhart v. United States: Whether 18 U.S.C. § 2252(b)(2), requires a mandatory minimum ten-year prison term for a defendant convicted of possessing child pornography if he “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.” (Second Circuit)
Torres v. Lynch: Whether, for immigration removal purposes, a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks. (Second Circuit)
Wednesday, Nov. 4
Bruce v. Samuels: Whether the twenty-percent-of-income “cap” in the Prison Litigation Reform Act (28 U.S.C. § 1915(b)(2)), requiring in forma pauperis prisoners to still pay something toward the fee for filing federal cases, applies on a “per case” or “for all cases” basis. (D.C. Circuit)
"In Heroin Crisis, White Families Seek Gentler War on Drugs"
The title of this post is the headline of this notable lengthy New York Times article which astutely highlights how the demographics of who suffers most from a drug war can impact just how that war will be fought. Here are excerpts from the piece:
The growing army of families of those lost to heroin — many of them in the suburbs and small towns — are now using their influence, anger and grief to cushion the country’s approach to drugs, from altering the language around addiction to prodding government to treat it not as a crime, but as a disease.
“Because the demographic of people affected are more white, more middle class, these are parents who are empowered,” said Michael Botticelli, director of the White House Office of National Drug Control Policy, better known as the nation’s drug czar. “They know how to call a legislator, they know how to get angry with their insurance company, they know how to advocate. They have been so instrumental in changing the conversation.” Mr. Botticelli, a recovering alcoholic who has been sober for 26 years, speaks to some of these parents regularly.
Their efforts also include lobbying statehouses, holding rallies and starting nonprofit organizations, making these mothers and fathers part of a growing backlash against the harsh tactics of traditional drug enforcement. These days, in rare bipartisan or even nonpartisan agreement, punishment is out and compassion is in.
The presidential candidates of both parties are now talking about the drug epidemic, with Hillary Rodham Clinton hosting forums on the issue as Jeb Bush and Carly Fiorina tell their own stories of loss while calling for more care and empathy.
Last week, President Obama traveled to West Virginia, a mostly white state with high levels of overdoses, to discuss his $133 million proposal to expand access for drug treatment and prevention programs. The Justice Department is also preparing to release roughly 6,000 inmates from federal prisons as part of an effort to roll back the severe penalties issued to nonviolent drug dealers in decades past.
And in one of the most striking shifts in this new era, some local police departments have stopped punishing many heroin users. In Gloucester, Mass., those who walk into the police station and ask for help, even if they are carrying drugs or needles, are no longer arrested. Instead, they are diverted to treatment, despite questions about the police departments’ unilateral authority to do so. It is an approach being replicated by three dozen other police departments around the country.
“How these policies evolve in the first place, and the connection with race, seems very stark,” said Marc Mauer, executive director of the Sentencing Project, which examines racial issues in the criminal justice system. Still, he and other experts said, a broad consensus seems to be emerging: The drug problem will not be solved by arrests alone, but rather by treatment....
Some black scholars said they welcomed the shift, while expressing frustration that earlier calls by African-Americans for a more empathetic approach were largely ignored. “This new turn to a more compassionate view of those addicted to heroin is welcome,” said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A. law schools. “But,” she added, “one cannot help notice that had this compassion existed for African-Americans caught up in addiction and the behaviors it produces, the devastating impact of mass incarceration upon entire communities would never have happened.”
Saturday, October 31, 2015
Might California get two completing capital punishment propositions to consider in 2016?
The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Voters may weigh competing death penalty measures on 2016 ballot." Here are excerpts:
A pro-death penalty group unveiled a ballot measure Friday that would require death row inmates to work in prison and provide new deadlines intended to expedite appeals. The measure, which would appear on the November 2016 ballot, is aimed at speeding up executions in California. The state has executed 13 inmates since 1978, but nearly 750 remain on death row, the largest in the nation. Most condemned inmates die of suicide or illness.
A proposed anti-death penalty initiative also has been submitted for state review, creating the possibility that voters next year will weigh competing initiatives on capital punishment. Both measures would require current death row inmates to work and pay restitution to victims, but one would keep the death penalty, and the other scrap it for life without parole.
Backers of the death penalty estimate their new measure would reduce the time from conviction to execution from as long as 30 years to 10 to 15 years. San Bernardino County Dist. Atty. Mike Ramos, one of several supporters who spoke about the measure at a Los Angeles news conference, said it would honor the more than 1,000 victims — including 229 children and 43 peace officers — who have been murdered by inmates on California’s death row.
Neither side in the death penalty debate has yet raised the commanding sums needed to assure ballot placement. The pro-death penalty group said it has raised $1 million so far. The opposition has raised $350,000. An estimated $2 million is probably needed to gather the required signatures.
Friday's news conference came a few days before the state plans to release a revised method of execution. The new protocol will involve a single drug rather than the three-drug cocktail previously used. Court rulings have prevented the state from executing anyone since 2006. A federal judge ruled that the former method exposed inmates to inhumane suffering if one of the three drugs failed to work....
The measure announced Friday is similar to one that death penalty supporters launched more than a year ago. The earlier proposal did not get enough signatures to qualify for the ballot. A key difference is that the former was a proposed constitutional amendment, which requires more signatures than a mere change in state law.
Like the earlier measure, the newest one would allow the revised lethal injection method to take effect without exhaustive public comment. Death row inmates would be housed throughout the prison system.
The state’s voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000.
Ana Zamora, the criminal justice policy director for the ACLU of Northern California, which sponsored the 2012 initiative to end the death penalty, said Friday’s proposal would just cause more delays. “The only solution is to keep murderers in prison until they die,” she said.
But Kermit Alexander, whose mother, sister and two young nephews were killed in 1984, said families deserve the execution of those who killed their loved ones. Choking back tears, the former football star said the killer, now on death row, had mistakenly gone to the wrong house when he killed Alexander’s family. “If you prey upon the elderly or massacre our children,” Alexander said, “you should be required to pay the ultimate price. It's the law. … Justice isn't easy. Justice isn't gentle. But justice denied isn't justice.”
As some readers may know, I am a huge fan of direct democracy and thus I am always generally support of any and all efforts to bring important issues directly to voters through the initiative process. In addition, because I generally view the death penalty to be an issue that can be effectively and soundly addressed through the initiative process, I am now rooting for both capital reform proposals to make it to California voters. (Indeed, I have of late been thinking/hoping someone might have the resources and inclination to bring some kind of initiative reform concerning the death penalty to Buckeye voters in my own state of Ohio.)
Friday, October 30, 2015
SCOTUS grants cert on quirky aspect of federal gun prohibition case
As reported in this SCOTUSblog post, headlined "Court grants review in firearm-possession case," the Supreme Court decided today to take up a federal criminal case involving gun rights. But, interestingly, as Amy Howe explains in the post, the Court did not accept for review the Second Amendment issue lurking in the case:
This afternoon the Court issued an initial group of orders from its October 30 Conference, adding one new case to its merits docket for the Term. The Justices had considered Voisine v. United States at two earlier Conferences before granting review today.
At issue are the convictions of two Maine men, Stephen Voisine and William Armstrong, for violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Both men allege that their convictions under Maine law for simple assault and misdemeanor domestic violence assault, respectively, do not automatically qualify as misdemeanor crimes of domestic violence for purposes of the federal law, 18 U.S.C. § 922(g)(9), because both provisions of Maine law can be violated by conduct that is merely reckless, rather than intentional. The U.S. Court of Appeals for the First Circuit rejected that argument, and the federal government urged the Court to deny review, but the Justices today disregarded that recommendation.
Notably, however, the Court agreed to review only the recklessness question; it declined to review a second question presented by the petition, which asked the Justices to rule on whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment.
Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences
Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007. Here are a few posts from eight years ago on this blog on that topic:
- A retroactive litmus test on leading Democratic candidates
- Seeking to clear up Clintonian confusion on crack retroactivity
- More questions about Clinton's opposition to crack guideline retroactivity
- Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice
- Exposing the (racist?) hypocrisy of Clintonian speeches without solutions
I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined "Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing." Here are excerpts:
Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She’s also reiterating her support for a ban on racial profiling by law enforcement officials.
A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers’ lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign.
Mrs. Clinton’s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1....
Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far....
On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she’ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity.
A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn’t enough.
The ACLU called the 2010 legislation a “step toward fairness” but said more was needed. “Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is 1:1,” the group said.
The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines.
As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.
October 30, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)
Thursday, October 29, 2015
More notable comments from Deputy AG Yates about "how badly we need" sentencing reforms
Earlier today Deputy Attorney General Sally Quillian Yates spoke at Columbia Law School about criminal justice reform. Her full speech, available at this link, merits a full read. Here are excerpts:
These days, there’s a lot of talk about criminal justice reform. We are at a unique moment in our history, where a bipartisan consensus is emerging around the critical need to improve our current system. About a month ago, a coalition of republican and democratic senators unveiled a bill — called the sentencing reform and corrections act — to address proportionality in sentencing, particularly for lower level, non-violent drug offenders. In short, we need to make sure that the punishment fits the crime. Last week, I had the privilege of testifying before the Senate Judiciary Committee about the many promising pieces of that legislation.
And I know how badly we need reform. As the Deputy Attorney General, I oversee day-to-day operations for the Justice Department, which includes not just our nation’s federal prosecutors, but also the FBI, DEA, ATF, U.S. Marshals Service and the federal prison system. I see all sides of our criminal justice system and I can tell you confidently: the status quo needs to change.
We need a new approach and we need a better approach. We need to be willing to step back, look at how we’ve managed criminal justice in the past and be willing to adjust our way of thinking....
We need to think differently. We need to look beyond our own experiences and accept that there may be new and better, ways of doing things. I saw one example of that just this morning. I visited a drug court in federal court in Brooklyn that focuses on giving offenders a chance to escape the grip of drugs. Instead of lengthy prison sentences, the program is designed to hold the defendants accountable, but to do it in a way that offers support, drug treatment and job opportunities. While it’s true that there are dangerous defendants from whom society needs to be protected, there are others, like the defendants I saw today, for whom alternatives to incarceration make a lot more sense.
This new way of thinking is beginning to resonate in federal and state systems all across the country. At the Justice Department, to achieve more proportional sentencing, we have directed prosecutors to stop charging mandatory minimum offenses for certain low-level, non-violent drug crimes. The president has granted clemency to scores of individuals who received sentences longer than necessary under our harshest drug laws — with more to come in the months ahead. Twenty-nine red states and blue states across the country have passed innovative reforms. Even Congress — which doesn’t agree on much these days — is on the cusp of significant sentencing reform legislation.
But if we are really serious about building safe communities, if we are really committed to justice, as a country, we have to be willing to invest in stopping crime before it starts. We have to be willing to invest in breaking the cycle of generational lack of access to educational opportunity and resulting illiteracy and poverty. We have to be willing to invest in real prevention and prisoner reentry opportunities and do it in a big systemic way, not just a smattering of pilot programs. We all know that we can’t simply jail our way into safer communities. But until we are willing to invest in preventing crime the same way we are willing to invest in sending people to prison, our communities will not be as safe nor will our system be as just as it should be.
When we talk about prevention, we need to include in that rehabilitation. Because prisoner rehabilitation is crime prevention. The fact is, more than 95 percent of all prisoners will eventually be released from prison. And we know that as things currently stand, about 40 percent of federal prisoners and two-thirds of those released from state prisons will reoffend within three years. We have to break that cycle.
We also know that the best way to reduce recidivism is to reintegrate ex-offenders into our communities — they need stability, support and social ties to turn away from the errors of their past. They need jobs and homes; friends and family. Yet so many people in our society want nothing to do with anyone with a rap sheet. There are too many people willing to pin a scarlet letter on those who have spent time in prison. The irony, of course, is that this view is self-defeating — that by ostracizing this class of citizens, we only increase the risk of recidivism and we make our country less safe, not more.
It is up to all of us to reject this way of thinking. Rather than creating even greater distance between ex-offenders and the communities they’re re-joining, we should be focusing our energy on developing more effective paths for reentry....
Achieving meaningful criminal justice reform will not be easy. And we must all participate in this process, government and private citizens alike. Three decades ago, when our country was focused just on being “tough on crime,” it was impossible to imagine that we would ever find a way to return proportionality to our sentencing laws. But we are closer than ever, thanks to the sustained efforts of those willing to call out injustices and demand meaningful change. It’s time that we collectively discard old assumptions and embrace new ideas. In other words, it’s time we all collectively put two fingers to our temples. Our nation and our fellow citizens deserve nothing less.
Final reminder about "Marijuana Politics and Policy: As Goes Ohio, so Goes the Nation...?"
As noted in this post last week, some of my students at The Ohio State University Moritz College of Law have put together a terrific event for tomorrow afternoon (Friday, October 30) to discuss what next week's vote on an Ohio marijuana initiative might mean for both the politics and policy of marijuana reform. This link leads to even details and registration for this (free) event, and there you can also find this summary description:
National leaders in Marijuana Politics and Policy will gather at Moritz to discuss what we have learned from reform movements in states like Colorado, Washington and others, and how these movements relate to the impending Ohio Election. In addition to discussing the impact of marijuana reform on a variety of broader criminal justice and social reform movements, the event will include a discussion of what effects reform in Ohio would have both within the state and nationally.
Participants will include Professors Douglas Berman and Dan Tokaji from The Ohio State University Moritz College of Law, as well as John Hudak and Philip Wallach from the Brookings Institute.
Why this event is so timely and exciting can be readily understood just from these four most recent posts from my Marijuana Law, Policy & Reform blog:
- Highting how Ohio initiative has deeply split traditional marijuana reform groups
- Has candidate Bernie Sanders already produced "big political moment" for marijuana reform?
- Unsurprisingly, MPP and SAM have very different marijuana grades for Prez candidates
- Spotlighting how, in bellwether Ohio, "Corporations, Activists Clash Over Legal Pot"
US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015
I have been remiss for failing to highlight in this space the notable analysis recently done by the US Sentencing Commission in conjunction with the Senate's work on the Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here). That analysis appears in full form in this extended statement by USSC Chair Patti Saris to the Senate Judiciary Committee, and it appears in summary form in this USSC news release praising the Committee's passage of SRCA 2015 through to the full Senate. Here are the key data appearing in short form in the press release:
According to the Commission’s analysis, key provisions of S. 2123 would:
• Provide retroactive application of the Fair Sentencing Act (FSA), which could allow 5,826 offenders currently in prison to receive an approximate 20 percent reduction in sentence.
• Permit certain offenders who are currently subject to the 10-year mandatory minimum penalty to be subject to the 5-year mandatory minimum instead, which would reduce the sentence of 550 offenders annually by approximately 19.3 percent.
• Broaden the safety valve to provide greater relief to more low-level, non-violent offenders, which would reduce the sentence of 3,314 offenders annually by nearly 20 percent and save 1,593 federal prison beds within 5 years of enactment.
• Reduce mandatory minimum penalties for recidivist drug offenders with prior drug felony convictions from 20 years to 15 years, and reducing the mandatory life imprisonment penalty for certain offenders to 25 years while both narrowing and expanding the types of prior offenses that could trigger a mandatory minimum.
• Reduce the mandatory minimum sentencing enhancement for using a firearm in the commission of a violent crime or drug offense from 25 years to 15 years, and narrow the circumstances in which multiple sentencing enhancements apply, which would reduce the sentence of 62 offenders annually by 30.4 percent.
• Reduces the mandatory minimum penalty under the Armed Career Criminal Act from 15 to 10 years, which would reduce the sentence of 277 offenders each year by approximately 21.6 percent. The bill would apply this provision retroactively, which, if granted, could result in a sentence reduction for 2,317 offender currently in federal prison.
Recent prior related posts on SRCA 2015:
- Bipartisan federal sentencing reform bill due to emerge from Senate today
- Basic elements of Sentencing Reform and Corrections Act of 2015
- Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
- Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
- Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
- SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
- Noting the potential sentencing reform benefit from the latest budget deal
October 29, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
Did former House Speaker Hastert get a sweetheart sentencing deal from federal prosecutors?
The question in this post is prompted by this lengthy new Politico article headlined "Hastert's sweet deal: Lawyers question whether federal prosecutors are following guidelines." Here are excerpts:
House Speaker Dennis Hastert’s guilty plea in a hush-money case has some lawyers asking whether the former speaker is getting a sweetheart deal.
At a court hearing in Chicago Wednesday, the prosecution and defense unveiled Hastert’s plea bargain under which he admitted to a felony charge of structuring $952,000 into 106 separate bank withdrawals to avoid federal reporting requirements. The two sides agreed that sentencing guidelines call for Hastert to receive between zero and six months in jail.
But legal experts say those guidelines arguably call for a much longer sentence—closer to two to three years or more, including a potential enhancement for obstruction of justice. And some lawyers say they’re baffled that prosecutors would buy into a calculation that opens the door to Hastert getting a sentence of probation. “It seems like a sweet deal,” University of Richmond law professor Carl Tobias said. “It’s just hard to understand.”
The indictment in the case also charged Hastert with lying to the FBI about what he did with the money, concealing that he paid it to a longtime associate in an effort to hide past misconduct. In the plea deal, Hastert admitted to misleading the FBI, but prosecutors agreed to drop the false statement charge....
The agreement between prosecutors and Hastert’s defense that the zero-to-six-month sentencing range is applicable to his case is not the end of the matter. A probation officer will also calculate the range and could disagree with the parties. Durkin will ultimately decide what the guidelines call for. Under the plea deal, Hastert retains the right to appeal the sentence to the 7th Circuit.
Under a 2005 Supreme Court decision, the judge is required to consult the guidelines but he can impose a more or less severe sentence. Experts in structuring cases say judges often sentence below the guidelines, especially in so-called “clean money” cases where the government does not allege that the funds were the product of illegal activity like drug dealing or were being used to avoid taxes.
"The sentencing guidelines for clean-source money cases are totally out of whack," the ex-prosecutor said. "It's insane to sentence someone for a purely regulatory violation as severely if not more severely than someone who defrauded someone out of $952,000. Having said that, there are a good measure of bad acts here, so maybe there would be some rough justice in it."
Prosecutors have alleged that Hastert paid the $952,000 in illegally structured withdrawals to a longtime associate because of Hastert’s past misconduct against that person, identified in court filings only as “Individual A.” Sources have alleged the behavior involved sexual contact with a male student while Hastert was a coach and high school teacher several decades ago, but the indictment does not mention any sexual aspect to the charges.
Experts say Hastert could not be charged or sued today over such acts years ago because the relevant statutes of limitations have expired. Lawyers say a key factor in Hastert's ultimate sentence could be whether Durkin decides Hastert's underlying misconduct is relevant for the purpose of sentencing on the bank reporting charge.
Criminal defense attorney Michael Monico, who co-authored a handbook on federal court practices in Illinois and the greater Midwest, said Durkin will want to know Hastert's motivation for paying out the $3.5 million and the exact nature of the behavior he was trying to hide.
"If I were the judge I would ask about it, I would want to know. I would want to know, what was he hiding?" Monico said. "I think that’s the number one question in the case: Is it relevant to his sentencing what Hastert did to this fellow decades ago? If it isn’t relevant, then probation is OK. If the conduct was despicable then it’s not an appropriate sentence. It seems to me that’s a question the judge has to answer."
October 29, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)
"The Corporation as Snitch: The New DOJ Guidelines on Prosecuting White Collar Crime"
The title of this post is the title of this notable new essay by Elizabeth Joh and Thomas Joo available via SSRN. Here is the abstract:
Volkswagen, the world’s largest auto maker, acknowledged in September 2015 that it had equipped its cars with software designed to cheat diesel emissions tests. The VW scandal may become the first major test of the Department of Justice’s recently announced guidelines that focus on individual accountability in white collar criminal investigations. Criminal investigations into safety defects at two other leading car makers, General Motors and Toyota, yielded no criminal charges against any individuals.
But in a recent speech announcing the new guidelines, Deputy Attorney General Sally Yates stated, “Crime is crime,” whether it takes place “on the street corner or in the boardroom.” “The rules have just changed.” We raise questions about this new approach and some of its possible implications. The new cooperation policy’s emphasis on individual prosecutions could itself result in leniency: prosecutors may award excessively generous credit to corporations in order to build cases against individuals.
Noting the potential sentencing reform benefit from the latest budget deal
This notable new BuzzFeed article highlights an interesting link between the new budget deal and on-going sentencing reform efforts inside the Beltway. The extended headline of the article tells the basic story: "Criminal Justice Advocates Get A Gift From The Budget Deal: More Time: Lawmakers think they will now have time early in 2016 to pursue the bipartisan criminal justice package that would reduce some federal mandatory minimum sentences." Here are excerpts:
Efforts to change the nation’s criminal justice system got a major boost Tuesday. Congressional leaders began pushing a budget deal Tuesday to raise the debt limit and avert a shutdown until 2017. Although the funding bill is completely separate from the criminal justice legislation lawmakers have been working on, if approved, it would give Congress more breathing room to focus on criminal justice changes before the 2016 election heats up.
With funding for the government set to expire in mid-December, advocates had been concerned that fiscal issues would dominate Congress through this year and potentially into next year, delaying the measure which has bipartisan support and took more than three years to negotiate.
But if the budget deal is signed into law, it could add to the momentum building in favor of the criminal justice legislation, which would reduce some federal mandatory minimum sentencing. “This is the best possible scenario for us that the budget stuff is working itself out,” said Holly Harris, executive director of the bipartisan U.S. Justice Action Network. “This has cleared the way for our legislation.”
Republican leaders in the Senate even addressed the issue in their weekly press conference Tuesday afternoon, which in itself was a major victory, Harris said. “Just the fact that leadership is talking about this bill is monumental,” she said. “A year ago, many thought this wasn’t possible. In fact, two months ago no one thought this was possible.”...
During the Senate GOP leadership’s weekly press conference Tuesday, Senate Majority Whip John Cornyn urged the Senate to take up the issue as soon as possible. “The president’s in Chicago today talking about criminal justice reform, and as you know, there’s a bipartisan criminal justice reform bill, one composed of sentencing reforms and also prison reforms,” Cornyn told reporters.
“This is one area where I’ve told the majority leader that with that kind of broad bipartisan support, hopefully after we get through the rest of this year’s business, this is something we could take up,” he said. “The House is considering a similar bill. And with the president’s support of the idea of criminal justice reform, it’s seems like the time is right. “
Senate Majority Leader Mitch McConnell expressed support for bringing up the legislation to the floor for a vote, but did not give a timeline. “It’s certainly going to get floor time in this Congress, but I can’t give you an exact time at this point,” he told reporters.
Senate GOP aides believe it will be hard to take up the issue before next year even if the budget is taken care of in the coming days. But it does give senators who are supporting the measure the time and energy needed to lobby their colleagues and gear up for a vote when Congress returns in January. “I’m just encouraged by the momentum on criminal justice reform overall,” New Jersey Democratic Sen. Cory Booker told BuzzFeed News. “This bipartisan, bicameral energy is encouraging. It shows that we can come together and get things done.”
Leading Dems stake out notable positions on death penalty and marijuana reform
For sentencing and criminal justice fans, last night's GOP Prez debate was a big snooze. But, as the two articles linked below highlight, the leading Prez candidates for the Democrats made headlines in this arena yesterday:
October 29, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)
Wednesday, October 28, 2015
Prez Obama talking up (yet again) sentencing reform
As reported in this New York Times piece, "President Obama made his case on Tuesday for an overhaul of the nation’s sentencing laws, telling a gathering of top law enforcement officials here that putting large numbers of nonviolent drug offenders in prison was neither fair nor an effective way of combating crime." Here is more:
While insisting that he did not harbor a “bleedingheart attitude toward crime and justice,” Mr. Obama said the country should face up to the fact that policing priorities needed to shift away from locking up millions of nonviolent drug offenders — especially young black and Latino men. “That’s not a sustainable situation,” Mr. Obama said. “It is possible for us to come up with strategies that effectively reduce the damage of the drug trade without relying solely on incarceration.”...
The president received a warm response from the law enforcement officials in the crowd, many of whom have said that more robust gun control measures would help keep police officers safe. On Monday, many police leaders at the conference called on Congress to pass universal background checks for firearm purposes, one of many proposals that failed to pass after the mass school shooting in Newtown, Conn. “It’s too easy for criminals to buy guns, and that makes your already dangerous job far more dangerous than it should be,” Mr. Obama said. “And it makes the communities so fearful that it’s harder for them to be a good partner for you.”
Tuesday, October 27, 2015
"Automatic Justice? Technology, Crime and Social Control"
The title of this post is the title of this intriguing new paper authored by Amber Marks, Ben Bowling and Colman Keenan. Here is the abstract:
This paper examines how forensic science and technology are reshaping crime investigation, prosecution and the administration of criminal justice. It illustrates the profound effect of new scientific techniques, data collection devices and mathematical analytical procedures on the traditional criminal justice system. These blur the boundary between the innocent person, the suspect, the accused and the convicted. They also blur the boundary between evidence collection, testing its veracity and probative value, the adjudication of guilt and punishment. The entire process is being automated and temporally and procedurally compressed. At the same time, the start and finish of the criminal justice process are now indefinite and indistinct as a result of the introduction of mass surveillance and the erosion against ‘double jeopardy’ protections caused by scientific advances that make it possible to revisit conclusions reached in the distant past.
This, we argue, indicates a move towards a system of ‘automatic justice’ that is mediated by technology in ways that minimise human agency and undercuts the due process safeguards built into the traditional criminal justice model. The paper concludes that in order to re-balance the relationship between state and citizen in an automatic criminal justice system, we may need to accept the limitations of the existing criminal procedure framework and deploy privacy and data protection law which are now highly relevant to criminal justice.
Monday, October 26, 2015
"Culture as a Structural Problem in Indigent Defense"
The title of this post is the title of this notable new paper by Eve Brensike Primus available via SSRN. Here is the abstract:
Indigent defense lawyers today are routinely overwhelmed by excessive caseloads, underpaid, inadequately supported, poorly trained, and left essentially unsupervised. They face an avalanche of hostility every time they walk into court as judges, prosecutors, and court personnel pressure them to process their clients through the criminal justice system. Many zealous defenders simply burn out and leave the job. Of those who remain, many perform valiantly. But the sheer reality of the difficult task that these lawyers are expected to do is often overwhelming. Especially in contexts where indigent defense lawyers lack institutional support, even lawyers who wish to take their obligations seriously sometimes find themselves overwhelmed and gradually become less sensitive to the routine injustices of the system. Others become cynical and depressed and unhappily continue in the job — aware of the problems, but feeling powerless to effectuate change.
The result is a serious cultural problem in indigent defense, especially in jurisdictions where such defense is handled by lawyers lacking the community and institutional reinforcement that strong public-defender offices can provide. Consequently, many indigent defendants who go through the criminal justice system (as well as the friends and families of defendants who suffer through these ordeals with them) often feel confused, angry, and ignored. They have no faith in the system or in the legitimacy of their convictions. Rather, they experience the criminal justice system as an assembly line to prison for poor people of color.
In this essay, I will argue that attempts at reform should focus on changing this cultural problem in indigent defense delivery systems. As was true in 1961 (when the symposium that this essay celebrates was published), there is now a feeling that change is coming. Countless commissions have issued reports documenting excessive defender caseloads, a lack of independence, and blatant violations of the constitutional right to counsel across jurisdictions and making recommendations for improvement. Many states have developed bipartisan Indigent Defense Commissions to investigate best practices and implement more effective and efficient delivery systems going forward. Legislators have convened working groups and have proposed legislation to address the crisis. President Obama created the Office for Access to Justice, an initiative designed to analyze and think about how to improve indigent defense delivery systems. And symposia abound detailing the problems with indigent defense delivery systems and recommending potential solutions.
A focus on improving the culture of indigent defense delivery systems can and should infuse current reform proposals and inform change going forward. Perhaps this time, we can learn from some of our past mistakes and move toward accomplishing some of the laudable goals that many have been advocating for over fifty years.
Interesting takes on California developments since passage of Prop 47
I have long asserted that California has long been among the most interesting states to watch closely when it comes to crime and punishments. The latest round of developments involve the state's passage of an initiative, Proposition 47, reducing the severity of many offenses and subsequent reactions thereto. This new Los Angeles Times op-ed, authored by Robert Greene and headlined "California's Prop. 47 revolution: Were the voters duped?," provides a notable take on all this and a preview of more to commentary come. Here are exerpts:
Police and prosecutors have lately attempted to link increases in crime to last year's Proposition 47. Based on their overwrought statements, it would be understandable for Californians to start wondering whether they had been duped into completely decriminalizing drug possession and petty theft....
As is the case with all large bureaucracies, it is difficult for courts and for city and county agencies — police departments, sheriff's departments, district attorneys, probation officers, county supervisors — to understand and constructively respond to changed circumstances. And Proposition 47 no doubt brought change, by converting six felonies to misdemeanors and allowing many people serving sentences for those crimes, and those who served their time long ago, to be resentenced and have their rap sheets adjusted....
Crime in Los Angeles and some other communities throughout the state has increased this year after many years of decline. But is that because of Proposition 47? Other American cities, where Proposition 47 has no effect, have seen similar increases.
If the ballot measure is connected to rising crime, that's probably because public officials have been too slow to recognize the options that the measure gives them. And it's likely that their decisions — a deputy's decision not to arrest, for example, or the sheriff's not to make room in the jail for a recidivist offender pending trial, or county supervisors' not to use any of the hundreds of millions of dollars currently available for non-jail alternatives — are based on suppositions about how the other links in the public safety chain will react....
The gist of the reaction against Proposition 47 is that we as a society simply have no choice but to make possession of drugs and petty theft into felonies punishable by more than a year in prison if we want to control more serious crime. Similar warnings were issued about the consequences of modifying the three-strikes law, yet recidivism among strikers released from prison after voters adopted Proposition 36 is astonishingly low. And similar arguments were made against redirecting some felons from state prison and state parole to county jail and county probation, yet crime rates after realignment continued to fall.
In the coming week, The Times' Opinion section — the Opinion L.A. blog, the editorial board and the Op-Ed page — will explore the repercussions of Proposition 47, and compare this episode in criminal justice history with similar recent changes that also produced periods of adjustment. The goal is not to defend the voters' decision but rather to seek some honest talk, some accountability and some effective action on the part of public officials who are responsible for providing public safety, justice and wise and effective spending.
These follow-up opinion pieces provide, as their headlines suggest, pro and con views of the pros and cons of Prop 47:
Sunday, October 25, 2015
FCC finally puts limits on (over)charging inmates for all phone calls
A helpful reader reminded me that I ought not let go unmentioned the valuable work (finally!) completed by the Federal Communications Commission to place some limits on the oftn-extreme prices charged by phone companies to a truly captured consumer group. This AP piece, headlined "FCC Votes to Further Cut Cost of Calls for Inmates," provides the basic details:
A federal commission's decision Thursday to further reduce the cost of jail and prison phone calls led some to hail it as a money saver for inmates' families, but immediately prompted phone companies to threaten legal action. Mignon Clyburn, a Democratic commissioner with the Federal Communications Commission who voted in favor of the additional cutting, said the cost of the calls have placed "incredible burdens" on the family members of the more than 2 million people incarcerated in the U.S.
Among them is Dorothee Warner, who said she has spent more than $2,000 over the past year so she and her family can talk to her jailed son. "It is a very predatory system that is unfair," the Overland Park, Kansas, woman said. "People who are incarcerated, it is very difficult on their families. It is almost like the family is being punished as well."
Over the years, defense attorneys also have joined in the fight for lower rates. But phone companies have defended the costs, saying some of the money generated is used for things like activities for the incarcerated and that the calls require costly security features. The FCC has countered that the cost of security features was built into the rate structure.
Securus Technologies Inc. CEO Richard Smith said in a written statement that the FCC's decision is a "colossal error" that threatens the financial stability of his company and other inmate phone providers. He said Securus, one of the largest providers of inmate phone services, would join other companies in a request for court intervention.
Two years ago, the FCC voted to restrict rates on inmate calls made from one state to another. The new changes go further, capping rates on all local, in-state long distance, interstate and international calls. The vast majority of inmate calls will cost no more than $1.65 for 15 minutes, although slightly higher rates will be allowed in some smaller institutions. And fees and other costs, which in some cases have boosted calls to $17 to $25 for 15 minutes, also would be limited. The changes will take effect in prisons early next year and in jails by midyear.
Commissioners Ajit Pai and Michael O'Rielly, both Republicans, dissented, saying they believed they didn't have the authority to take such action. Jonathan Thompson, executive director of the National Sheriffs' Association, said the group is "very disappointed."
"We believe also that inmates should have this capability to call, but unfortunately these new rates in all likelihood will mean that inmates will go without the ability to call and talk to their family members," he said. "How many, we don't know."
The changes don't ban profit-sharing commissions that have benefited jail and prison operators and in some cases made calls costlier, although the amount of money coming in will likely be lower. Even before Thursday's vote in Washington, however, some states had voluntarily moved to reduce or ban the commissions.
Federal judge makes extended pitch for individuals to receive deferred-prosecutions agreements from DOJ
This new CNN story, headlined "Judge: Prosecutors should give drug offenders same break as companies," reports on the remarkable coda that appears at the end of a remarkable federal district court opinion handed down this past week. The start of the CNN story provides a link to the opinion and its highlights:
Some defendants charged with drug crimes should be offered a second chance the way corporations often are. U.S. District Judge Emmet G. Sullivan proposed this in an 84-page opinion in cases against two corporations this week.
Sullivan approved a settlement that will allow the companies, each facing allegations of bribery to win government contracts, to settle criminal charges. They won't have to plead guilty and won't face trial as long as they stay out of trouble in the future.But he used the opinion to make a broader point about what he sees as a disparity in how the legal system treats corporations and nonviolent offenders.
"Drug conspiracy defendants are no less deserving of a second chance than bribery conspiracy defendants," Sullivan wrote. "And society is harmed at least as much by the devastating effect that felony convictions have on the lives of its citizens as it is by the effect of criminal convictions on corporations."Sullivan, who is in Washington, D.C., asked why companies get a shot at "rehabilitation" when many individuals do not.
Here are just a couple of notable paragraphs from the remarkable closing sections of US v. Saena Tech Corp. penned by Judge Sullivan:
Although the Court approves the two deferred-prosecution agreements in these cases, the Court observes that the current use of deferred-prosecution agreements for corporations rather than individual defendants strays from Congress’s intent when it created an exclusion from the speedy trial calculation for the use of such agreements. The Court is of the opinion that increasing the use of deferred-prosecution agreements and other similar tools for individuals charged with certain non-violent criminal offenses could be a viable means to achieve reforms in our criminal justice system....
The Court respectfully requests the Department of Justice to consider expanding the use of deferred-prosecution agreements and other similar tools to use in appropriate circumstances when an individual who might not be a banker or business owner nonetheless shows all of the hallmarks of significant rehabilitation potential. The harm to society of refusing such individuals the chance to demonstrate their true character and avoid the catastrophic consequences of felony convictions is, in this Court’s view, greater than the harm the government seeks to avoid by providing corporations a path to avoid criminal convictions. If the Department of Justice is sincere in its expressed desire to reduce over-incarceration and bolster rehabilitation, it will increase the use of deferred-prosecution agreements for individuals as well as increase the use of other available resources as discussed in this Opinion.
Extraordinary tales of extraordinary government dsyfunctionality in execution business
In this recent post I spotlighted the remarkable reporting by BuzzFeed News about the peculiar fellow in India who has become a central figure in some states' efforts to get their machinery of death up and running again. Continuing their great investigavtive journalism in this space, BuzzFeed now has up two additional reports documenting how a trio of states apparently violated federal laws in order to try to import lethal injection drugs from this fellow. Here are links to the two pieces with their extended headlines:
"Arizona, Texas Purchased Execution Drugs Illegally Overseas, But FDA Halts The Import: Both Arizona and Texas attempted to illegally import sodium thiopental in July, but the shipments are still being held at the airports. Nebraska also attempted to import the same drug illegally this summer, as previously reported."
"Three States Bought Illegal Execution Drugs From Supplier In India: Chris Harris, the execution drug salesman who has been the focus of ongoing reporting by BuzzFeed News, sold drugs to Texas, Arizona, and Nebraska."
Here is how the second of these two articles concludes:
The FDA has consistently maintained that importing sodium thiopental would be illegal, but the states proceeded regardless. FDA records first reported on Thursday by BuzzFeed News show that two shipments of sodium thiopental made their way to the Phoenix and Houston airports in late July.
On Friday, TDCJ’s Clark told BuzzFeed News that, after obtaining an import license from the DEA prior to the shipment, TDCJ filed the required notice with the agency of the anticipated shipment.
After the shipments were held upon arrival, Arizona Department of Corrections Director Charles Ryan wrote to the FDA in August, asking them to release the drugs. “The Department will not use, or attempt to use, the cargo until it is either unconditionally released by FDA or the Department is otherwise permitted to do so by a Court Order, whichever comes first,” Ryan wrote. “I am writing to advise you that we need to take possession of the shipment.”
The FDA was not persuaded. Domenic Veneziano, who heads the FDA division that handles imports, replied, “FDA has determined that this shipment should not be allowed to move to destination at this time and thus will not be requesting that CBP lift its detention.”
For its part, Texas isn’t giving up yet, with TDCJ’s Clark telling BuzzFeed News on Friday that it “is going through internal proceedings set up for addressing the lawful status of imports with the Food and Drug Administration and is awaiting their decision.”
The FDA confirmed to BuzzFeed News on Friday that it was still holding the shipments. “Courts have concluded that sodium thiopental for the injection in humans is an unapproved drug and may not be imported into the country for this purpose. FDA has notified the state correctional facilities of the status of their respective shipments,” spokesperson Jeff Ventura wrote.
Asked whether, given the FDA’s repeated statements that such importation of sodium thiopental would not be allowed, TDCJ is challenging that position, TDCJ’s Clark responded, “We disagree with your characterization of the FDA’s statement as to the legality of importing sodium thiopental, we are appealing the detention of the drugs through the FDA’s internal proceedings.”
As if this story of government dysfunctionality was not ugly enough on its own terms, this post by Kent Scheidegger at Crime & Consequences contends that the federal government is the one really acting outside the rightful reach of the law. His post is titled "FDA Blocks Execution Drug Importation Based on Erroneous Court of Appeals Decision," and it makes the case (as was made in a slightly different way by Ohio officials) that the FDA is off-base and over-reaching in this arena.
In addition to wanting to note that my expertise on the death penalty comes up short when the issues is federal and state squabbles over federal drug and import laws, I am now especially eager to stress that I have been calling for Congress for nearly a decade to conduct hearings and investigate all the difficulties states have been facing with lethal injections protocols and securing executions drugs. But, as one commentors suggested in response to my post on this topic in May 2014, perhaps the only way we woud get hearing on this topic in short order would be if there was some link to Benghazi.
Some prior related posts:
- Investigating the international drug dealer working with some death penalty states
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- How could (and should) Congress clean up the lethal injection mess? (from April 2006)
- A lethal hearing (in the wrong place?) (from Sept 2006)
- Shouldn't Congress be holding hearings to explore federal and state execution methods? (from April 2014)
Great Hastings Law Journal coverage of federal sentencing circa 2015
Earlier this year, I had the honor of participating in a Hastings Law Journal symposium on federal sentencing reform a decade after Booker. During the live event back in February, I thought that the written product of the symposium would be terrific if it captured even just a small piece of the many ideas developed during the live event. This current issue of Hastings Law Journal has these resulting articles, and they are all terrific:
Keynote Address: Federal Sentencing Reform Ten Years After United States v. Booker by Hon. Charles Breyer
Saturday, October 24, 2015
Justice Anthony Kennedy condemns extreme US punishments as "ongoing injustice of great proportions"
This new piece in the Harvard Gazette, headlined "Kennedy assails prison shortcomings," highlights that an especially notable Supreme Court justice is saying some especially notable things about the US criminal justice system. Here is how the piece gets started:
Without mincing words, U.S. Supreme Court Justice Anthony Kennedy disparaged the American criminal justice system on Thursday for the three prison scourges of long sentences, solitary confinement, and overcrowding.
“It’s an ongoing injustice of great proportions,” said Kennedy during a conversation with Harvard Law School (HLS) Dean Martha Minow at Wasserstein Hall, in a room packed mostly with students.
Kennedy criticized long prison sentences for the high costs associated with them. (In California, where Kennedy comes from, the cost per prisoner is $35,000 per year, he said.) He also said long sentences have appalling effects on people’s lives.
Solitary confinement, he said, “drives men mad.” He called mandatory minimum sentences “terrible” and in need of reform. Sentences in the United States, he said, are eight times longer than sentences in some European countries for equivalent crimes. With more than 1.5 million prisoners in federal, state, and local jails, the United States has the world’s largest prison population.
The worst of the matter, he said, is that nobody pays attention to this wrong, not even lawyers. “It’s everybody job to look into it,” he said.
Kennedy, LL.B. ’61, whose views on the court reflect a preoccupation with liberty and dignity, has often been described as the high court’s swing vote on major issues. But during his talk with Minow, he said he hated to be depicted that way. “Cases swing. I don’t,” he quipped, as the room erupted in laughter.
Friday, October 23, 2015
Would Paul Ryan as House Speaker dramatically improve prospects for federal sentencing and marijuana reform?
The question in the title of this post post prompted by this news that "Rep. Paul Ryan officially declared his bid for House speaker Thursday after consolidating the support he needs to be elected by his colleagues next week," and Ryan's prior comments about sentencing reform and marijuana policy. Specifically, as detailed in a bunch of older prior posts linked below, Ryan back in 2012 stated that he favored allowing states to set their own marijuana policies, and in 2014 Ryan expressed support for the Smarter Sentencing Act and released an anti-poverty plan that stressed the need for federal sentencing reforms in order "to tap [past offenders'] overlooked potential and ameliorate the collateral impact on children and families."
Of course, past statements and policy positions often get conveniently forgotten or can even change dramatically when a politician pursues a new leadership role at a new political time. (For example, as stressed in this post on my marijuana reform blog Donald Trump once suggested full legalization would be the only way to "win" the drug war, but to date nobody in the MSM has asked about this position or pressed him about his views on the potential economic benefits of marijuana legalization.) So it is possible that Ryan as House Speaker would not prioritize or even now fully support significant federal sentencing and marijuana reforms.
But, as regular readers know well, there is a significant generational divide (especially within the GOP) concerning federal criminal justice reform issues. Generally speaking, younger politicians like Ryan have been much more supportive of reform (and vocal about their support of reform) than older folks like out-going House Speaker John Boehner. Consequently, even if Ryan as House Speaker might not be inclined to make criminal justice reform a top priority, I suspect the younger GOP generation with which he is linked could considerably increase the chances that the House become much more invested and aggressive in making big federal criminal justice changes in the months and years ahead.
A few prior related posts about (future long-time House Speaker?) Paul Ryan and the true conservative case for federal sentencing and marijuana reform:
- VP candidate Paul Ryan says states should have right to legalize medical marijuana
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
- Paul Ryan joins chorus of GOP young guns supporting sentencing reform and Smarter Sentencing Act
- Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform
- Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms
- Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"
- "Right on Crime: A Return to First Principles for American Conservatives"
October 23, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)
"Utah latest red state grappling with death penalty"
The title of this post is the headline of this notable local article reporting on a notable new discussion about the death penalty in the Beehive State. Here are the basics:
For the first time in years, Utah lawmakers are debating the merits of the death penalty, with some conservative Republican legislators questioning whether the cost and risk of executing innocent people argued for doing away with executions in the state.
"I'd pull the switch if I knew the person was guilty, and I have no problem with an eye for an eye," said Sen. Mark Madsen, R-Saratoga Springs. "But it is not a conservative value to have blind, slavish faith in government and to assume that they'll always get it right just because they have a badge or work in the prosecutor's office and we've invested them with a lot of authority."
Members of the Legislature's Judiciary Interim Committee heard from a pair of legislators in Nebraska about why that state recently abolished capital punishment, and critics of the death penalty who said the cost is exorbitant and the risk of executing innocent people is very real.
Madsen, the committee chairman, described his own evolution on the issue, to the point where he would support following the lead of legislatures in other states and do away with the death penalty. Other states are already moving in that direction.
Last week, Ohio Gov. John Kasich granted a reprieve to inmates scheduled for execution in 2016, since the state has been unable to obtain the drugs used in lethal injections. The attorney general in Oklahoma announced a one-year moratorium on executions after it was found the state used the wrong drug in its most recent case. Earlier this month, a judge in Montana blocked executions in that state for the same reason.
And the Nebraska Legislature repealed the death penalty earlier this year, but a petition drive seeking to reverse the move has blocked the repeal from taking effect until after the 2016 election.
Nebraska Republican Sen. Brett Lindstrom told the committee by phone that he supported the death penalty a year ago, but botched executions in other states and concerns about the cost and false convictions led him to a change of heart. "It just wasn't something that was working all that well in the state of Nebraska," he said....
The prospects for such a major shift among Utah's conservative Legislature are unclear, and neither Madsen nor any other Utah lawmaker is currently sponsoring a bill to end the death penalty. "I don't think Utahns think that much about the death penalty because it hardly ever happens in our state, but when it does, it's a horrific thing," said Rep. Steve Handy, R-Layton. But he acknowledged polls continue to show public support for the practice. "I don't see — and I'm going to say, unfortunately — too much of an appetite to ban the death penalty."
Handy cited figures he had prepared by legislative analysts in 2012 that showed executing a hypothetical 25-year-old convict would cost the state $1.6 million more than it would cost to incarcerate the same inmate for the rest of his or her life. And the state, at that time, spent $1.75 million a year handling death-row appeals.
More compelling to several lawmakers, was the risk of wrongly executing an inmate. Jensie Anderson from the Rocky Mountain Innocence Project said there are estimates that 4 percent of those on death row in the United States are innocent. Since 1973, there have been 156 death-row convicts who have been exonerated — one exoneration for every nine inmates put to death. "The problem is the system gets it wrong," she said....
But some, like Rep. Dixon Pitcher, R-Ogden, has no problem with continuing the current course. He and Handy knew Carol Naisbitt and her son Cortney, who were shot in the back of the head during the Ogden Hi-Fi murders in 1974. Carol was killed and Cortney lived with debilitating injuries until he died in 2002. Their killers, Pierre Dale Selby and William Andrews, were executed in 1987 and 1992, respectively.
Pitcher said he trusts the checks in place in the justice system to get it right and would be "opposed to taking [the death penalty] off the table."...
House Minority Leader Brian King, D-Salt Lake City, said the process of going through an execution itself is detrimental to society. "It's not the high road that I think we as a state and we as a country should be on, and the existence of the death penalty for me is a very coarsening thing," King said.
Perspectives on new law enforcement sentencing reform group and Prez Obama's engagement
In addition to the Senate's work on SRCA 2015 (basics here and here), the other big sentencing reform news this week has been the emergence of the new group Law Enforcement Leaders to Reduce Crime and Incarceration (basics here), and President Obama's re-engagement with criminal justice reform matters (basics here). These developments connected on Thursday through events at the White House involving The Marshall Project and well-reported in these pieces:
- Top Cops and Prosecutors Form Alliance to Battle Crime and Prison Crowding
- Obama Defends Black Lives Matter Movement in Talk With The Marshall Project
Excitingly, among the persons involved in all this important activity is FOB (Friend Of Blog) Mark Osler, and Mark late yesterday provided this exclusive insider view for reporting here:
I am one of the 130 members of a new group Doug recently wrote about, the Law Enforcement Leaders to Reduce Crime and Incarceration. That said, I suspect that I am (once again) the admission department's mistake, as nearly all of the others involved were or are now the head of some sort of law enforcement agency. The group includes the current police chiefs for New York, Los Angeles, Chicago, Houston, Washington DC, Dallas, Denver, San Francisco, Seattle, San Diego, Salt Lake City, Milwaukee, Minneapolis, Miami, Fresno, and Richmond (both Virginia and California) along with dozens of other current and former police chiefs, District and U.S. Attorneys, and sheriffs. Each has signed on to a common mission: reducing incarceration while continuing to reduce crime.
At its core, this represents a rejection of what many assume: That more incarceration necessarily and uniformly operates to keep us safe. Those on the front lines of crime-fighting in America's cities now are beginning to reject that idea and move towards more creative and effective techniques such as community policing and mental health treatment.
The public launch of the group this week included discussion sessions and a meeting with President Obama at the White House, coordinated by the Brennan Center.
Over the course of the two days, I was struck by the general unanimity of the group on the core issues of incarceration and crime control. Certainly, there is a recognition among the members that different cities present distinct challenges, and that there is no "one-size-fits-all" solution, yet there is broad agreement that this is the moment to move away from incarceration as a primary metric for success. A man in jail does not always represent a problem solved.
In his remarks, President Obama was focused and surprisingly informed on the state of criminal law at both the state and federal level. It's no secret that these issues have increasingly captured his attention, and he seemed to relish talking about it with an audience partly composed of police chiefs in uniform. Much of what he said was of specific interest to this group; for example, he noted the importance of changing the incentives for prosecutors away from simply obtaining high sentences, and (in response to a question) noted that going forward the collection and use of data is going to only become more important. He also argued that long terms of incarceration offer diminishing returns, even with violent offenders.
He challenged the audience on racial issues, too, saying that the Black Lives Matter movement raises "a legitimate issue that we have to address."
What happens next for this group will be crucial. Its very existence, though, represents a shifting of tectonic plates on the landscape of criminal justice.
Thursday, October 22, 2015
"Heroin as an execution drug?"
The title of this post is the headline of this notable Columbus Dispatch article discussing the legislative conversation starting to emerge in the wake of the recent decision by Ohio Gov Kasich to extend the state's de facto moratorium on executions due the the continuing difficulty securing lethal injection drugs (noted here). Here are excerpts:
As Ohio continues to struggle to find the drugs needed to carry out executions of death row inmates, the president of the Ohio Senate says it may be time to find other methods. “If we can’t get the drugs that our protocol calls for, either we need to change our protocols, or we need to think about other solutions,” said Senate President Keith Faber, R-Celina.
“There are a lot of people out there talking about other solutions. I’ve heard everything from using heroin, to using nitrogen, to going back to the electric chair. That’s a debate we probably need to have.”
The state's has not executed an inmate since Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time anywhere in the U.S. The state last week canceled all executions for 2016 and there are now 24 inmates with executions scheduled into 2018.
A law that Gov. John Kasich signed in December allowing prison officials to secretly buy lethal-injection drugs from compounding pharmacies has not worked in getting Ohio the necessary drug mixture. Pharmacies have generally been unwilling to participate in a process that leads to little in sales but a potential for harsh blowback from the public if they are discovered.
The federal government has thus far blocked Ohio’s efforts to import the drugs from overseas, though the state continues to seek ways to do that. Asked if the state would bring back the electric chair known as “Old Sparky,” Faber said, “there are options out there.”
A few prior related posts:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- In defense of Ohio officials trying to figure out how to get execution drugs legally
- Ohio Gov Kasich extends de facto execution moratorium into 2017
SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
This press release from Senate Judiciary Committee Chairman Chuck Grassley reports on the continued legislative movement of the Senate's big Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123). Here are the basics via the press release:
The Senate Judiciary Committee today passed the Sentencing Reform and Corrections Act, which grants judges greater sentencing flexibility for certain low-level drug offenders and establishes recidivism reduction programs, while targeting violent criminals. The bill passed the committee by a vote of 15-5. The bill passed today includes minor clarifications to the original bill text.
The bill is the product of a thoughtful bipartisan deliberation led by Senate Judiciary Committee Chairman Chuck Grassley and Assistant Democratic Leader Dick Durbin. Original cosponsors include Senators John Cornyn (R-Texas), Sheldon Whitehouse (D-R.I.), Mike Lee (R-Utah), Charles Schumer (D-N.Y.), Lindsey Graham (R-S.C.), Patrick Leahy (D-Vt.), Cory Booker (D-N.J.) and Tim Scott (R-S.C.). Other cosponsors include Senators Thom Tillis (R-N.C.), Chris Coons (D-Del.), Jerry Moran (R-Kan.), Dianne Feinstein (D-Cal.), Jeff Flake (R-Ariz.), Richard Blumenthal (D-Conn.), Al Franken (D-Minn.) and Amy Klobuchar (D-Minn.).
“Today’s bipartisan Committee vote demonstrates the broad consensus that we can thoughtfully addresses the most serious and complex matters in prison sentencing. This bill preserves sentences necessary to keep violent offenders and career criminals out of our communities while addressing over-incarceration concerns and working to reduce recidivism. I’m grateful for the hard work and support of my colleagues on both sides of the aisle, and look forward to action by the full senate to move this historic reform forward,” Grassley said....
The bill narrows the scope of mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals, while broadening and establishing new outlets for individuals with minimal non-felony criminal histories that may trigger mandatory minimum sentences under current law. The bill also reduces certain mandatory minimums, providing judges with greater discretion when determining appropriate sentences, and preserves cooperation incentives to aid law enforcement in tracking down kingpins.
In addition to reducing prison terms for certain offenders through sentencing reform, qualifying inmates can earn reduced sentences through recidivism reduction programs outlined in the CORRECTIONS Act introduced by Cornyn and Whitehouse. The bill also makes retroactive the Fair Sentencing Act and certain statutory reforms that address inequities in drug sentences.
Recent prior related posts on SRCA 2015:
- Bipartisan federal sentencing reform bill due to emerge from Senate today
- Basic elements of Sentencing Reform and Corrections Act of 2015
- Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
- Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
- Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
Investigating the international drug dealer working with some death penalty states
BuzzFeed this week published this fascinating report on a curious person who has become a central figure in some states efforts to get their machinery of death up and running again. The article's full headline highlights why the piece merits a full read: "This Is The Man In India Who Is Selling States Illegally Imported Execution Drugs: When states ran out of execution drugs, they started paying tens of thousands of dollars to Chris Harris, a salesman in India with no pharmaceutical background." Here is how the extended article gets started:
Eight thousand miles from the execution chamber at the Nebraska State Penitentiary is Salt Lake City — a planned satellite town in Kolkata, the capital city of India’s West Bengal state. It’s a modern mecca of swanky office complexes, colleges, shopping malls, and restaurants. Here, on the eighth floor of a plush glass building overlooking a lake, is an office where Nebraska’s lethal injection drug supplier says he makes his drugs.
A laminated paper sign stuck on the door of room 818 reads “Harris Pharma - manufacturer and distribution.” The office, with powder-blue walls and a frosted glass facade, is one of 61 spaces on the floor rented out to various companies.
This is the facility in India where a man named Chris Harris, a salesman without a pharmaceutical background, claims his manufacturing and distribution business is based. He has sold thousands of vials of execution drugs for corrections officials in the U.S. who are desperate to find drugs to carry out the death penalty. An employee who works at the facility, however, said the office is not being used to make drugs.
Saurav Bose, a customer relations officer at the office rental company who has met Harris twice since he started working here a few months ago, said Harris did not manufacture drugs in this rented office. Harris’s office, which was shut on a Tuesday morning when a reporter from BuzzFeed News visited, is much like the other ready-to-use, standardized workspaces available to rent by Regus — an international firm operating in 900 cities across the world, including the more well-known Salt Lake City in Utah. It appeared highly unlikely that the rented office would accommodate laboratory equipment required to manufacture pharmaceutical drugs.
“He comes only two to three times in a month,” Bose said, adding that most of his communication with Harris was limited to email. Bose, who described Harris as being “fickle” with his visits to the office, said he rarely had any clients or other people in the office.
BuzzFeed News identified several such inconsistencies after reviewing thousands of pages of court records, emails, and invoices; interviewing his past business partners; and visiting the locations in India from which Harris claims to run his business. BuzzFeed News spent more than four months trying to talk to Harris over emails, via phone calls and during a visit to his office in India. Each time, Harris refused to talk.
“Quote me on this. I don’t speak to reporters as they always say what is not true,” Harris told BuzzFeed News when first contacted for comment in June. After months of reporting on his sale to Nebraska, Harris again declined to talk with BuzzFeed News in September, writing, “Do and say what you want. But I will never give a reporter 2 min of my time. As all print what they want. Not the true story. They need a scandal to get sales and keep they jobs.”
BuzzFeed News has been able to confirm four times that Harris sold execution drugs illegally to four death penalty states, and documents indicate there is likely a fifth. His sales follow a typical script: The legal issues are fixed this time, don’t worry about it. Other states are buying it, too. You aren’t the only one. You just need to make it a “minimum order” to make it worth the while. Payment in advance. The documents show little effort by states to investigate Harris’s qualifications or the legalities of importing drugs.
Harris has gotten states to pay tens of thousands of dollars for his drugs, but each time, after concerns were raised over the legality of the purchase, the drugs have gone unused. Somehow, states are still falling for it.
Great Supreme Court Fellows opportunity for all current and future sentencing researchers/advocates
I was pleased and honored to receive a call yesterday from Office of the Counselor to the Chief Justice of Supreme Court of the United States concerning the Supreme Court Fellows program. Though I have long been aware of this terrific program, I was not surprised to learn that the opportunity to be detailed to the US Sentencing Commission as part of the Fellows program may not be widely known. These links and information about the program were sent my way by the Counselor's Office to make sure this opportunity gets all the attention (and applicants) that it merits:
Attached [below is ] a flyer describing the Supreme Court Fellows Program. More information is available on the Supreme Court Fellows Program website, as is the online application.
We are very grateful for your consideration of promoting the opportunity on the Sentencing Law & Policy Blog, and in particular flagging the fellowship placement at the U.S. Sentencing Commission. As the description of placements indicates, this fellow will participate in professional teams conducting policy, legal, and social science research on the cutting edge of criminal sentencing reform. The breadth of the Commission’s work and its relatively small size provide the fellow with both a wide-ranging exposure to criminal law and opportunities for active participation in addressing sentencing issues. One quarter of the fellow’s time will be set aside for research and writing of a publishable scholarly work on a topic in criminal or sentencing law.
We very much appreciate anything you can do to call the fellowship to the attention of strong candidates, as well as others who might help us identify them. Our recruiting is targeted to current or recent law clerks who are exploring careers in academia or public service. The application deadline for 2016-17 fellowships is November 6, 2015.
Noting the notable decline in death sentences in Texas
A few years ago, I generally considered talk of the "death of the death penalty" to have been somewaht overstated even as a few new states abolished the death penalty and a few other states struggled with executions. In the past I saw the talk as overstated largely because committed death penalty states like Texas and a few others were still regularly carrying out executions and because most years nationwide still more murderers were getting sentenced to death row than we getting released from death row.
But now, circa fall 2015, with Arkansas, Ohio and Oklahoma all recently halting scheduled execution plans because of continued lethal injection problems and litigation even after the Glossip ruling, I see more to the talk of the death penalty's demise. And this notable death penalty administration story out of the Lone Star State, headlined "Texas Poised to See New Low in Death Sentences," provides more reason for justified excitement among death penalty abolitionists. Here are the details:
Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976. In the past two weeks, two new inmates arrived on Texas’ death row — the state’s first two death sentences of 2015. A jury sentenced a man to death in a third case, but he is awaiting a competency trial, so that sentence is unofficial.
Kathryn Kase, executive director of Texas Defender Services, a nonprofit organization of death penalty attorneys, said that there is one new death penalty trial underway and another case “threatening to go” for a death penalty. “That’s a very low number [of cases] for Texas," Kase said. “We see fewer cases overall going to the death penalty across the country, and that’s no different in Texas.”
In 2011, eight people were sentenced to death in Texas, currently the lowest number for any full calendar year, according to TDCJ. Kase said that there had been three other death penalty cases this year, all ending in sentences of life without parole.
Experts often point to the 2005 introduction of a penalty of life without parole in the state as a reason for the decline in death sentences in recent years. In 2015, however, there has been a drastic drop from even last year, when there were 11 death sentences handed out.
There are many theories on the cause of this year’s drop, including new legislation from 2013 on criminal discovery reform and prosecutors pursuing the death penalty less often, Kase said. “You see prosecutors who are more concerned about innocence, more concerned about intellectual disabilities,” Kase said.
Robert Kepple, executive director of the Texas District & County Attorneys Association, points to a simpler reason for the decrease: a lower crime and murder rate. “We shouldn’t be surprised that death penalty cases are going down when there have been less murders,” Kepple said. “That’s a success story.”
The three death sentences handed down by Texas juries this year were all within the last two weeks. The sentences came 10 months after Eric Williams was sent to death row in December for the 2013 killing of the Kaufman County district attorney's wife, Cynthia McLelland. It was the state’s longest stretch between new death sentences since the death penalty was reinstated, Kase said, adding that the timing of the three cases is “purely coincidental."
Wednesday, October 21, 2015
Notable new group advocating for sentencing reforms: Law Enforcement Leaders to Reduce Crime and Incarceration
I was intriguing and pleased to receive this press release this morning, titled "130 Top Police Chiefs and Prosecutors Urge End to Mass Incarceration." The release explains the creation and commitments of a notable new public policy group. Here are excerpts from the press release (with links and emphasis from original):
Today 130 police chiefs, sheriffs, prosecutors, and attorneys general from all 50 states join together as a surprising new voice calling for the end to unnecessary incarceration in the U.S. while maintaining public safety.
The new group, Law Enforcement Leaders to Reduce Crime and Incarceration, marks an unprecedented partnership among the nation’s top law enforcement leaders to push reforms to reduce incarceration and strengthen public safety. At a press conference today in Washington, D.C., police chiefs from six of the largest U.S. cities, including New York, Los Angeles, Chicago, Washington, D.C., Houston, and New Orleans, will announce their policy agenda, featured in a Statement of Principles.
President Barack Obama will host members of the group at the White House tomorrow, where group leaders will speak on why they believe reducing imprisonment while protecting public safety is a vital national goal....
“As the public servants working every day to keep our citizens safe, we can say from experience that we can bring down both incarceration and crime together,” said Law Enforcement Leaders Co-Chair Garry McCarthy, Superintendent of the Chicago Police Department. “Good crime control policy does not involve arresting and imprisoning masses of people. It involves arresting and imprisoning the right people. Arresting and imprisoning low-level offenders prevents us from focusing resources on violent crime. While some may find it counterintuitive, we know that we can reduce crime and reduce unnecessary arrests and incarceration at the same time.”
Members of the group will work within their departments as well as with policymakers to pursue reforms around four policy priorities:
• Increasing alternatives to arrest and prosecution, especially mental health and drug treatment. Policies within police departments and prosecutor offices should divert people with mental health and drug addiction issues away from arrest, prosecution, and imprisonment and instead into proper treatment.
• Reducing unnecessary severity of criminal laws by reclassifying some felonies to misdemeanors or removing criminal sanctions, where appropriate.
• Reducing or eliminating mandatory minimum laws that require overly harsh, arbitrary sentences for crimes.
• Strengthening ties between law enforcement and communities by promoting strategies that keep the public safe, improve community relations, and increase community engagement.
“Our decision to come together reflects the deep commitment among law enforcement’s ranks to end unnecessary, widespread incarceration,” said Law Enforcement Leaders Co-Chair Ronal Serpas, former Superintendent of the New Orleans Police Department. “As leaders of the law enforcement community, we are committed to building a smarter, stronger, and fairer criminal justice system. We do not want to see families and communities wrecked by our current system. Forming this new organization will allow us to engage policymakers and support changes to federal and state laws, as well as practices, to end unnecessary incarceration.”
Evangelical group adds interesting nuance to death penalty stance
As reported in this Christian Science Monitor article, a notable religious group has made a notable change in its death penalty position. The article's headline(s) provide the basics: "Why US evangelicals are changing their position on the death penalty: The National Association of Evangelicals has officially supported the death penalty for more than 40 years. They have now softened their stance." Here are the details:
As the death penalty continues to lose favor with Americans, the National Association of Evangelicals has adjusted its position on the practice. Since the early 1970s, the NAE has supported capital punishment as a deterrent to criminals. But on Monday, the organization — which represents more than 45,000 churches from almost 40 different denominations, serving millions of Americans — passed a resolution that acknowledges growing opposition and differing views on death penalty.
"Evangelical Christians differ in their beliefs about capital punishment, often citing strong biblical and theological reasons either for the just character of the death penalty in extreme cases or for the sacredness of all life, including the lives of those who perpetrate serious crimes and yet have the potential for repentance and reformation," the resolution states. "We affirm the conscientious commitment of both streams of Christian ethical thought."...
White evangelical support for the death penalty has waned recent years, from 77 percent in 2011 down to 71 percent in 2014, according to a March survey from the Pew Research Center. At the same time, 66 percent of white mainline Protestants and 63 percent of white Catholics favor the death penalty. Overall, the survey shows American support for the death penalty has dropped from 78 percent in 1996 to 56 percent in 2014.
Tuesday, October 20, 2015
Federal judge decides (finally!) that Congress has limited DOJ prosecution of state-legal marijuana businesses
As regular readers may recall, Section 538 of a spending bill passed late last year by Congress forbids the use of money by the Department of Justice to interfere with State laws implementing medical marijuana programs. The meaning and application of this federal spending limitation on DOJ has been the subject of much dispute and some notable litigation, and yesterday brought a big ruling by US District Judge Charles Breyer. This article from California, headlined "Major victory for marijuana dispensary in federal court," provides the details:
Lawful medical cannabis operators across America scored a major victory in federal court [after] United States District Judge Charles R. Breyer ordered the lifting of an injunction against one of California’s oldest lawful dispensaries, the Marin Alliance for Medical Marijuana.
Judge Breyer ruled that newly enacted Congressional law — the Rohrabacher-Farr Amendment — prevents the government from prosecuting the Fairfax-based Marin Alliance for Medical Marijuana, and its founder Lynette Shaw. The ruling in the United States District Court for the Northern District of California will have far-reaching legal impact, attorneys say....
In December, Congress de-funded the Justice Department’s war on medical marijuana in the states. Howver, the Justice Department has been narrowly interpreting Congressional law to continue the crackdown. The law’s authors contend Justice is breaking Congressional law by going after state-legal cannabis activity.
In June, Shaw’s attorney Greg Anton motioned for the Court to dissolve the injunction against Shaw, citing the new Rohrabacher-Farr Amendment (Section 538). Judge Breyer ruled, “the plain reading of [Congressional law] forbids the Department of Justice from enforcing this injunction against MAMM to the extent that MAMM operates in compliance with state California law.”
Judge Breyer ruled WAMM had been complying extensively with state law. “The mayor of the Town of Fairfax [stated] MAMM was operating as a model business in careful compliance with its local use permit in a ‘cooperative and collaborative relationship’ with the community,” Breyer noted in his ruling.
Judge Breyer’s ruling hands a shield to every state-legal pot shop facing federal action, lawyers state. It sets a precedent that will likely chill federal prosecutors eyeing state-legal medical cannabis enterprises, said the law office of attorney Robert Raich, through a spokesperson.
“We finally have a federal judge who is taking the authors of the spending amendment seriously when they say the intent and its wording should be interpreted so that the federal government should not be spending resources prosecuting individuals complying with state law.”
It represents a major setback for the Department of Justice, which had hoped Rohrabacher-Farr would be interpreted far more narrowly.
The full ruling by Judge Breyer is available at this link.
Some previous related posts:
- Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws
- Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?
- Notable developments in dispute over meaning and application of Section 538 limiting DOJ funding
Arkansas Supreme Court stays execution to allow lethal injection litigation
As reported in this AP article, a partial ruling in favor of the state today by the top court in Arkansas was insufficient to allow the state to move forward with a number of scheduled executions. Here are the details:
The Arkansas Supreme Court ruled Tuesday that a lower-court judge overstepped his jurisdiction by halting the executions of eight death row inmates. But the high court immediately granted its own stay to give the inmates time to challenge a new state law that bars Arkansas from disclosing its execution-drug supplier.
The justices sided with the state in agreeing to toss this month's order by Pulaski County Circuit Judge Wendell Griffen. Still, Attorney General Leslie Rutledge said she was disappointed that the executions, the first of which was scheduled for this week, remained on hold. "While the Supreme Court's decision is not about the merits of the case, it is unfortunate that this further delays justice for the victims. I will continue to defend Arkansas's lethal injection statute and fight for the victims and their grieving families," Rutledge wrote in a statement Tuesday.
The high court also refused to order Griffen to schedule an earlier hearing in the case. He set the next hearing for March, just months before one of the state's execution drugs is set to expire. The attorney general's office had asked for a faster timetable, arguing that defense attorneys were trying to delay the case until the drug was no longer usable.
The prisoners are challenging the constitutionality of the state's new secrecy law, saying they need information about where and how the state's execution drugs were made to determine whether they will lead to cruel and unusual punishment. They also argue that the law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information, but the state has said the agreement was not a binding contract.
The inmates also are challenging Arkansas' three-drug execution protocol, focusing on the use of the drug midazolam. The sedative was implicated after inmates gasped and groaned during longer-than-expected executions in Oklahoma, Ohio and Arizona. "We realize there is a lot of litigation yet lying in front of us. But we feel the decision of the Supreme Court was the appropriate decision in this case," said Jeff Rosenzweig, an attorney for the inmates. "The state made a binding commitment to provide us with this information and we are entitled to this information."
"Dismantling the School-to-Prison Pipeline: Tools for Change"
The title of this post is the title of this notable new article by Jason Nance available via SSRN. Here is the abstract:
The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system such as excluding them from school.
This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement. Further, it suggests initial strategies aimed at addressing racial implicit bias, which is a primary cause of the racial disparities relating to the school-to-prison pipeline. The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system.
Ohio Gov Kasich extends de facto execution moratorium into 2017
Earlier this year during SCOTUS oral argument in the Glossip lethal injection case, Justice Alito complained about what he saw as a "guerrilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment." For anyone inclined to accept that characterization, today brings news that the warriors have scored another significant victory. This new AP piece, headlined "Ohio delays executions until 2017 over lack of lethal drugs," provides the basic details:
Ohio is putting off executions until at least 2017 as the state struggles to obtain supplies of lethal injection drugs, delaying capital punishment for a full two years, the prisons department announced Monday. Execution dates for 11 inmates scheduled to die next year and one scheduled for early 2017 were all pushed into ensuing years through warrants of reprieve issued by Gov. John Kasich.
The result is 25 inmates with execution dates beginning in January 2017 that are now scheduled through August 2019. Ohio last put someone to death in January 2014.
Ohio has run out of supplies of its previous drugs and has unsuccessfully sought new amounts, including so-far failed attempts to import chemicals from overseas. The new dates are needed to give the prisons agency extra time, the Department of Rehabilitation and Correction said in a statement.
The agency “continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions, but over the past few years it has become exceedingly difficult to secure those drugs because of severe supply and distribution restrictions,” the statement said....
The next execution was scheduled for Jan. 21 when Ronald Phillips was to die for raping and killing his girlfriend’s 3-year-old daughter in Akron in 1993. Phillips’ execution was rescheduled for Jan. 12, 2017.
The handwriting has been on the wall for months that Ohio would have to make such a move, said Franklin County Prosecutor Ron O’Brien, expressing his frustration at a new set of delays. These delays come in cases where inmates have long exhausted their appeals and there’s no question of their guilt, he said. “It seems that in those states that authorize assisted suicide, there has been no impediment to securing drugs, and as time marches onward, victims wonder why they must continue to wait for justice,” O’Brien said in an email.
Ohio abandoned the two-drug method after McGuire’s execution and announced it would use either of two older drugs that it had previously obtained for capital punishment, but did not currently have supplies of. One of those drugs, sodium thiopental, is no longer manufactured by FDA-approved companies and the other, pentobarbital, has been put off limits for executions by drug makers.
Ohio obtained a federal import license to seek supplies overseas, but has been told by the FDA that such a move is illegal. Ohio raised the issue again with the FDA earlier this month, asserting the state believes it can obtain a lethal-injection drug from overseas without violating any laws. The FDA has yet to respond.
A few prior related posts:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- In defense of Ohio officials trying to figure out how to get execution drugs legally
Monday, October 19, 2015
The title of this article is the title of this interesting new article by Rachel Harmon I just noticed on SSRN. Here is the abstract:
It is no exaggeration to say that arrests are the paradigmatic police activity. While many debate the necessity of particular arrests, neither participants in the criminal justice system nor contemporary critics have seriously considered whether law enforcement – as a general matter - requires arrests.
This essay challenges the long-held assumption that, even if not every arrest is legitimate, arrests as a general matter are worthwhile because they are critical to law enforcement goals. As recent news events have suggested, arrests are more harmful than they first seem, not only to the individuals arrested but also to their families and to society as a whole.
More importantly, our traditional justifications for arrests - starting the criminal process and maintaining public order – at best support a much more limited practice of arrest than we currently permit. Overwhelmingly, arrests can be replaced with alternatives, even for serious crimes, and neither public safety nor public order will likely much suffer. As a result, whether or not arrests are fairly imposed on individuals, contemporary arrest practice is illegitimate because the coercion it involves is largely unnecessary.
Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
As I continue to enjoy watching the still on-going big Senate hearing on the remarkable Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123), I now have noticed that all the written testimony is available on-line. Here are links to member statements all the submitted testimony, and I would be grateful to get help in figuring out if there is anything especially notable and interesting in all these materials. My sense is that all the usual suspects are repeating their usual claims and viewpoints, but perhaps there may be some special needles in this testimonial haystack:
Sally Quillian Yates, Deputy Attorney General
Michael Mukasey, Former Attorney General
Hilary O. Shelton, Senior Vice President for Policy and Advocacy, NAACP
Craig DeRoche, Executive Director, Justice Fellowship
Debi Campbell, Spotsylvania County, VA
Steven Cook, President, National Association of Assistant United States Attorneys
Marc Mauer, Executive Director, The Sentencing Project
Heather Mac Donald, Manhattan Institute for Policy Research, Inc.
Brett L. Tolman, Former United States Attorney for the District of Utah
October 19, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Who Sentences? | Permalink | Comments (12)
New York Times editorial rightly frames debate over federal judges' expungement power
Regular readers may recall this recent post highlighting the interesting (and hip?) legal issue arising in federal court lately concerning the inherent power of federal judges to expunge a federal conviction. This effective New York Times editorial, headlined "How to Get Around a Criminal Record," spotlights some of the unfortunate reasons this legal issue is now coming up for debate. Here are excerpts:
In May, a federal judge in Brooklyn took the extraordinary step of expunging the conviction of a woman he had sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme that netted her $2,500.... The move was significant because there is no federal law that allows for expungement — the permanent sealing of a criminal record to the general public....
Some 70 million to 100 million people in the United States — more than a quarter of all adults — have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges — from voting, employment and housing to business licensing and parental rights. Some of these collateral consequences make sense — like preventing people convicted of molesting children from working in schools. But many have no relation at all to the original offense.
The woman whose record Judge Gleeson expunged was hired repeatedly for social-work or health-care jobs, and then fired after employers ran a background check. As the judge wrote, it is “random and senseless” that her “ancient and minor offense should disqualify her from work as a home health aide.”
The federal government lags far behind in reducing the burdens of a conviction. About half the states allow some convictions to be expunged; almost all allow expungement for arrest records and other non-conviction records. Some expungements are automatic, while others require a petition to the court. Of course, expungement is not a cure-all. The vast majority of employers now run background checks, many using error-strewn databases that often fail to delete sealed records.
A better, increasingly popular approach is a “certificate of rehabilitation,” which state judges issue as a way of removing certain restrictions and encouraging employers and others to take a chance on someone despite his or her record.
Another solution is the executive pardon, which restores rights lost after a conviction. Pardons were once a common method of relief from injustice, and some state governors still use it vigorously. Gov. Jack Markell of Delaware has issued almost 1,600 pardons in six years. But President Obama, like his recent predecessors, has almost entirely abandoned the practice.
Mr. Obama’s former attorney general, Eric Holder, understood the importance of giving people with criminal records a better chance at finding jobs and regaining their foothold in society. And yet the Justice Department is reflexively fighting Judge Gleeson’s expungement order, calling it “judicial editing of history.”
If the White House or Congress made a real effort to alleviate the crippling consequences of criminal records — by increasing pardons, or passing laws to give courts more options to lessen or remove those burdens — there would be no need for judges to play the role of editors.
Some prior related posts:
- US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
- DOJ indicating it will appeal Judge Glesson's remarkable federal expungement order
- "Expunging America's Rap Sheet in the Information Age"
- "Clean Slate: Expanding Expungements & Pardons For Non-Violent Federal Offenders"
- "Administering Justice: Removing Statutory Barriers to Reentry"
- Federal judicial power to expunge old convictions getting lots of (hip?) attention in EDNY
October 19, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Michigan arrest data highlight diverse impact of local decriminalization and continued impact of state-level marijuana prohibition
This new local article, headlined "Michigan pot arrests are trending up, and 8 other points about marijuana," provides data that reinforce my concern that modest marijuana reforms do not really change the basic realities of how marijuana prohibition impacts individuals in various communities. Here are some of the notable data details:
At a time when surveys indicate a majority of Michigan residents support legalizing pot, arrests for marijuana possession or use are increasing — even as arrests for other crimes are going down, according to data collected by the Michigan State Police. Between 2008 and 2014, arrests for marijuana possession or use went up 17 percent statewide, that data shows, while arrests for all crimes dropped by 15 percent.
One possible reason: Federal health surveys indicate marijuana is the most commonly used illicit drug, and the number of regular users has been increasing. In 2013, about 7.5 percent of Americans age 12 or older had used marijuana in the past month, according the 2015 federal Survey on Drug Use and Health.
Below are other highlights from the Michigan arrest data, which was collected by the State Police from local and county enforcement agencies.
1. The vast majority of marijuana arrests are for possession or use.
In 2014, there were 20,483 arrests for marijuana use or possession, which was 86 percent of all marijuana arrests. About 10 percent of the other arrests are for selling the drug, and the remainder are for "producing" the drug, smuggling or "other." Arrests related to marijuana are about two-thirds of all drug arrests in Michigan and in 2014 were 9 percent of all criminal arrests.
2. A disproportionate number of those arrested for marijuana-related crimes are between the ages of 18 and 24.
About 43 percent of those arrested in 2014 for marijuana were age 18 to 24. The breakdown for other age groups: 26 percent were age 25 to 34; 11 percent were age 35 to 44; 9 percent were under 18; 7 percent were age 45 to 54, and 3 percent were sage 55 or older. The federal drug survey indicates that marijuana use is highest among young adults. In fact, 24 percent of male and 17 percent of female female full-time college students age 18 to 22 use marijuana, the survey shows.
3. The vast majority of those arrested in marijuana cases are men.
Men comprised 83 percent of marijuana arrests in 2014, which is disproportionate compared to their rate of usage. About 9.7 percent of American males age 12 and older are users of marijuana compared to 5.6 percent of women, according to a 2013 federal survey on drug use. That means men are 1.7 times more likely to use marijuana, but are five times more likely to be arrested on marijuana charges.
4. African-Americans are a disproportionate number of marijuana arrests.
An African-American in Michigan was three times more likely to be arrested in 2014 for violating marijuana laws compared to a white person, although surveys and research indicate little difference between usage rates between the two groups. In all, African-Americans comprise about 14 percent of Michigan's population, but 35 percent of marijuana arrests....
6. Since 2011, 21 Michigan cities have voted on legalizing or decriminalizing marijuana....
7. Decriminalization initiatives have had mixed impact on arrests in those communities.
Six communities — Detroit, Grant Rapids, Lansing, Kalamazoo, Flint and Ypsilanti — passed decriminalization initiatives before 2014. Based on arrests in those cities for marijuana use or possession in 2011 compared to 2014, the initiatives had mixed impact.
The most dramatic changed occurred in Grand Rapids, where arrests for marijuana use or possession dropped from 952 in 2011 to 93 in 2014. The numbers also dropped significantly between 2011 and 2014 in the city of Kalamazoo, from 327 to 166. In Detroit, arrests dropped from 1,297 to 974 during the three-year period.
Arrests for marijuana use or possession actually went up in Lansing and Ypsilanti. Lansing had 73 arrests for marijuana use or possession in 2011, compared to 79 in 2014. In Ypsilanti, arrests went from 74 to 88 during that time frame.
Cross-posted at Marijuana Law, Policy & Reform, where these additional recent posts may be of interest to sentencing fans:
- Who says reefer madness is dead, eh?
- Reefer madness or state law sanity?: Ohio AG sues Toledo after passage of local marijuana decriminalization measure
- First poll on Ohio ballot issues suggests marijuana legalization (and litigation) likely
- Could NFL's survival depend on medical marijuana breakthrough?
- California wisely includes mandated DUI research in recent medical marijuana reforms
- "Lessons from Washington and Colorado: The Potential Financial Gains of Recreational Marijuana to Canada"
- In first major Democrat Prez debate, Bernie Sanders says he'd likely vote for marijuana legalization; Hillary Clinton still has her finger in the air
- Latest swing-state polling shows huge support for ending blanket marijuana prohibition
An ever-growing list of notable witnesses for Senate hearing on Sentencing Reform and Corrections Act of 2015
As noted in this prior post, this week is a big one for consideration of the Senate's remarkable Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123). The fun starts this this afternoon with this big hearing on the bill before the full Senate Judiciary Committee. I am quite excited for this hearing, in part because everytime I check the official Senate hearing page, I see another interesting witness added to the witness list. As of Monday morning, here is the current roster of witnesses slated to testify:
- The Honorable Sally Quillian Yates, Deputy Attorney General
- The Honorable Michael Mukasey, Former Attorney General
- Mr. Hilary O. Shelton, Senior Vice President for Policy and Advocacy, NAACP
- Mr. Craig DeRoche, Executive Director, Justice Fellowship
- Ms. Debi Campbell, Spotsylvania County, VA
- Mr. Steven Cook, President, National Association of Assistant United States Attorneys
- Mr. Marc Mauer, Executive Director, The Sentencing Project
- Ms. Heather Mac Donald, Manhattan Institute for Policy Research, Inc.
- The Honorable Brett L. Tolman, Former United States Attorney for the District of Utah
I am very interested to hear what all nine of these notable witnesses have to say about SRCA 2015. Based on prior lectures and writings, I think I can safetly predict that three or four of these witnesses will be quite supportive of most or all of the bill, and that two or three of these witnesses will be quite critical of most or all of the bill. But I am unsure whether traditional supporters of federal sentencing reform will be advocating for SRCA 2015 to be even more expansive in its reforms and whether traditional critics of federal sentencing reform will assail all or only specific parts of SRCA 2015 in its current (complicated) form.
I am cautiously hopeful that there will be some submitted written testimony that I can share in a future post. Even before hearing any of the coming advocacy for and against the bill, the very fact that the witness list for this hearing is so long reinforces my sense (and fear) that passage of a big reform bill through both house of Congress remains an uphill and uncertain battle for reform advocates.
Recent prior related posts on SRCA 2015:
- Bipartisan federal sentencing reform bill due to emerge from Senate today
- Basic elements of Sentencing Reform and Corrections Act of 2015
- Can and should the US Sentencing Commission try quickly to help everyone take stock of the SCRA 2015?
- "Toward Saner, More Effective Prison Sentences"
- Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
- Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
Sunday, October 18, 2015
Referendum on legislative death penalty appeal now officially on Nebraska ballot for 2016
As reported in this local article, headlined "Death penalty supporters put repeal on hold till 2016 vote," Nebraska is going to be the locus and focus for a lot of death penalty debate over the next year. Here is why:
A pro-death penalty group has submitted enough valid signatures to postpone the repeal of capital punishment and place a referendum on the issue on the November 2016 ballot, it was confirmed Friday.
Nebraska Secretary of State John Gale said Friday that he has sent letters certifying the success of the petition drive mounted by Nebraskans for the Death Penalty, a group backed by Gov. Pete Ricketts.
The group launched a signature drive in June shortly after the Nebraska Legislature overrode a veto by Ricketts to abolish the death penalty in the state.
Gale said the petition drive had not only submitted enough signatures to force a vote on the issue during the 2016 general election, but also to postpone the repeal until that vote is taken. “More than 143,000 signatures were verified to our office from counties where signatures were collected, which was more than enough to meet each of those thresholds,” Gale said in a press release.
Chris Peterson, a spokesman for the pro-capital-punishment group, said in a press release that the campaign to retain the death penalty has begun. “Our message is simple: the death penalty is an appropriate punishment for the most heinous of murders, it protects public safety officers from criminals who otherwise have nothing to lose by murdering a corrections officer, and is a worthwhile deterrent if it saves even a single life,” Peterson said.
Dan Parsons, a spokesman for the anti-death-penalty coalition Nebraskans for Public Safety also issued a statement. “Nebraska voters will have the same opportunity the Legislature did to have a thoughtful discussion on whether to bring back a failed system that hasn’t been used in nearly two decades, is not a deterrent, and is a waste of taxpayer dollars,” Parsons said.
As a result of Friday’s announcement, the death penalty remains on the books, according to Nebraska Attorney General Doug Peterson, who also issued a press release. But the state still lacks the necessary drugs to carry out a lethal injection execution. Even if the state could obtain the drugs, legal scholars have expressed doubt that the Nebraska Supreme Court would approve a death warrant pending the Nov. 8, 2016, vote....
Ricketts issued a statement Friday after the verification: “Nebraskans continue to tell me that the death penalty is an important public safety tool. Today’s announcement takes us one step closer to giving the voters a say in retaining the death penalty.”
One thing that could prevent a vote on the issue would be a court order, and death penalty opponents have filed two lawsuits in an attempt to do that. One of the lawsuits claims that Ricketts should have been listed as an official sponsor of the petition drive because he was a major financier of the effort, contributing $200,000.... The second lawsuit maintains that the ballot language approved by the Nebraska Attorney General’s office was misleading and slanted.