Wednesday, November 15, 2017

Ohio unable to complete execution for elderly murderer once called death penalty “poster child”

As detailed in this AP report, headlined "Ohio calls off execution after failing to find inmate's vein" the state of Ohio had the wrong kind of eventful lethal injection experience this morning.  Here are the details:

It was only the third time in U.S. history that an execution has been called off after the process had begun.

The execution team first worked on both of Alva Campbell's arms for about 30 minutes Wednesday while he was on a gurney in the state's death chamber and then tried to find a vein in his right leg below the knee.  Members of the execution team used a device with a red flashing light that appeared to be a way of locating veins while also periodically comforting Campbell, patting him on the arm and shoulder.

About 80 minutes after the execution was scheduled to begin, the 69-year-old Campbell shook hands with two guards after it appeared the insertion was successful. About two minutes later, media witnesses were told to leave without being told what was happening.

Gary Mohr, head of the Ohio Department of Rehabilitation and Correction, said the team humanely handled the attempt, but the condition of Campbell's veins had changed since checks in Tuesday.  He said he called off the execution after talking with the medical team. "It was my decision that it was not likely that we're going to access veins," Mohr said.

Campbell, who was scheduled to die for killing a teenager during a carjacking two decades ago, shook hands with execution team members and wiped away tears after being informed the execution was being called off, said his attorney, David Stebbins.  "This is a day I'll never forget," Campbell said, according to Stebbins. 

Stebbins said he doesn't know what will happen next, but he added that Campbell's health problems and poor veins are a continuing problem.  Campbell, who was scheduled to die for killing a teenager during a carjacking two decades ago, will be sent back to death row and there will be some consideration for a future execution date, Mohr said....

Campbell's attorneys had warned the inmate's death could become a spectacle because of his breathing problems and because an exam failed to find veins suitable for IV insertion.  They argued he was too ill to execute, and also should be spared because of the effects of a brutal childhood in which he had been beaten, sexually abused and tortured....

Franklin County prosecutor Ron O'Brien called Campbell "the poster child for the death penalty." Prosecutors also said Campbell's health claims were ironic given he faked paralysis to escape court custody the day of the fatal carjacking.  On April 2, 1997, Campbell was in a wheelchair when he overpowered a Franklin County sheriff's deputy on the way to a court hearing on several armed robbery charges, records show. Campbell took the deputy's gun, carjacked the 18-year-old Charles Dials and drove around with him for several hours before shooting him twice in the head as Dials crouched in the footwell of his own truck, according to court records....

Earlier this month, Campbell lost a bid to be executed by firing squad after a federal judge questioned whether lawmakers would enact the bill needed to allow the method.

Perhaps unsurprisingly, the ACLU of Ohio already has issued this press release headed "Ohio Must Enact Moratorium on Executions."  It will be interesting to see if the rhetoric at the start of the press release becomes used by abolitionists throughout not just Ohio but the country:

After nearly 30 minutes of torture as medical personnel attempted to find a useable vein for the lethal injection of Alva Campbell, Jr the Ohio Department of Rehabilitation and Corrections called off his execution. This comes after weeks of advocacy from Campbell’s counsel explaining that he was too ill and death by lethal injection would be tortuous. The following statement can be attributed to ACLU of Ohio Senior Policy Director Mike Brickner:

"This marks the fifth botched execution for Ohio in recent years, and the second time the state could not complete an execution.  This is not justice, and this is not humane.  Campbell was poked and prodded for nearly two hours as prison officials and medical personnel attempted to find a useable vein.  This type of state-sponsored torture is not acceptable and the state of Ohio must place a moratorium on executions immediately.  Today the state made a spectacle of a man’s life, and the cruel and unusual practice of lethal injection must end."

Recent prior related post:

November 15, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

"Should life in jail be worse than life outside?"

The question in the title of this post is the headline of this new commentary authored by Chris Barker in The Week. Here are excerpts:

The crucial concept governing carceral practices is something called "less eligibility." The idea dates back to the English Poor Law Amendment Act of 1834, which codified English practices of dealing with the indigent. In 1832, the economist Nassau William Senior described how the "first and most essential of all conditions" in administering relief to the poor (often by moving them into a workhouse) is that the indigent's "situation on the whole shall not be made really or apparently so eligible as the situation of the independent laborer of the lowest class."  That is, the conditions in the workhouse should be awful: worse even than the poorest of the poor.

But even before Senior's famous line, a different carceral ideal was afoot: equality. In 1791, writing specifically about criminal offenders, the English utilitarian philosopher Jeremy Bentham argued that "the ordinary condition of a convict doomed to a punishment that few or none but the individuals of the poorest class are apt to incur, ought not to be made more eligible than that of the poorest class of subjects in a state of innocence and liberty."  As the historian Janet Semple observed in Bentham's Prison (1993), his rule of severity is not "less eligibility" but a more commonsense equality principle — offenders should have access to no more resources than they had while free. "Bentham," Semple wrote, "did not envisage grinding his convicts down to below the level of the poorest of the poor."

Other countries do not run their jails and prisons according to a principle of less eligibility. German prisons operate under an "approximation" principle, wherein offenders' rights to privacy, dignity and property are protected.  Norwegian prisons use a similar "normality principle," which holds that daily prison life should be, as far as possible, no different from ordinary life.  Fellow Englishman and Bentham disciple James Mill embraced the normality principle in 1825 by arguing that inmates in pre-trial incarceration should be allowed to lead the same life that they enjoyed prior to arrest, including access to employment and freedom to make small purchases with their own money.  Today, U.S. jails and prisons have rejected these examples in thrall to "less eligibility," and not just for the poorest of the poor....

If, as I think, the aim of punishment is rehabilitation, it is hard to justify less rather than equal eligibility.  But not all agree that rehabilitation is the primary aim of punishment. Deterrence theorists think that controlling crime is the most important aim of punishment. Retributivists hold that punishment should repay the harm done to another in a like manner: an eye for an eye, a tooth for a tooth....

Too often, the U.S. conversation about criminal justice is about principles and theories of punishment: rehabilitation, retribution, deterrence. What I am arguing here is that these theories amount to little if we ignore less eligibility, or how we punish.  Visiting a jail without an outdoor yard, where offenders have no physical contact with friends and family during their incarceration, or a prison where life unfolds within coils of obtrusive razor wire, is not a normal life, and doesn't prepare you to return to normal life.  As opinion in the U.S. starts to move away from some punitive strategies such as solitary confinement, we should reconsider which of our other carceral practices meet or violate the crucial secondary principles (leniency, proportionality, egalitarianism) of a just criminal justice system....

It is a tragedy if the attempt to have a just society with a suitable criminal justice system has been transformed into criminogenic warehousing, based on surveillance and discipline, which achieves few or none of the goals of punishment.  It is foolishness to countenance such a system merely because it has not yet touched you.  The road to the present state of affairs leads through less eligibility, which, on the surface, is a principle that makes sense: treat offenders to a life that is worse than life on the outside.  After all, why should offenders have air conditioning if the farmer "living in innocence and liberty" does not?  But the answer is that it is too easy to forget the other constraints on the dignity, privacy, and autonomy of those incarcerated in jails and prisons.

Our present system is costly and ineffective; it creates aberrant economies and empowers prison gangs that in turn influence street gangs.  Prisons reproduce the cultural inadequacy of life on the inside on our streets and in popular culture, and when offenders are released into communities, their lack of rehabilitation justifies further segregation and other collateral consequences, such as employment and housing discrimination.

November 15, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, November 14, 2017

Notable protests and legal appeals as rapper Meek Mill's harsh sentence for probation violation shines light on back-end of justice system

ImagesKMOOADW6Because I do not know Pennsylvania's procedures, I have been a bit unsure how best to cover controversy over the 2-4 year prison sentence given to rapper Meek Mill for violating his probation from a 2008 gun and drug case.  This new CNN article, headlined "Outrage mounts over Meek Mill's prison sentence," provides some useful background on the case while reporting on the protest that took place at Philadelphia's Criminal Justice Center on Monday and highlighting that the "case has sparked outrage not just from the hip-hop community but from activists for criminal justice reform around the nation." 

Now this lengthy new Philadelphia Inquirer article, headlined "Meek Mill appeals sentence, asks city judge Brinkley to step down," provides a useful accounting of legal issues and related stories swirling around this case. Here are excerpts:

Lawyers for imprisoned Philadelphia-born rapper Meek Mill have launched what one lawyer called a “flurry of legal filings” to try to get the 30-year-old hip-hop star released from his 2- to 4-year prison term for violating the terms of his 10-year-old probation.

The first filing Tuesday — a day after hundreds of supporters met outside the city Criminal Justice Center demanding Mill’s release — asked Philadelphia Common Pleas Court Judge Genece E. Brinkley to disqualify herself from further involvement his case and allow a new judge to reconsider Mill’s prison sentence. The 14-page motion, buttressed by 143 pages of court transcripts, maintains that Brinkley, 61, a judge since 1993, had “assumed a non-judicial, essentially prosecutorial role in the revocation process,” and ignored the recommendations of the probation officer and prosecutor, neither of whom sought imprisonment.

The motion contends that Brinkley has gone beyond “the proper bounds of the judicial role, even as supervisor of a probationary sentence. Judge Brinkley has repeatedly offered inappropriate personal and professional advice to the defendant, who had become a successful professional entertainer during the pendency of this case. On some occasions, Judge Brinkley has done so off the record, or on the record while attempting inappropriately to keep that record secret from the defendant and his counsel.”

“Last week’s hearing was a farce,” said defense attorney Brian J. McMonagle. “It was a miscarriage of justice that lacked even the semblance of fairness. Today, we have asked this Judge to step aside so that a fair minded jurist can right this terrible wrong.”

McMonagle said he would file a motion seeking bail for Mill, who was taken into custody following the Nov. 6 hearing before Brinkley for violating his probation from a 2008 drug and gun case. McMonagle said Brinkley has 30 days to respond to the motions filed Tuesday. If she does not respond, Mill’s lawyers can take the case to Superior Court. For Mill, the problem with a Superior Court appeal is that, unless he is allowed bail pending appeal, he could serve his minimum sentence before a decision.

Nor does the Superior Court have a reputation for disturbing lower court sentences in such cases. An article in Sunday’s Inquirer reviewed seven Superior Court appeals of probation violation sentences imposed by Brinkley over the last four years. All were affirmed.

Mill, born Robert Williams, is now in the state prison at Camp Hill near Harrisburg undergoing evaluation before his permanent prison assignment. “He’s holding up OK,” said McMonagle, adding that Mill is in “protective custody” – in a single cell for 23 hours a day with one hour out for exercise.

A motion to reconsider the sentence is the first step in any criminal appeal to the state Superior Court, the intermediate appeals court between the trial courts and the state Supreme Court. Unless she modifies or vacates Mill’s sentence, Brinkley will be required to write an opinion for the appeals court explaining her reasons for sending him to prison.

At the Nov. 6 hearing during which Brinkley sentenced Mill, the veteran judge recounted almost 10 years of court proceedings in which he had violated his probation, and she had sentenced him to short periods in jail and then had extended his probation.

Mill’s most recent “technical violations” were testing positive for the prescription narcotic Percocet earlier this year and two misdemeanor arrests, for an altercation at the St. Louis airport and a traffic violation in Manhattan involving a motorbike.

Brinkley also reminded Mill of the night she actually tried to verify that he was feeding the homeless, part of the community service she ordered. She went to a Center City soup kitchen run by the Broad Street Ministry – and found him instead sorting clothes. “It was only when you realized that I came there to check on you that you decided to serve meals,” Brinkley told the rapper.

Mill’s lawyers contend the judge’s surreptitious visit was also questionable: “Judge Brinkley thereby made herself a fact witness on the question of whether Mr. Williams was in compliance on that occasion, as well as to any statements he may have made. Judge Brinkley then relied on her own version of this incident … among the reasons for imposing a state prison sentence.”

Mill’s lawyers contend that Brinkley also demonstrated a personal bias involving Mill in a private in-chambers meeting during a Feb. 5, 2016, probation-violation hearing. At that hearing, Mill’s then-attorney Frank DeSimone told Brinkley that Mill wanted to discuss his experiences performing community service but “would feel more comfortable relaying some of his thoughts and experiences” to the judge in private....

Joe Tacopina, a lawyer for Mill based in New York City – who was not in the private meeting – has said Brinkley asked Mill last year to record a version of a Boyz II Men ballad, “On Bended Knee,” and to mention the judge in it. Tacopina said Mill laughed off the request and told Brinkley: “I can’t do that. It’s not my music. I don’t sing that stuff. And I don’t do, like, you know, shout-outs to people in my songs.” Brinkley replied, “’OK, suit yourself,’” according to Tacopina.

Tacopina also alleged that Brinkley asked Mill to drop his current management, Jay-Z’s Roc Nation, and to return to Philadelphia-based Charles “Charlie Mack” Alston, who worked with Mill early in his career....

In a related development Tuesday, authorities dismissed a New York Post internet report that the FBI was investigating Brinkley’s role in recommending Mill return to Mack’s management. An FBI spokeswoman in Philadelphia said that, per Justice Department policies, her office could not confirm nor deny the existence of any investigation. However, a federal law enforcement official in the city said that he was not aware of any active probe into the matter.

November 14, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

U.S. Commission on Civil Rights issues statement in support of sentencing provisions of Sentencing Reform and Corrections Act of 2017

As reported in this news release, yesterday "the U.S. Commission on Civil Rights issued a statement in support of certain provisions in the Senate’s bipartisan Sentencing Reform and Corrections Act of 2017, which proposes to reduce mandatory minimum sentences for particular nonviolent offenses and to return discretion to judges in more cases." This three-page statement is available at this link, and here are excerpts (with footnotes omitted):

The U.S. Commission on Civil Rights, by majority vote, supports certain sentencing reduction provisions in the bipartisan Sentencing Reform and Corrections Act of 2017, recently introduced in the Senate.  The bill proposes to reduce mandatory minimum sentences for particular nonviolent offenses and to return discretion to judges on sentencing in more cases.  It moves sentencing levels down in many cases so that low-level crimes are adequately but not excessively punished.  It also makes retroactive sentencing reductions in crimes involving crack cocaine, which, prior to the enactment of the Fair Sentencing Act of 2010, were punished with extreme sentences compared with crimes involving powder cocaine.  The fair administration of justice requires criminal penalties to be proportional to the offense committed and for similar crimes to be subject to similar punishments. In addition, fair administration depends on public faith in the American justice system; this bipartisan bill takes important steps to restore the basis for that faith by addressing longstanding inequity.

The Sentencing Reform and Corrections Act contains necessary and important steps towards more equitable punishments in the federal system, advancing the fair administration of justice by better fitting punishment to crime.  If enacted, it would help reduce the outsize U.S. prison population without jeopardizing public safety.  It stands in contrast to the change in charging policy announced by the United States Department of Justice in May.  The Department of Justice’s policy regarding mandatory minimum sentences will result in lengthier, harsher prison sentences and additional taxpayer costs for both actual imprisonment and post-incarceration integration unless it is changed or checked by Congress through sentencing reform....

The application of harsher penalties and mandatory minimum sentences historically falls hardest on communities of color.  Although facially race-neutral, these policies have been applied in a racially disparate manner, raising concerns regarding legitimacy and fairness of our nation’s criminal justice system.  Use of mandatory minimum sentencing contributed to high incarceration rates for African-American and Latino men, despite comparable rates of drug use across communities of all races.  Devastating, community-wide impacts of these policies include one in nine children of color having a parent in prison.

National and international bodies have noted racially disparate treatment throughout the American criminal justice system, including in the application of mandatory minimum sentences.  Perhaps the most notable and egregious example of the racial disparities can be found in the different mandatory minimum sentences provided for offenses involving crack versus powder cocaine.  A bipartisan consensus in Congress passed the Fair Sentencing Act in 2010, reducing disparities between mandatory minimum sentences for different drugs, in part “because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differences.” These changes should be made retroactive as the Sentencing Reform and Corrections Act of 2017 proposes in order to reduce excessive punishments for those already sentenced.

November 14, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

US Sentencing Commission releases new report on "Demographic Differences in Sentencing"

Via this webpage, the US Sentencing Commission provides a helpful summary and some key findings from its latest data publication titled ""Demographic Difference in Sentencing." The full 49-page report is available at this link, and here is the USSC's summary and accounting of key findings:

For this report [link in] prior two reports, The Commission used multivariate regression analyses to explore the relationships between demographic factors, such as race and gender, and sentencing outcomes.  These analyses were aimed at determining whether there were demographic differences in sentencing outcomes that were statistically significant, and whether those findings changed during the periods studied.

The Commission once again updated its analysis by examining cases in which the offender was sentenced during the period following the 2012 report.  This new time period, from October 1, 2011, to September 30, 2016, is referred to as the “Post-Report period” in this publication.  Also, the Commission has collected data about an additional variable — violence in an offender’s criminal history — that the Commission had previously noted was missing from its analysis but that might help explain some of the differences in sentencing noted in its work. This report presents the results observed from adding that new data to the Commission’s analysis....

Key Findings

Consistent with its previous reports, the Commission found that sentence length continues to be associated with some demographic factors. In particular, after controlling for a wide variety of sentencing factors, the Commission found:

1. Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged compared to the Post-Gall period.

2. Non-government sponsored departures and variances appear to contribute significantly to the difference in sentence length between Black male and White male offenders. Black male offenders were 21.2 percent less likely than White male offenders to receive a non-government sponsored downward departure or variance during the Post-Report period. Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a non-government sponsored departure or variance. In contrast, there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, and there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.

3. Violence in an offender’s criminal history does not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences on average 20.4 percent longer than similarly situated White male offenders, accounting for violence in an offender’s past in fiscal year 2016, the only year for which such data is available. This figure is almost the same as the 20.7 percent difference without accounting for past violence. Thus, violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.

4. Female offenders of all races received shorter sentences than White male offenders during the Post-Report period, as they had for the prior four periods. The differences in sentence length decreased slightly during the five-year period after the 2012 Booker Report for most offenders. The differences in sentence length fluctuated across all time periods studied for White females, Black females, Hispanic females, and Other Race female offenders.

These are really interesting (though not especially surprising) findings, and it will be interesting to see how the US Department of Justice and members of Congress pushing for federal sentencing reform might respond. I will need to take a little time to dig into some of the particular because providing my own assessment and spin, but I have always feared (and wrote an article a long time ago) that differences in the resources and abilities of defense counsel may create or enhance disparities in federal sentencing outcomes in ways that can not be easily measured or remedied.

November 14, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Monday, November 13, 2017

Voting intrigue in SCOTUS capital case dissent on latest order list

The Supreme Court wrapped up its formal pre-Thanksgiving public activities toady with the release of this order list.  The list will surely generate news based on the granting of cert in three First Amendment cases, one dealing with abortion issues, one dealing with polling places, and one with some criminal procedure elements.  But sentencing fans, particularly those eager to predict the future of the Supreme Court's capital jurisprudence, will want to give some attention to this lengthy cert denial dissent by Justice Sotomayor in Reeves v. Alabama.  This dissent was joined (only) by Justices Ginsburg and Kagan, and it starts this way:

Petitioner Matthew Reeves was convicted by an Alabama jury of capital murder and sentenced to death. He sought postconviction relief in state court based on, as relevant here, several claims of ineffective assistance of trial and appellate counsel.  Among those claims, Reeves argued that his trial counsel was ineffective for failing to hire an expert to evaluate him for intellectual disability, despite having sought and obtained funding and an appointment order from the state trial court to hire a specific neuropsychologist.  His postconviction counsel subsequently hired that same neuropsychologist, who concluded that Reeves was, in fact, intellectually disabled.  Reeves contended that this and other evidence could have been used during the penalty phase of his trial to establish mitigation.

The Alabama Circuit Court held an evidentiary hearing on Reeves’ postconviction petition, at which Reeves presented substantial evidence regarding his intellectual disability and his counsel’s performance.  He did not, however, call his trial or appellate counsel to testify.  The court denied the petition, and the Alabama Court of Criminal Appeals affirmed. In doing so, the Court of Criminal Appeals explained that a petitioner seeking postconviction relief on the basis of ineffective assistance of counsel must question his counsel about his reasoning and actions.  Without considering the extensive record evidence before it regarding Reeves’ counsel’s performance or giving any explanation as to why that evidence did not prove that his counsel’s actions were unreasonable, the Court of Criminal Appeals held that Reeves’ failure to call his attorneys to testify was fatal to his claims of ineffective assistance of counsel.  The Alabama Supreme Court denied review.

There can be no dispute that the imposition of a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffectiveassistance-of-counsel claim contravenes our decisions requiring an objective inquiry into the adequacy and reasonableness of counsel’s performance based on the full record before the court. Even Alabama does not defend such a rule.  Instead, the dispute here is whether the Alabama Court of Criminal Appeals in fact imposed such a rule in this case.  I believe it plainly did so.  For that reason, I respectfully dissent from the denial of certiorari.

After this start, Justice Sotomayor goes on for 10+ pages to provide great detail on the proceedings below and the errors she sees therein.  Her dissent concludes with a call for a summary reversal and remand "so that the Court of Criminal Appeals could explain why, given the full factual record, Reeves’ counsel’s choices constituted reasonable performance."  This concluding recommendation, along with length of the dissent, leads me to wonder if it was drafted with the hope that there would be five or more votes to send this case back to the Alabama courts given that, as Justice Sotomayor explains, Alabama itself "does not attempt to defend the Court of Criminal Appeals’ rule on its merits."

Of course, the issuance of this dissent shows that Justice Sotomayor could not get five or more votes to send this case back to the Alabama courts.  But, as SCOTUS fans know, only four votes are needed to grant certiorari, and Justice Breyer would seem to be an obvious candidate to provide a fourth vote for taking this capital case up on its merits.  I am inclined to guess that Justice Breyer decided to issue a so-called "defensive denial" vote: as explained here, Justice Breyer's vote in Reeves may involve the "strategy by which a justice will vote to deny review because the justice fears that, if review is granted, the Court will reach the wrong result and make bad law."

Because I am not a SCOTUS procedure guru, I am not going to spend too much time speculating about what the voting dynamics might reveal in Reeves.  But in the wake of his Glossip opinion and other subsequent comments and votes, some have been coming to believe that Justice Breyer would now vote in favor of a capital defendant in any and every close or tough case.  His vote to deny cert in Reeves suggests that, in deciding how to resolve capital cert petitions, he is still concerned with matters other than just how he thinks he should resolve each and every particular capital case that comes before him.

November 13, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Might last week's voting results in Virginia help lead to voting rights for everyone, including those with criminal records?

The question in the title of this post is prompted by this extended HuffPost piece headlined "Democrats Just Won A Massive Victory For Voting Rights In Virginia." Here are excerpts:

On a night of Democratic victories, one of the most significant wins came in Virginia, where the party held onto the governor’s mansion. Democratic governor-elect Ralph Northam’s victory will enable him to expand voting rights to disenfranchised people and exert some control over the redistricting process.

The election had high stakes for voting rights. Virginia strips people of their right to vote if they are convicted of a felony, and those rights can only be restored by the governor. Gov. Terry McAuliffe (D) moved aggressively to restore rights to more than 168,000 former felons ― a policy Northam has said he is proud of and will continue.

In 2016, the nonprofit Sentencing Project estimated there were 508,680 people in Virginia who remained disenfranchised because of a felony conviction, meaning hundreds of thousands more could benefit from Northam’s policies. More than 1 in 5 people disenfranchised in the commonwealth because of a felony conviction were African-American, according to the organization....

Expanded voting rights restoration will benefit people like LaVaughn Williams and Brianna Ross, who are in their 50s and lost their right to vote decades ago, when they were convicted of felonies. Both women had their rights restored in the last year and voted for the first time in their lives on Tuesday, something they said made them feel like equal citizens. “If you had asked me maybe a year and a half, almost two years ago, I would’ve said ‘No,’ I didn’t never think I would vote,” Williams said on Tuesday after voting.

“Government and governors have come to the conclusion that even though we have not done a lot of good things in our lifetime, as far as I’m concerned, they have decided that they will put those past mistakes in the past and give us that second chance,” she said. “That’s all any person that’s an ex-felon can hope for, that second chance. Me getting my rights back is that second chance.”...

Voting rights became an important issue in the race after Northam’s Republican opponent, Ed Gillespie, used highly misleading television advertisements to criticize the policy of restoring voting rights to former felons. Gillespie also personally oversaw the Republican effort to win state legislators and draw electoral boundaries to the party’s advantage in 2010. The high stakes attracted attention from voting groups like Let America Vote and Holder’s National Democratic Redistricting Committee.

“Ralph Northam’s win tonight is a victory for every Virginian, a victory for the Democratic movement resisting President Trump’s disastrous administration and a victory for the protection of voting rights everywhere,” Jason Kander, the former Missouri secretary of state and president of Let America Vote, said in a statement. “Ralph made his defense of voting rights a campaign priority,” Kander said. “Virginians took notice, which is why they came from all over the commonwealth to join Let America Vote and many other groups to get out the vote.”

Though I am not aware of any exit polling that suggests that Northam swayed a large number of voters with his advocacy for voting rights, I suspect that Gilllespie's attack on restoring voting rights to former felons would have been given too much credit if he had secured a come-from-behind win. More generally, in a nation that rightly takes pride in democratic governance, I am ever hopeful that advocacy for expanding the franchise can and will generally prevail over advocacy for restricting the franchise.

Because I have long thought that the biggest problem with democracy in the US results from too few rather than too many people voting, I continue to adhere to the positions developed here in support of allowing even incarcerated felons the right to political participation through the voting booth. In this context, it is worth recalling that we fought a war for independence based in part on the slogan "no taxation without representation." In that tradition, I think until we hear someone making the case for felons to be exempt from taxation, we ought in turn be ever-suspicious of the case for preventing felons from voting.

November 13, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (5)

Sunday, November 12, 2017

Former state Arizona AG, only now, says his state's death penalty is "unconstitutional" and "bad policy"

Terry Goddard, who served as the Arizona's attorney general from 2003 to 2011, apparently just now got around to figuring out that how his state administers the death penalty makes it unconstitutional and bad policy.  He explains his new thinking in this commentary headlined "Arizona's 40-year experiment with the death penalty has failed."  Here are excerpts (with some emphasis added for my follow-up commentary):

As the attorney general, I was responsible for overseeing dozens of appeals from sentences of death.  Six people were executed during my tenure.  It was critical for me that we imposed the ultimate sanction only on those most deserving.

Tragically, our state has failed in this undertaking in fundamental ways.  The breadth of our statute, capturing nearly every first-degree murder, makes it unconstitutional.  But more than that, Arizona’s use of the death penalty is bad policy.

Arizona does not have a good track record for getting it right.  At least nine times our death penalty has swept up the innocent in its net.  Nationwide, 160 people have been exonerated from death row.  Getting it wrong once is one time too many.  Death, in its finality, means correcting a wrongful sentence is not an option.  Sentencing the innocent to die undermines the public’s confidence in the entire criminal justice system, and is reason alone to abandon the death penalty.

Moreover, Arizona’s death penalty scheme has unsettling racial disparities in its application.  People in Arizona who are accused of murdering white victims are more likely to receive the death penalty.  Hispanic men who are accused of murdering whites are more than four times as likely to be sentenced to death as white defendants accused of murdering a Hispanic victim.  Any other state policy with that sort of disparity would be quickly repudiated.  The Legislature should end this horrible death penalty malfunction.

The spiraling costs of seeking and imposing a death sentence are further reason to abandon the policy.  These costs have caused the location of the crime to take precedence over its heinousness.  Several counties simply cannot afford to pursue the death penalty, creating imbalances having nothing to do with the crime....

The costs associated with defending Arizona’s statute (never mind the cases themselves) have been substantial. Dozens of convictions have been set aside because Arizona, unlike almost every other state, did not provide for jury sentencing in capital cases.  Arizona was one of two states to extend the death penalty to felony murders, leading to a rebuke by the Supreme Court and further reversals.  The Arizona Supreme Court narrowly interpreted our state’s prohibition on executing the intellectually disabled until they were recently forced to reconsider.  And case after case has been reversed because of flaws in the instructions given in capital sentencing proceedings....

We’ve been here before. In 1972, the court struck down every state’s death-penalty statute because they operated to execute a “capriciously selected random handful,” rather than the worst offenders.  Similar to other states’ efforts, then-state Sen. Sandra Day O’Connor and Rudy Gerber (who later became an Arizona judge) rewrote Arizona’s statute to comply with the court’s narrowing requirements by obligating the prosecutor to prove one or more aggravating factors before the death penalty could be imposed.

More than four decades have passed and we are back to square one.  Despite the efforts of O’Connor and Gerber, Arizona has failed to narrow the application of the death penalty and has been unable or unwilling to provide the guidance necessary to ensure that the death penalty is only imposed on the worst offenders.

Though I am not an expert on the statutory and practical ins-and-outs of the death penalty in Arizona, I am pretty sure that the vast majority of the problems cited here by former state AG Goddard were plenty evident circa 2003 when he started serving his eight years at the top lawyer and law enforcement official in the state.  For example, this DPIC list of death row exonerations indicates that eight of the nine exonerations in Arizona occurred by 2003.  If "getting it wrong once" is, as Goddard says now, "one time too many" and "reason alone to abandon the death penalty," why didn't Goddard while serving as AG become a vocal opponent of capital punishment?

Similarly, I believe the breadth of the Arizona statute allowing capital punishment for nearly all first-degree murders is not a new reality.  If that reality makes the statute unconstitutional in the view of Goddard, why did he work vigorously to uphold death sentences under that statute for eight years?  In his role as AG, Goddard swore an oath to uphold the US Constitution, and he should have felt duty-bound not to seek to preserve capital convictions secured via an unconstitutional statute.  But, it would seem, Goddard was very slow to achieve this critical constitutional wisdom.

Likewise, I would guess that "unsettling racial disparities" in the  application of Arizona's death penalty did not only recently become evident.  (Linked here, for example, is a 1997 article with data on this kind of disparity and discrimination in Arizona.)   Did Goddard even care about the data on disparities when serving in the AG role for eight years?   If he really believes "any other state policy with that sort of disparity would be quickly repudiated," I would like to ask him why he did not quickly repudiate the death penalty over the eighth years he was in an ideal official position to do something about this state policy. 

I make these points not only to suggest that there is a notable johnny-come-lately quality to Goddard's capital criticisms, but also to wonder if Goddard might someday write another commentary that explains why a person in the role of Attorney General cannot or will not face up to problems in a state's criminal laws until long after completing service.  I have always wondered whether it is just political and institutional pressures that prompt government officials to defend questionable criminal laws and practices, or whether other sets of personal and professional factors are the heart of this story.  Some first-person accounting of just how and why Goddard has now come to a different view of these issues a number of years after his extended tenure as state AG could actually make his commentary much more valuable than the standard abolitionist review of reasons to oppose the death penalty.

November 12, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Retiring House Judiciary Chair Goodlatte mentions "enacting criminal justice reform" as an out-the-door priority

As explained here via an official missive, Congressman Bob Goodlatte released a letter this week to announce that he will not seek re-election in 2018. These parts of the letter, with my emphasis added, account for why this news strikes me as blogworthy:

For the past 25 years, it has been my honor to represent the Sixth Congressional District of Virginia.  I cannot begin to express how blessed I am to have had the opportunity to serve and take part in the great experiment of self-government envisioned by our Founders.  It has been a labor of love to work countless hours and travel endless miles on the roads of our District for a quarter of a century....

After much contemplation and prayer, we decided it was the right time for me to step aside and let someone else serve the Sixth District.  I will not seek re-election.  With my time as Chairman of the Judiciary Committee ending in December 2018, this is a natural stepping-off point and an opportunity to begin a new chapter of my career and spend more time with my family, particularly my granddaughters.

While I’m not running for re-election, my work in the 115th Congress is far from done.  There is much that I hope we can accomplish in the next year, including: bolstering enforcement of our immigration laws and reforming the legal immigration system, simplifying the tax code in order to stimulate job growth and benefit families in the Sixth District, enacting criminal justice reform, repealing Obamacare, advancing protections of the freedoms and liberties enshrined in our Constitution, and, of course, continuing first-class constituent service for the citizens of the Sixth District....

As House Judiciary Chair, Goodlatte plays a very important role in determining if and how proposals for federal statutory sentencing reform can move forward. I have generally heard that he is a tepid supporter of reform: I sense he would not champion any reforms, but also would not seek to kill any bill that has broad support on this side of the aisle.  Now, with only a dozen or so months in this role and in Congress, it seems possible that Goodlatte might be a little more motivate to make the enactment of some significant federal criminal justice reform part of his legacy.  Or maybe not ... as I always struggle to understand the mysterious ways and people that lurk inside the Beltway

November 12, 2017 in Who Sentences? | Permalink | Comments (1)

Interesting case comments on notable SCOTUS OT '16 cases in new Harvard Law Review

The first issue of each new volume of the Harvard Law Review is traditionally its November offering filled with articles, commentary and case comments looking back at the past US Supreme Court term. This year's version of that traditional HLR issue is now available at this link, and a good number of the cases that get the full case-comment treatment are criminal law cases. Based on a too-quick review, I think sentencing fans might find these case comments particularly interesting:

BONUS TRIVIA: As I was doing this post, it dawned on me that it was exactly a quarter century ago that I had the honor of having my SCOTUS case comment published in Volume 106 of the Harvard Law Review.  Perhaps foreshadowing my professional future, I wrote on a case (Hudson v. McMillian, 503 U.S. 1 (1992)), that would certainly have been fodder for this blog had it existed during the 1991 Supreme Court Term.

November 12, 2017 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20)

Friday, November 10, 2017

"Is It Time for Criminologists to Step Outside the Ivory Tower?"

The question in the title of this post is the headline of this commentary by LawProf Erik Luna from over at the Crime Report that provides some background and perspective on the extraordinary recent academic work, discussed here, that Erik helped create and curate. Here are excerpts:

[C]riminal justice reform presents an issue — perhaps the only issue today — on which the left and the right can unite. And, as it turns out, the academic world may be able to help, as demonstrated by a newly released report from a distinguished group of criminal justice scholars....

Recent years have witnessed otherwise strange bedfellows bunking together to improve our criminal justice system. On what other topic do groups like the ACLU and the NAACP join hands with organizations such as Americans for Tax Reform and the Charles Koch Institute?

In our nation’s capital, Republicans and Democrats came together to correct grotesque disparities between crack and powder cocaine sentencing, for instance, and pending bills would address such issues as America’s broken bail process, ruthless mandatory penalties, and recidivism by former inmates. In truth, the most remarkable bipartisan action is occurring outside of the Beltway, where states such as Texas (yes, Texas) are leading the way in top-to-bottom criminal justice reforms.

Although advocates may have different motivations — political, social, economic, religious — they agree that something needs to be done about criminal justice in America....

Despite [broad] reasons to support criminal justice reform, the movement still faces a daunting task. In particular, a gap in knowledge exists among government actors and the general public. Many officials and most ordinary people tend to be unaware of the character and quantity of crime, the scope of criminal law, the rules of criminal procedure, the reality of pretrial and trial proceedings, the nature of sentencing schemes and their severity, and the lasting consequences of conviction and incarceration.

This lack of appreciation is hardly surprising given the sheer breadth and complexity of American criminal justice. What is needed is a means to help people grasp the system’s workings and its many, interrelated problems, so Americans and their representatives can have a full and thoughtful discussion of possible solutions.

This is where academics have a role to play. After all, their work is fundamentally all about reform. Criminal justice scholars spend most of their time studying, critically analyzing, and writing at length about crime, punishment, and processes, with an eye toward providing greater understanding of the criminal justice system and proposing changes to that system.

Traditionally, however, academic authors have written to themselves—that is, to other criminal justice scholars — not to the public or even to policymakers, professionals, or policy analysts interested in criminal justice.  As a result, academic scholarship is inaccessible in the sense that it is dense, filled with jargon, and, as a general rule, painful to read and unfriendly to normal human beings.  Oftentimes scholarly works are physically inaccessible as well, published by academic presses and journals and buried in libraries or hidden behind paywalls.

In an attempt to bridge the gap between scholarship on the books and legal reform on the ground, a loose-knit group of well over 100 scholars has issued a four-volume report titled Reforming Criminal Justice, which takes on some of the most pressing issues in criminal justice today.

Broken down into individual chapters, each authored by a top scholar in the relevant field, the report covers dozens of topics within the areas of criminalization, policing, pretrial and trial processes, sentencing, incarceration, and release. The goal of each chapter is to increase both professional and public understanding of the subject matter, to facilitate an appreciation of the relevant scholarly literature and the need for reform, and to offer potential solutions.

Today, the United States is unique among Western nations in terms of the scale and punitiveness of its criminal justice system. Academics can’t directly change this: We’re teachers and scholars, not elected officials or other policymakers. But, as the report hopes to show, the academic world can enlighten the public and their representatives and help guide reform efforts through the insights of those whose lifework is the study of criminal justice.

Prior related post:

November 10, 2017 in Recommended reading, Who Sentences? | Permalink | Comments (3)

Thursday, November 09, 2017

"The Unsung Role That Ordinary Citizens Played in the Great Crime Decline"

The title of this post is the headline of this notable new New York Times piece, which gets started and ends  this way (with inks from the original):

Most theories for the great crime decline that swept across nearly every major American city over the last 25 years have focused on the would-be criminals.

Their lives changed in many ways starting in the 1990s: Strict new policing tactics kept closer watch on them. Mass incarceration locked them up in growing numbers. The crack epidemic that ensnared many began to recede. Even the more unorthodox theories — around the rise of abortion, the reduction in lead or the spread of A.D.H.D. medication — have argued that larger shifts in society altered the behavior (and existence) of potential criminals.

But none of these explanations have paid much attention to the communities where violence plummeted the most. New research suggests that people there were working hard, with little credit, to address the problem themselves.

Local nonprofit groups that responded to the violence by cleaning streets, building playgrounds, mentoring children and employing young men had a real effect on the crime rate. That’s what Patrick Sharkey, a sociologist at New York University, argues in a new study and a forthcoming book. Mr. Sharkey doesn’t contend that community groups alone drove the national decline in crime, but rather that their impact is a major missing piece.  “This was a part that has been completely overlooked and ignored in national debates over the crime drop,” he said. “But I think it’s fundamental to what happened.”...

As Mr. Sharkey publishes his findings, crime rates are now diverging after a generation in which violence fell reliably year after year nearly everywhere. It’s not clear yet whether the great crime decline he writes about will continue. But he argues that it’s time for a new model of violence prevention, one that relies more heavily on the kind of work that these community groups have been quietly doing than on the aggressive police tactics and tough sentencing that the Trump administration now advocates.

“The model that we’ve relied on to control violence for a long time has broken down,” Mr. Sharkey said. If communities want police to step back, he is pointing to some of the people who can step in. “This gives us a model. It gives us another set of actors who can play a larger role.”

November 9, 2017 in National and State Crime Data, Who Sentences? | Permalink | Comments (1)

Wednesday, November 08, 2017

House members reintroduce the Safe, Accountable, Fair, and Effective (SAFE) Justice Act

As reported in this press release, yesterday "Representatives Bobby Scott (D-VA) and Jason Lewis (R-MN) introduced bipartisan legislation aimed at safely reining in the size and associated costs of the federal criminal code and prison system."  Here is more from the press release about the reintroduction of one of the most progressive federal statutory sentencing reform proposals to make the rounds recently:

H.R. 4261, the Safe, Accountable, Fair, and Effective (SAFE) Justice Act takes a broad-based approach to improving the federal sentencing and corrections system, spanning from sentencing reform to release policies.  The legislation, which is inspired by the successes of states across the country, will break the cycle of recidivism, concentrate prison space on violent and career criminals, increase the use of evidence-based alternatives to incarceration, curtail over-criminalization, reduce crime, and save money....

Similar to the successful reform packages enacted in many states, the SAFE Justice Act aligns the federal prison system with the science about what works to reform criminal behavior.  It reflects the growing consensus among researchers that, for many offenders, adding more months and years onto long prison terms is a high-cost, low-return approach to public safety.  It also looks to the growing number of practices in correctional supervision that are shown to reduce recidivism. 

The SAFE Justice Act will:

  • Reduce recidivism by –
    • incentivizing completion of evidence-based prison programming and activities through expanded earned time credits;
    • implementing swift, certain, and proportionate sanctions for violations of supervision; and
    • offering credits for compliance with the conditions of supervision.
  • Concentrate prison space on violent and career criminals by  –
    • focusing mandatory minimum sentences on leaders and supervisors of drug trafficking organizations;
    • safely expanding the drug trafficking safety valve (an exception to mandatory minimums) for qualified offenders; and
    • creating release valves for lower-risk geriatric and terminally-ill offenders.
  • Increase use of evidence-based sentencing alternatives by  –
    • encouraging greater use of probation and problem-solving courts for appropriate offenders; and
    • creating a performance-incentive funding program to better align the interests of the Bureau of Prisons and U.S. Probation Offices. 
  • Curtail overcriminalization by –
    • requiring regulatory criminal offenses to be compiled and published for the public;
    • ensuring fiscal impact statements are attached to all future sentencing and corrections proposals; and
    • charging the Department of Justice, the Bureau of Prisons, and the Administrative Office of the Courts with collecting key outcome performance measures.
  • Reduce crime by –
    • investing in evidence-based crime prevention initiatives; and
    • increasing funding for community based policing and public safety initiatives.

Original cosponsors of the SAFE Justice Act: Reps. John Conyers, Jr. (D-MI), Mia Love (R-UT), Sheila Jackson Lee (D-TX), Carlos Curbelo (R-FL), Eleanor Holmes Norton (D-DC), Brian Fitzpatrick (R-PA).

Additional information about the SAFE Justice Act:

Prior related post from June 2015:

November 8, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Another notable set of Election Day results for the criminal justice reform movement

One could readily spin the 2016 election as a good one for the (non-capital) sentencing reform movement: marijuana reform and sentencing reform initiatives won in a wide array of blue and red states, and the presidential candidate more supportive of federal reforms won the nationwide popular vote by a fairly sizable margin.  But, on the other side of the spin cycle, the death penalty won big ballot initiative victories in a three states (including California), and Donald Trump won all the right votes in all the right places to become Prez and bring his tough-and-tougher attitudes about crime and punishment into power in the federal executive branch.

I remind everyone of these mixed-message stories from the major election of 2016 because it seems there are not mixed messages or competing spins likely to emerge from the off-off-year election results in 2017.  In two gubernatorial races in New Jersey and Virginia, the candidate more supportive of some form of criminal justice reform prevailed.  As noted in this prior post, Prez Trump used his Twitter thumbs to make crime a central issue in the Virginia race, but his preferred candidate seems to have badly under-performed his poll numbers.  And in a widely-discussed local DA race, long-time defense attorney Larry Krasner won big in Philadelphia and now seems poised to engineer a whole new approach to the prosecutorial function in one of the largest cities in the US.

For an array of reasons, these results do not ensure that an array of sentencing reform movements at the federal, state and local levels are sure to be ever more successful and productive in the months and years ahead.  But they serve as a clear signal at this moment in time that advocating criminal justice reform in the right ways and in the right places can be part of winning political strategy (at least on the east coast).   The importance of that signal cannot be overstated.

November 8, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

"An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

Logo (1)The title of this post is the title of this big new report from the Drug Policy Alliance. Here is part of its extended executive summary:

The country is in the middle of a tragic increase in drug overdose deaths. Countless lives have been lost – each one leaving an irreparable rift in the hearts and lives of their families and friends. These tragedies are best honored by implementing evidence-based solutions that help individuals, families, and communities heal and that prevent additional avoidable deaths. This report examines one strategy that the evidence suggests is intensifying, rather than helping, the problem and calls for leaders to turn towards proven measures to address the increasing rates of overdose deaths.

In the 1980s, at the height of the draconian war on drugs, the federal government and a host of states passed “drug-induced homicide” laws intended to punish people who sold drugs that led to accidental overdose deaths with sentences equivalent to those for manslaughter and murder. For the first 15-20 years, these laws were rarely used by police or prosecutors, but steadily increasing rates of drug overdose deaths across the country have led the law enforcement community to revive them. Currently, 20 states — Delaware, Colorado, Florida, Illinois, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming —  have drug-induced homicide laws on the books.

A number of other states, while without specific drug-induced homicide statutes, still charge the offense of drug delivery resulting in death under various felony-murder, depraved heart, or involuntary or voluntary manslaughter laws. These laws and prosecutions have proliferated despite the absence of any evidence of their effectiveness in reducing drug use or sales or preventing overdose deaths. In fact, as this report illustrates, these efforts exacerbate the very problem they seek to remediate by discouraging people who use drugs from seeking help and assistance.

Although data are unavailable on the number of people being prosecuted under these laws, media mentions of drug-induced homicide prosecutions have increased substantially over the last six years. In 2011, there were 363 news articles about individuals being charged with or prosecuted for drug-induced homicide, increasing over 300% to 1,178 in 2016.

Based on press mentions, use of drug-induced homicide laws varies widely from state to state. Since 2011, midwestern states Wisconsin, Ohio, Illinois, and Minnesota have been the most aggressive in prosecuting drug-induced homicides, with northeastern states Pennsylvania, New Jersey, and New York and southern states Louisiana, North Carolina, and Tennessee rapidly expanding their use of these laws. Further signaling a return to failed drug war tactics, in 2017 alone, elected officials in at least 13 states – Connecticut, Idaho, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New York, Ohio, South Carolina, Tennessee, Virginia, and West Virginia – introduced bills to create new drug-induced homicide offenses or strengthen existing drug-induced homicide laws.

Prosecutors and legislators who champion renewed drug-induced homicide enforcement couch the use of this punitive measure, either naively or disingenuously, as necessary to curb increasing rates of drug overdose deaths. But there is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases. As just one example, despite ten full-time police officers investigating 53 potential drug-induced homicide cases in Hamilton County, Ohio in 2015, the county still recorded 100 more opioid-related overdose deaths in 2016 than in 2015.

This should be unsurprising. Though the stated rationale of prosecutors and legislators throughout the country is that harsh penalties like those associated with drug-induced homicide laws will deter drug selling, and, as a result, will reduce drug use and related harms like overdose, we have heard this story before. Drug war proponents have been repeating the deterrence mantra for over 40 years, and yet drugs are cheaper, stronger, and more widely available than at any other time in US history. Supply follows demand, so the supply chain for illegal substances is not eliminated because a single seller is incarcerated, whether for drug-induced homicide or otherwise. Rather, the only effect of imprisoning a drug seller is to open the market for another one. Research consistently shows that neither increased arrests nor increased severity of criminal punishment for drug law violations results in less use (demand) or sales (supply). In other words, punitive sentences for drug offenses have no deterrent effect.

Unfortunately, the only behavior that is deterred by drug-induced homicide prosecutions is the seeking of life-saving medical assistance. Increasing, and wholly preventable, overdose fatalities are an expected by-product of drug-induced homicide law enforcement. The most common reason people cite for not calling 911 in the event of an overdose is fear of police involvement. Recognizing this barrier, 40 states and the District of Columbia have passed “911 Good Samaritan” laws, which provide, in varying degrees, limited criminal immunity for drug-related offenses for those who seek medical assistance for an overdose victim. This public health approach to problematic drug use, however, is rendered useless by enforcement of drug-induced homicide laws.

November 8, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, November 07, 2017

Interesting account of "Five myths about white collar crime"

I just saw this notable recent commentary authored by Nicolas Bourtin, a former federal prosecutor, published in the Washington Post outlook section. Here is how the lengthy commentary starts along with the myth headings and the section most focused on sentencing:

Bankers and government officials continue to feature prominently on our newspapers’ front pages — and not in a good way. Since the financial crisis of 2008, a string of political and corporate scandals has played out in our political and financial centers, and recent investigations of people close to President Trump, including Paul Manafort and Rick Gates, have produced indictments for money laundering and tax fraud. Corporate malfeasance, corruption and tax fraud are shrouded in misconceptions. Here are five enduring myths about white-collar crime.

MYTH NO. 1: Prosecutors fear prosecuting powerful defendants....

MYTH NO. 2 White-collar defendants never serve real time.

In the wake of the financial crisis, publications such as Fortune and the Nation have sought to answer why its architects don’t do hard time for their crimes. “Why does the Justice Department appear to have given up on putting white-collar criminals in jail?” Fortune asked. When academics began studying the subject in the 1970s, they noted that federal judges were typically lenient toward white-collar offenders.

Those days are over. Judicial discretion in sentencing was greatly limited by the adoption of the Federal Sentencing Guidelines in 1987, whose penalties for fraud were further enhanced after the Enron scandal broke in 2001. And although the Supreme Court held in 2005 that the guidelines were advisory and no longer mandatory for judges, sentences for white-collar defendants have been getting harsher, not more lenient.

According to the U.S. Sentencing Commission’s 2013 Report on Sentencing Trends, nearly 70 percent of all offenders sentenced under the guidelines for fraud received some prison time for their crimes in 2012. In 1985, that rate was about 40 percent. For crimes that caused a loss of at least $2.5 million, the same report revealed that offenders were sentenced under the guidelines to an average of nearly five to 17 years in prison in 2012. In 1985, by comparison, the average sentence for white-collar crimes was just 29 months.

MYTH NO. 3 Trump’s administration won’t enforce anti-corruption laws....

MYTH NO. 4 No one went to prison as a result of the financial crisis....

MYTH NO. 5 Financial crime is the same as robbery or theft....

November 7, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

"Criminal Justice and the Mattering of Lives"

The title of this post is the title of this new article/book review authored by Deborah Tuerkheimer and available via SSRN. Here is the abstract:

James Forman's "Locking Up Our Own: Crime and Punishment in Black America" is an extraordinary book, and it arrives at a pivotal juncture for criminal justice reform.  This Essay builds on Forman's rendition of "a central paradox of the African American experience: the simultaneous over- and under-policing of crime."  

It describes three areas in which legally marginalized groups currently struggle for state recognition of their injuries: gun violence, sexual violence, and hate crimes. It then offers a conceptual framework for future reform efforts that, by centering structural inequality, aspires to concurrently rectify the over- and under-enforcement of crime highlighted by Forman's careful work.

I refer to this inversion of the traditional criminal justice paradigm as an anti-subordination approach to criminal justice — one that makes salient the interplay between crime and entrenched social inequalities while pressing for a state response that alleviates, rather than exacerbates, the disempowerment of vulnerable populations.

November 7, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Prez Trump promises "crime will be gone" if Virginians elect the right governor

The politics of crime and punishment are always notable, and the President of the United States today through Twitter added to this always dynamic tale.  Specifically, in this 2017 Election Day tweet, Prez Trump makes a bold claim (with my emphasis added) about the impact of the GOP candidate for Gov in Virginia: "EdWGillespie will totally turn around the high crime and poor economic performance of VA. MS-13 and crime will be gone."  Wow, that is quite a promise, and one I do not recall Prez Trump even making for his own tenure in office.

This new Washington Post article, headlined "Trump plays ‘crime’ card for Virginia GOP as bitter race for governor highlights political rifts," provides more of the context and contents of the President's tweets in this arena. Here is how the article starts:

President Trump weighed in on Virginia’s hotly contested race for governor Tuesday, underscoring the importance of an election seen as a test of his popularity and its possible impact on state-level politics around the country.

Trump urged voters to support Republican Ed Gillespie over Democrat Ralph Northam, the state’s sitting lieutenant governor. Gillespie, a longtime establishment Republican, has embraced the culturally divisive aspects of Trump’s agenda, while Northam has presented himself as a bulwark against Trump.

“Ralph Northam will allow crime to be rampant in Virginia,” Trump wrote on Twitter, echoing Gillespie ads tying Northam to violence committed by the gang MS-13. If the Republican wins, Trump said, “MS-13 and crime will be gone.”

Polls show Gillespie and Northam are running neck and neck. They are competing to replace Gov. Terry McAuliffe (D), who is prevented by state law from seeking a second consecutive term.

November 7, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Monday, November 06, 2017

NAAUSA and six other law enforcement groups write to Sentencing Reform and Corrections Act, per the attached letter.

Last week I blogged here about a letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws.  Today I received a copy of a quite different letter also sent to the leaders of the Senate Judiciary Committee this time coming from the National Association of Assistant U.S. Attorneys and six other law enforcement groups.  Here is how the letter, which can be downloaded below, gets started:

We write to express the opposition of the undersigned organizations to the recently-introduced Sentencing Reform and Corrections Act of 2017 (S. 1917).  We represent federal, state and local law enforcement officers, agents and prosecutors responsible for the investigation and prosecution of drug traffickers and other violent offenders involved in the distribution and sale of dangerous drugs.

The public safety of our communities across the nation would be negatively impacted by this legislation.  The legislation undermines mandatory minimum penalties for drug trafficking and weakens the tools that law enforcement authorities need to enforce the law, prosecute criminals and dismantle domestic and international drug trafficking organizations.  The legislation authorizes the early release of thousands of previously convicted armed career criminals, serial violent criminals, and repeat drug traffickers. And it will make it more difficult for law enforcement to pursue the most culpable drug dealers and secure their cooperation to pursue others in drug distribution rings and networks, domestic and international.

The bill would undermine law enforcement investigatory efforts by giving serious criminals the best of both worlds: less sentencing exposure and the choice to not cooperate with law enforcement in further investigatory efforts.

This is not the time for the Congress to consider changes like these that will impair the ability of law enforcement to take serious drug traffickers off the street.  Violent crime across America continues to grow, and a raging heroin and opioid abuse epidemic shows no sign of ebbing. For the second year in a row, violent crime increased across the United States, according to FBI annual crime data.  Homicides increased by 8.6%, with cities like Baltimore, Chicago, and Kansas City, Missouri witnessing massive increases in their homicide rates.  Meanwhile, a national epidemic of overdose deaths, caused largely by heroin and opioid drug abuse, ravages the country.  No state is immune from the deadly consequences.  Over 47,000 Americans died from drug overdoses in 2014, an all-time high. In 2015 that number rose to 50,000; last year it continued to skyrocket to 64,000 people.  Daily drug overdose deaths, including those from heroin use, exceed those caused by auto accidents.

Download LE Groups Ltr re S 1917 Nov02-2017

November 6, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Two notable summary reversals from SCOTUS after circuits failed, yet again, to properly follow AEDPA

The US Supreme Court this morning released this order list which does not grant cert in any new cases but does concludes with two notable summary reversals both of which result from circuit courts failing to follow properly the commands of the Antiterrorism and Effective Death Penalty Act (AEDPA).

The longer per curiam ruling (without dissent) comes in Kernan v. Cuero, No. 16-1468 (S. Ct. Nov 6, 2017) (available here), which gets started this way:

The Antiterrorism and Effective Death Penalty Act of1996 provides that a federal court may grant habeas relief to a state prisoner based on a claim adjudicated by a state court on the merits if the resulting decision is “contrary to,or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d)(1). In this case, a California court permitted the State to amend a criminal complaint to which the respondent, MichaelCuero, had pleaded guilty. That guilty plea would have led to a maximum sentence of 14 years and 4 months. The court acknowledged that permitting the amendment would lead to a higher sentence, and it consequently permitted Cuero to withdraw his guilty plea. Cuero then pleaded guilty to the amended complaint and was sentenced to a term with a minimum of 25 years.

A panel of the Court of Appeals for the Ninth Circuit subsequently held that the California court had made a mistake of federal law. In its view, the law entitled Cuero to specific performance of the lower 14-year, 4-month sentence that he would have received had the complaint not been amended.

The question here is whether the state-court decision “involved an unreasonable application o[f] clearly established Federal law, as determined by the Supreme Court of the United States.” Ibid. Did our prior decisions (1) clearly require the state court to impose the lower sentence that the parties originally expected; or (2) instead permit the State’s sentence-raising amendment where the defendant was allowed to withdraw his guilty plea? Because no decision from this Court clearly establishes that a state court must choose the first alternative, we reverse the Ninth Circuit’s decision.

The other per curiam ruling comes in Dunn v. Madison, No. 17-193 (S. Ct. Nov 6, 2017) (available here), includes these passages:

Neither Panetti nor Ford “clearly established” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case. The state court did not unreasonably apply Panetti and Ford when it determined that Madison is competent to be executed because — notwithstanding his memory loss — he recognizes that he will be put to death as punishment for the murder he was found to have committed.

Nor was the state court’s decision founded on an unreasonable assessment of the evidence before it. Testimony from each of the psychologists who examined Madison supported the court’s finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime.

In short, the state court’s determinations of law and fact were not “so lacking in justification” as to give rise to error“beyond any possibility for fairminded disagreement.” Richter, supra, at 103.  Under that deferential standard, Madison’s claim to federal habeas relief must fail. We express no view on the merits of the underlying question outside of the AEDPA context.

Notably, Justice Ginsburg penned this brief concurrence in Dunn that was joined by Justices Breyer and Sotomayor:

The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court. Appropriately presented, the issue would warrant full airing. But in this case, the restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996, I agree, preclude consideration of the question. With that understanding, I join the Court’s per curiam disposition of this case.

And Justice Breyer also added a concurrence in Dunn to note that the "case illustrates one of the basic problems with the administration of the death penalty itself. That problem concerns the unconscionably long periods of time that prisoners often spend on death row awaiting execution." Notably, no other Justice joined this concurrence by Justice Breyer.

November 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Sunday, November 05, 2017

Spotlighting challenges facing federal prosecutors in capital pursuit of Sayfullo Saipov

Andrew McCarthy has this notable recent National Review commentary under this amusing headline/subheadline: "Your Sentencing Advice Isn’t Helpful; Bergdahl is to loyalty as Trump is to tact."  Though the headline suggests the piece is mostly about taking Prez Trump to task, it actually focuses effectively on just how the battle facing federal prosecutors in the Saipov case was made a bit harder by the Prez.  Here is part of McCarthy's analysis:

The Justice Department has an exacting process before the death penalty may be charged. The process is meant to impress on the judiciary — much of which is philosophically predisposed against capital punishment — that the attorney general seeks the death sentence only after extremely careful deliberation, which includes hearing a presentation from the defense. Now, since the attorney general answers to the president, Saipov’s lawyers will argue that the DOJ process is, shall we say, a joke and a laughingstock, the president having already ordered his subordinate to seek the defendant’s execution.

In the end, I’m pretty sure defense motions to throw out any capital charges will be denied.  But the burden on the prosecutors to prevail on the matter of a death sentence will be tougher. Make no mistake: They already have an uphill battle on their hands. 

Saipov richly deserves the death penalty. (Like you, dear readers, I’m not the president, so I get to say that without screwing up the case.)  But the problem is, while this jihadist atrocity should result in a straight-up, slam-dunk state multiple-murder prosecution, the State of New York has done away with capital punishment.  If he is going to get a death sentence, it will have to be a federal case. Thus, I’m proud to say, the case has been taken over by my former stomping grounds, the United States Attorney’s office for the Southern District of New York. There is still a problem, however: Finding a federal murder charge that fits the facts well is not simple. 

The SDNY prosecutors are a clever lot.  In a two-count complaint, they theorize (in Count Two) that Saipov caused eight deaths in the course of damaging an automobile in interstate commerce. But the criminal statute invoked (section 33(a) of the U.S. penal code) is really addressed at incidentally endangering human beings while doing violence to a car, not incidentally endangering the car while doing violence to human beings.  The latter is what Saipov did — an attack with a truck, not on a truck.

Plainly aware that this allegation may not fly, the prosecutors also charge material support to terrorism (under section 2339B).  They plausibly allege (in Count One) that Saipov’s savage attack was done on behalf of the Islamic State terror network (ISIS).  Yet defense lawyers will surely counter that Saipov has no known connections to ISIS, and that his attack was not coordinated with ISIS.  The government has a good argument.  Even assuming Saipov had no ISIS ties, he fully intended his act to contribute to ISIS’s sharia-supremacist cause. Plus, ISIS has responded by embracing Saipov, albeit after the fact. Still, the ISIS connection will be hotly contested. And, more to the point, neither the material-support charge nor the damaging-an-automobile charge is a death-penalty offense.

Of course, the criminal complaint is only the first step in the case, really just a means of keeping Saipov detained without bail, not the formal indictment on which he will ultimately be tried. When that indictment is filed, I am hopeful it will include charges of murder in aid of racketeering. This offense (section 1959) is a capital crime, prohibiting murder (as well as other violent crimes) committed “for the purpose of gaining entrance to” a racketeering enterprise. ISIS clearly qualifies as such an enterprise under federal law (under section 1961, it is a group of individuals associated in fact — even though not a legal entity — and it engages in acts of murder, among other depravities). Further, even if Saipov was not a member of ISIS before his killing spree, he was patently seeking entry into the network . . . and he succeeded in getting it. ISIS branded him “one of the caliphate soldiers” in its claim of responsibility.

All that said, this is not an easy prosecution — certainly not as easy as the blatant brutality of Saipov’s attack would make it appear.  I am quite confident that whichever judge is assigned to the case will deny the inevitable motions to dismiss death counts.  When we step back, a foolish outburst, even from the White House, is trivial juxtaposed to Saipov’s barbarity.  But understand that the judge will still be incensed over the need to address presidential ranting (particularly if it continues).  The prosecutors’ margin for error, already thin in a death case, will narrow all the more.  Not being a lawyer, Trump may not grasp how many ways a pissed-off judge — especially one who is philosophically opposed to capital punishment — can undermine a prosecutor’s case without formally tossing it out.

Prior related posts:

November 5, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Ohio legislator claims condemned inmates "don’t like" her bill to abolish death penalty

It was the headline of this local article, "Republicans join effort to abolish death penalty in Ohio," that first caught my attention. But a quote and claim within prompted the title of this post, and here are excerpts:

With another execution looming next week in Ohio, a Democratic lawmaker is pushing a bill that would eliminate the death penalty in the Buckeye State. Although similar tries in three previous legislative sessions have gone nowhere, this time some Republicans are on board.

House Bill 389, sponsored by Rep. Nickie Antonio, D-Lakewood, would replace capital punishment with a life sentence without parole. “The consideration of death by the state would be off the table. ... This doesn’t mean they aren’t prosecuted to the fullest extent by the law,” Antonio said....

Antonio’s bill has bipartisan support. Reps. Niraj Antani, R-Miamisburg, and Craig Riedel, R-Defiance, are co-sponsors. “It’s a life issue,” Antani said. He says the ability to put someone to death is “way too big of a power” for the government.

As a Roman Catholic, Riedel opposes capital punishment. “It’s my faith that has led me to believe to not support the death penalty,” Riedel said. “Mankind is not in charge of natural death.”

This is not the first legislative effort that has tried to put an end to capital punishment in Ohio. In fact, this is the fourth time Antonio has introduced the same bill to the General Assembly. “We are not saying do not punish the criminal,” Antonio said. “Punish the criminal through a sentence of life without parole.”...

“I’ve visited death row inmates and they don’t like my bill,” Antonio said. She said they view the death penalty as a way to put them out of their misery....

Almost 140 prisoners were on death row in Ohio as of Oct. 2, according to the Ohio Department of Rehabilitation and Correction....

Despite the shift in public attitudes, the Ohio Prosecuting Attorneys Association continues to support capital punishment.... The association has maintained opposition to the repeal of the death penalty, said Wood County Prosecutor Paul Dobson, president of the group. “We believe it’s a deterrent factor of the most serious crimes,” Dobson said.

Notably, this DPIC webpage accounting of "volunteers" lists 7 Ohio executed killers "who continued to waive at least part of their ordinary appeals at the time of their execution."  This accounting suggests that more than 10% of Ohio's 55 executed killers would not have been supportive of the abolition of the death penalty, but it suggests that more than 85% of those executed would have liked to have seen the death penalty abolished.   Because Ohio has 143 current killers on death row, assuming the same based breakdown suggests that maybe as many as 18 condemned Ohio killers do not like the idea of capital abolition.  But I suspect well over 100 of the Ohio condemned would vote in favor of Rep. Nickie Antonio's bill.

November 5, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Seeking experiences and thoughts on Marsy's Law, especially from prosecutors, as Ohio prepares to vote

Facebook-seoMy local paper, the Columbus Dispatch, has this new article reporting on the on-going debate over "Marsy's Law," which is due to be considered by voter initiative here in Ohio this Tuesday. The piece is headlined "Victims rights concerns at root of Issue 1," and here are excerpts:

People on both sides of state Issue 1 say they are deeply concerned with victims rights, but some of those who are opposed question its workability and even its necessity.

Also known as Marsy’s Law, Issue 1 would amend the Ohio Constitution to enshrine rights for victims of alleged crimes that supporters say aren’t guaranteed now.  It’s on the ballot Tuesday. The amendment would require that victims be notified of important hearings in criminal cases of such things as prison releases.  It also would give alleged victims standing to intervene in criminal cases to try to protect what they see as their interests.  And it would seek to protect their privacy.

Marsy’s Law is named for Marsy Nicholas, who in 1983 was murdered by her ex-boyfriend in California. Unbeknownst to her parents, Nicholas’s killer was released on bail and her parents ran into him in a store.

The effort to change state constitutions in Ohio and elsewhere is bankrolled by Marsy’s brother, California tech billionaire Henry Nicholas, who was born in a Cincinnati suburb and moved west as a young boy.  His team insists that the constitutional amendment is meant merely to level the playing field for crime victims.  “Criminals get way more constitutional protections than crime victims do,” said Gail Gitcho, national spokeswoman for the Marsy’s Law effort.

But while victims’ rights are an easy sell politically, criminal cases don’t set the rights of the accused against those of an alleged victim, said Ohio Public Defender Tim Young. “The victim doesn’t need rights to keep the government from improperly sending them to prison,” he said.

Gitcho agreed that victims’ interests are different in criminal cases, and she said nothing about whether Issue 1 would limit constitutional protections for criminal defendants. But, she said, it’s high time that victims’ interests are protected in the Ohio Constitution.

Issue 1 has gathered the support of some high-level prosecutors, such as Ohio Attorney General Mike DeWine and Franklin County Prosecutor Ron O’Brien.  But the Ohio Prosecuting Attorneys Association, the Ohio State Bar Association and the Ohio Association of Criminal Defense Attorneys have come out against the ballot initiative.

One concern is that the state Constitution isn’t the appropriate place for the protections. If problems arise with the workability of Issue 1, it would be exceedingly difficult to fix them by amending the Constitution, said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association. Issue 1 supporters say, however, that it’s necessary to put victim rights in the Constitution to ensure they’re protected because a 1994 state statute intended to do so hasn’t been enough.

“In the last several decades since, it has become clear that the rights of Ohio victims are not enforceable, there have been numerous efforts to strengthen those rights in the legislature,” Issue 1 spokesman Aaron Marshall said in an email. “All of those efforts have failed due to pushback from the same groups who are now claiming that they would support victims’ rights legislative improvements.”...

Asked for examples of victims’ rights violations in Ohio that would be helped by Issue 1, Marshall cited the case of a northeast Ohio rape in which the trial was postponed 20 times over more than five years. He also pointed to a Summit County woman’s long fight to keep private her psychological records and social media passwords after her boyfriend was killed and she was beaten, shot and stabbed.

Despite the appeal of Issue 1, Public Defender Young predicts a raft of legal headaches if it passes. “This isn’t about victims’ rights,” he said. “It’s about the Bill of Rights.”

As this article highlights, the vote over Marsy's Law has split the state's prosecutors, with Ohio's Attorney General and some county prosecutors in support, but with the Ohio Prosecuting Attorneys Association (OPAA) against.  (The Ohio AG is already a declared candidate for Ohio governor in 2018, which may have played some role in his thinking on the issue.)  This recent commentary from the executive director of the OPAA explains some of the group's concerns:

Marsy’s Law could negatively impact Ohio communities.  The amendment grants “the victim’s . . . lawful representative” the right to assert a victim’s rights. Courts could determine that this grants the victim the right to an attorney. The victim would then have the right to a court-appointed attorney if indigent.

Taxpayers could be paying for the prosecutor; for counsel for an indigent defendant; and for counsel for an indigent victim. This duplication of responsibilities and costs is bad enough in one case. Multiplied by thousands of cases each year, it could delay justice at best and deny it at worst.

Ohio’s prosecutors applaud advocates for victims.  They deserve praise for raising awareness of the cause and plight of victims of crime, and we stand ready to work with all to improve victim’s rights in a meaningful way.  Enshrining Marsy’s Law in Ohio’s Constitution in response to a problem case in California, however, is not beneficial. Ohioans should be concerned about the consequences for our justice system.

I tend to be a strong supporter of victim's rights in the criminal justice system, while also being a strong supporter of defendant rights.  Because I do not think there has to be or should be a zero-sum quality to defendant/victim rights, I am always inclined to support a proposal that seeks to expanded identified and enforceable rights in our justice system.  For this reason, I am inclined to support Marsy's Laws, and that inclination is enhanced by my extraordinary respect for lawyers and advocates I know who work so hard on behalf of rights of crime victims in a range of settings.

That all said, because Ohio has a number of victims' rights already in place in our Constitution and statutes, I understand the concern that Marsy's Law could end up being a cure worse than the current disease.  For that reason, as the title of this post suggests, I would be especially interested in hearing from prosecutors or others with direct experience with the impact and import of Marsy's Law or with particular concerns as to how the law might play out in Ohio.  I believe this law has been on the books for nearly a decade in California and in a handful of others states, and the debate here in Ohio has seemingly not included any examples of the law causing any big trouble in other jurisdictions.  A little research turned up this recent AP article from North Dakota reporting that law enforcement has described the impact of Marsy's Law there as  "very, very minimal."

So, informed (or uninformed) readers, any sharp thoughts on how the citizens of Ohio should vote on Marsy's Law?

November 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, November 04, 2017

Some more diverse reading about the opioid crisis

As I have said in prior posts, I could readily fill this blog multiple times a day with tales of the opioid crisis given the size and reach of the problem and the attention it is getting from many quarters.  Catching my attention this week are these opioid stories and commentaries, some which respond to the recommendations that emerged from Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis (discussed here):

November 4, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

"Can Jared Kushner Save Criminal Justice Reform?"

The question in the title of this post is the headline of this recent Marshall Project article about a figure who has long been seen as an important figure in the fate of federal criminal justice reform in the Trump Era.  Here are some excerpts:

In July, [Pat] Nolan, now director of the American Conservative Union Foundation’s Center for Criminal Justice Reform and a leading figure in a conservative reform effort that goes under the rubric Right on Crime, picked up the newspaper and saw that Jared Kushner was well-placed to advance the cause. Nolan reconnected and began sending Kushner memos on how private businesses and church groups could be mobilized to become mentors for released prisoners. Kushner almost always responded within hours.

Nolan’s faith has been bolstered by a flurry of meetings, summits and dinners that Kushner has held in recent weeks with lawmakers and criminal justice reform advocates, leading the more optimistic activists to believe the tough-on-criminals posture of President Donald Trump and Attorney General Jeff Sessions may not mean a complete freeze on federal reforms.

Many wonder whether Kushner has the clout and skill to maneuver any reform to enactment. No new initiatives or official messages of support for reform legislation have come from a White House that has ratcheted up enforcement of drug and immigration offenses. But given a window into the 36-year-old’s dealing with bipartisan groups seeking reforms, Nolan thinks Kushner, driven by his own personal frustrations with the criminal justice system, stands a chance of success. “He cares passionately about this,” Nolan said....

In September, Nolan was among faith leaders invited by Kushner to discuss ideas for a national mentoring program to help released prisoners resettle in their communities -- a measure that would require minimal federal effort. Later that afternoon, Kushner convened a roundtable of politicians, criminal justice reform groups, religious leaders, employers and others in the Indian Treaty Room in the East Wing of the Eisenhower Executive Building. The conference was called the “Prisoner Reentry Summit” and participants had been sent questions in advance to prepare.

“Please let us know if there are ways in which the President can amplify already successful programs, Federal and private sector/nonprofit, or assist in making a program more effective,” the questionnaire said. “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”In a navy blue suit, Kushner sat in the middle of a long conference table flanked to his left and right by Nolan and Kentucky Gov. Matt Bevin. Others at the meeting included U.S. senators Sheldon Whitehouse of Rhode Island and John Cornyn of Texas, U.S. representatives Chris Collins of New York and Sheila Jackson Lee of Texas, Gov. Sam Brownback of Kansas, Secretary of Housing and Urban Development Ben Carson and Secretary of Labor Alexander Acosta.

Participants spoke for three to five minutes each on a range of challenges faced by released prisoners, including housing, education and employment while Kushner took notes, asked questions and identified next steps, Holden said. A Department of Justice official who attended signaled that the DOJ was interested in drug courts and programs that could help released prisoners transition back to communities, a surprise to those who feared that Attorney General Sessions’ agenda would only focus on enforcing laws and punishing criminals. “It wasn’t ‘lock em up and throw away the key,’” Holden said. (About a week after the summit, the Department of Justice announced that it was awarding more than $9.5 million to juvenile and family drug court programs across the country.)...

No new initiatives have been launched by the White House since the meeting but other positive signs for reform have followed. Early this month a bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley, Senate Democratic Whip Dick Durbin and several others reintroduced the Sentencing Reform and Corrections Act, a popular bipartisan bill that died last year when it was never put up for a vote. The bill would give judges more discretion at sentencing to skirt mandatory minimum sentence requirements for people with short criminal histories, and its revival was unexpected; Sessions had strongly opposed the bill last year when he was in the Senate.“Something happened,” said Inimai M. Chettiar, Justice Program director of the left-leaning Brennan Center for Justice. “We don’t know what happened. What I found interesting about the resurrection of this particular bill is that Sessions did a lot of work to kill this bill.”

Sources in the Senate say Kushner has pledged White House support for the bill. Does that mean he believes he has more sway with President Trump than Sessions does? Or has Sessions changed his mind or reached a compromise with Kushner and senators? Attempts to reach Kushner through the White House communications director were not successful. A DOJ spokesman declined an interview request for Sessions....

In talks with Nolan, Kushner has indicated that he believes Sessions is more of a proponent of second chance programs than many have been led to believe. Sessions’ Senate record includes sponsoring legislation that reduced the discrepancies for penalties for using crack versus cocaine and the Prison Rape Elimination Act. “He thinks that the press and the public have misinterpreted where Sessions is coming from,” Nolan said. “He thinks there is a lot more commitment from Sessions to working toward reforms. ”But even if Kushner can hurdle Sessions’ reservations, Whitehouse said, White House leadership will be needed to persuade House Speaker Paul Ryan to guide a bill through a House obstacle course, and convince Senate Majority Leader Mitch McConnell to give the bill floor time and line up votes. “There are ways to get there but it requires levers to be applied that the White House has and I do not,” Whitehouse said....

Of the conservatives who have Kushner’s ear, Whitehouse says, “To be blunt, I am skeptical of their motives.” But having participated in two meetings with Kushner on the subject, Whitehouse said he believes the president’s son-in-law is serious about improving the criminal justice system. “I’ve seen the way he talks about it,” Whitehouse said. “I haven’t the faintest idea of how he polls in the White House,” but “I know he’s sincere about this.”

November 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (4)

Friday, November 03, 2017

Prof Tribe makes standard policy arguments to advocate that Supreme Court "hold the death penalty unconstitutional nationwide"

Because Harvard Law Prof Laurence Tribe has long been among the nation's most highly regarded constitutional thinkers, I got excited when I saw he penned this new Washington Post opinion piece headlined "The Supreme Court should strike down the death penalty."  I was hoping that Prof Tribe might be presenting  some novel arguments for declaring capital punishment per se unconstitutional. But, as detailed below, his piece just makes familiar policy arguments against the punishment based on how it gets applied:

After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.”  It also remains prone to terrible errors and unacceptable arbitrariness.

Arizona’s death-penalty scheme is a prime example of how capital punishment in the United States unavoidably violates the Eighth Amendment’s requirement that the death penalty not be applied arbitrarily.  The Supreme Court will soon consider accepting a case challenging Arizona’s statute and the death penalty nationwide, in Hidalgo v. Arizona....

As a result of Arizona’s ever-expanding list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution.  This wholly fails to meet the constitutional duty to narrow the punishment to those murderers who are “most deserving” of the punishment.

It has also opened the door to disturbing racial trends.  Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty.  There are also geographic disparities: Some counties do not pursue the death penalty, while Maricopa County, where the defendant in the Hidalgo case was tried, imposed the death penalty at a rate 2.3 times higher than the rest of the state over a five-year period....

Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.

In doing so, the court would be recognizing our country’s movement away from capital punishment: Eleven states that have the death penalty on their books have not had an execution in the past 10 years — four states have suspended the death penalty, and 19 have abolished it entirely.  Each year, the death penalty continues to shrink as its use becomes not less but more arbitrary: Death sentences have declined by more than half in just the past five years.  Executions went from a modern-era high of 98 in 1999 to 20 in 2016. A handful of counties — just 2 percent — are driving the death penalty while the rest of the nation has moved on.

One reason jurors are increasingly uncomfortable in choosing death is the growing awareness that too many condemned people are, in fact, innocent.  In the modern era of the death penalty, 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted.  A painstaking study from the National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the United States are innocent.  When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system.

The court should acknowledge that capital punishment — in Arizona and everywhere else — violates human dignity and constitutes cruel and unusual punishment. At the very least, it should enforce the requirement that the death penalty be available only in the rarest of circumstances.

Though supporters of the death penalty can readily dicker with some particulars in Prof Tribe's complaints about arbitrariness, "racial trends," geographic disparities and wrongful convictions in the capital context, I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty.  Arbitrariness, "racial trends," geographic disparities and wrongful convictions plague just about every facet of our justice systems and implicate punishments in arenas ranging from life without parole to federal mandatory minimum drug sentences to plea practices to juvenile court adjudications.  If the policy concerns expressed by Prof Tribe here justifies the Supreme Court declaring one punishment per se unconstitutional, it arguably justifies declaring many other punishments per se unconstitutional.

Of course, the Supreme Court has long developed a unique jurisprudence for capital cases that dramatically shapes and limits its application, and many abolitionists like Prof Tribe would surely like to see the Court finally convert policy arguments against the death penalty into a categorical constitutional prohibition.  But, especially with so few members of the Court now showing any eagerness to take up Justice Breyer's suggestion in Glossip to reconsider the facial constitutionality of the death penalty, there seems little reason to expect that a majority of Justices will want to do what Prof Tribe is urging anytime soon.

November 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, November 02, 2017

With notable advocates, former Gov Blagojevich bringing notable sentencing issue to SCOTUS

As reported in this local press article, headlined "Imprisoned Blagojevich again asks U.S. Supreme Court to hear his case," a high-profile defendant is bringing an interesting sentencing issue to the Supreme Court. Here are the basics:

Ex-Gov. Rod Blagojevich has again appealed his case to the U.S. Supreme Court, his lawyer confirmed Thursday. The former governor’s bid to the high court is among the very few options the imprisoned Democrat has left.

Blagojevich has tried to take his case to the Supreme Court once before. It refused to hear from him early last year, and his new petition is also considered a long-shot. Blagojevich is not due out of prison until May 2024.

The new 133-page filing presents the Supreme Court with two questions: Whether prosecutors in a case like Blagojevich’s must prove a public official made an “explicit promise or undertaking” in exchange for a campaign contribution, and whether more consideration should have been given to sentences handed down in similar cases.

This big cert petition is available at this link, where one can see that Thomas Goldstein and Kevin Russell of SCOTUSblog fame are listed as counsel of record.  And here is how these two astute SCOTUS litigators frame the sentencing issue they are bringing to the Justices in this case:

May a district court decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the Seventh and Tenth Circuits hold, in conflict with the law of the majority of circuits?

Long-time readers know that I see a whole host of post-Booker 18 U.S.C. § 3553(a) sentencing issues as cert-worthy, but the Justices themselves have not taken up many such cases over the last decade. It is great to see experienced SCOTUS litigators making the case for cert on these kinds of grounds in a high-profile setting, though I think the "long-shot" adjective remains fitting.

November 2, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets?

The question in the title of this post is prompted by this new Guardian article, headlined "Trump's 'alarming' death penalty call threatens suspect's chance of fair trial, experts warn." And that article was prompted by this series of tweets by Prez Trump this morning:

Prez Trump tweet around midnight on 11/2: "NYC terrorist was happy as he asked to hang ISIS flag in his hospital room.  He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!"

Prez Trump tweets around 8am on 11/2:  "Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system... ...There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!"

I welcome all sorts of comments from all sorts of litigators about whether and how they think these tweets might impact the federal prosecution of Sayfullo Saipov for mowing down people in NYC.

Prior related posts:

November 2, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences? | Permalink | Comments (22)

Opioid Crisis Commission advocates expanded federal drug court programs and lots of other (mostly public health) stuff

Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis issued this big final report yesterday, and the heart of the report's themes and recommendations are usefully summarized in this extended letter to Prez Trump penned by Commission Chair Chris Christie.  This article in The Hill, headlined "Trump opioid commission backs more drug courts, media blitz," provides this even tighter summary, including the one recommendation that may be of focused interest and concern for sentencing fans:

President Trump’s opioid commission laid out 56 recommendations for how the nation should combat the epidemic, including drug courts and a national media campaign, days after the crisis was declared a national public health emergency.  Members voted to approve the report, which was due Nov. 1, at the end of a meeting on Wednesday.

The commission didn’t weigh in on the specific amount of money needed to combat the health crisis. President Trump's declaration of a public health emergency, which doesn't free up millions of dollars in extra cash, sparked calls for more funding by Democrats and advocacy groups.  But the report calls on Congress to determine the funding required....

Advocacy groups argue a robust infusion of federal dollars is needed to combat the epidemic of prescription painkiller and heroin overdose deaths plaguing the nation. Without more money, they say, the emergency declaration won’t make a significant dent in the crisis. The public health emergency fund doesn’t have much left — about $57,000. New Jersey Gov. Chris Christie (R), who helms the commission, predicted Trump will initially ask “for billions of dollars to deal with this.”...

Here are some of the commission’s recommendations:

— A coordinated system: The Office of National Drug Control Policy (ONDCP) should create a system to track all federally funded initiatives and invest only in effective programs. “We are operating blindly today; ONDCP must establish a system of tracking and accountability,” the report notes.

— A media campaign: The White House should fund and collaborate on a multiplatform media campaign, and the commission noted a similar one occurred during the AIDS public health crisis. It should address “the hazards of substance use, the danger of opioids, and stigma.”

– Opioid prescribing: The Department of Health and Human Services should develop a “national curriculum and standard of care” on prescribing prescription painkillers. It should supplement previous guidelines from the Centers for Disease Control and Prevention.

— Improve prescription drug monitoring programs. The Department of Justice should fund and create a hub to share data on prescribing and dispensing.

— Fentanyl: The commission wants to enhance sentencing for trafficking of this potent synthetic opioid.

November 2, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Congratulations to new addition to Third Circuit, Judge (and sentencing scholar) Stephanos Bibas

As first noted in this post five months ago, Prez Donald Trump nominated a prominent sentencing scholar, Professor Stephanos Bibas, for a judgeship on the US Court of Appeal Third Circuit. As I said back then, I have a particular affinity for Prof Bibas not only because of his long history as a sentencing scholar, but also because we worked together on a Supreme Court case Tapia in which he was an appointed amicus and because we have co-authored articles such as Making Sentencing Sensible and Engaging Capital Emotions.  (Also, Prof Bibas did a stint of guest-blogging in this space in conjunction with the release of his book, "The Machinery of Criminal Justice," which was published in 2012 by Oxford University Press; his posts are linked under the category tab, Guest blogging by Professor Stephanos Bibas.)

Given this background, nobody should be surprised that I am extremely excited by this news from DC that today the "Senate voted to confirm Stephanos Bibas to the 3rd Circuit Court of Appeals."  I am confident that Judge Bibas will be a spectacular jurist, and I am especially eager to see how he handles the many federal sentencing appeals that are a regular part of the docket of every US Court of Appeals.

November 2, 2017 in Who Sentences? | Permalink | Comments (4)

Wednesday, November 01, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

"Trump labels US justice system 'laughing stock' "

In this post last night, I flagged the prospect of yesterday's NYC terror attack becoming the first big federal capital prosecution of the Trump era.  But some sharp commenters surprised me by noting that it was not entirely clear that a federal criminal statute carrying the possibility of the death penalty was violated by Sayfullo Saipov.  Moreover, as reflected in this new CNN article which carries the headline that serves as the title of this post, it is not entirely clear that Prez Trump would be content with having Sayfullo Saipov subject to federal prosecution in the same way as Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof:

President Donald Trump called for "quick" and "strong" justice for terror suspects in the wake of the deadly New York City attack, saying that it is not surprising terror attacks happen because the way the United States punishes terrorists is "a laughing stock."

Tuesday's terror attack in New York was the city's deadliest since 9/11.  Sayfullo Habibullaevic Saipov drove a rented van down a bike path, law enforcement sources have said.  The attack killed six victims instantly, while two others died later.  New York politicians and officials quickly labeled the incident a terror attack.

Trump's comments, made during a White House Cabinet meeting Wednesday, malign the justice system for a lack of toughness.  Attorney General Jeff Sessions, the head of the so-called 'laughing stock' justice system, was in the room for this comment -- sitting across from Trump.

The President also said he would consider sending the attacker to the controversial prison at Guantanamo Bay. "We also have to come up with punishment that's far quicker and far greater than the punishment these animals are getting right now," Trump told reporters. "They'll go through court for years. And at the end, they'll be -- who knows what happens."

He added: "We need quick justice and we need strong justice -- much quicker and much stronger than we have right now.  Because what we have right now is a joke and it's a laughing stock.  And no wonder so much of this stuff takes place."

White House press secretary Sarah Sanders, defending the President, claimed during her Wednesday briefing with reporters that Trump said "the process has people calling us a joke and calling us a laughing stock" -- which is not what Trump said.  Sanders also added that Trump was "voicing his frustration with the lengthy process that often comes with a case like this."...

Legal scholars are divided on whether Trump could actually send people to Guantanamo, with most acknowledging that such an action would set up an unprecedented constitutional showdown. Daphne Eviatar, the Human Rights Director with Amnesty International, slammed Trump's suggestion that he would consider sending Saipov to Guantanamo, stating that he was "a criminal suspect and should be treated as such by the US justice system."

Trump also derided political correctness in his Wednesday remarks, complaining that the country is "so politically correct that we're afraid to do anything."

Prior related post:

November 1, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26)

Very excited for (not-so) new endeavor at OSU Moritz College of Law with creation of new Drug Enforcement and Policy Center (DEPC)

Images (1)Regular readers know that I often write about a range of drug enforcement and policy issues in this space and elsewhere, so I doubt anyone will be too surprised to read about this exciting new chapter for my work in this arena via this Ohio State University press release:

The Ohio State University Moritz College of Law announced today that it will establish the Drug Enforcement and Policy Center (DEPC) with funding provided by a $4.5 million gift from the Charles Koch Foundation.

The DEPC will support and promote interdisciplinary research, scholarship, education, community outreach and public engagement on the societal impacts surrounding legal reforms that prohibit or regulate the use and distribution of traditionally illicit drugs. Robert J. Watkins/Procter & Gamble Professor of Law Douglas A. Berman will lead the center, which will draw on institutional expertise from the Moritz College of Law, John Glenn College of Public Affairs, College of Social Work and across the university to examine the impact of modern drug laws, policies and enforcement on personal freedoms.

“The Drug Enforcement and Policy Center will serve as an objective, reputable voice in the national conversation relating to drug laws and enforcement,” said Moritz College of Law Dean Alan C. Michaels. “Doug is the perfect person to lead this interdisciplinary endeavor as we build on our strengths at the law school -- and comprehensively across Ohio State -- with research and outreach activities that will provide critical evidence to help inform policy decisions at the local, state and national levels.”

The DEPC will foster collaboration among Ohio State’s nationally recognized faculty in the areas of criminal law, public affairs, legislative reform, community well-being, economic development and social justice to explore how the “war on drugs” and other drug enforcement policies have affected Americans over the past half-century and possibilities for reform and improvement. It will also serve as an independent and reliable source for researchers, policymakers, the media and others interested in objective information about drug enforcement and reform, including rigorous examination of ongoing efforts by many states to replace blanket marijuana prohibition with various legalization and regulatory systems and rules.

“I am honored to serve as the first executive director of the Drug Enforcement and Policy Center as we begin important work across a breadth of critical topics at a time when leaders of all political beliefs are looking for reliable and objective evidence concerning the impact of modern drug policies and practices,” Berman said.

Cross-posted at Marijuana Law, Policy and Reform

November 1, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

Tuesday, October 31, 2017

Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?

Despite the fact that Prez Obama and Attorney General Eric Holder sometimes hinted at having some ambivalence about the modern death penalty, the Justice Department during the Obama era consistently pursued and secured federal death sentences against high-profile mass murderers such as the Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof.  Now, sadly, we have our first high-profile mass murder of the Trump era in which the murderer lives on to be subject to criminal prosecution.  The headline, "NYC terror attack leaves 8 dead, several injured; suspect's notes pledged ISIS loyalty," and first few paragraphs of this Fox News report highlight some of the reasons I would expect this latest mass murderer to soon be facing a federal capital charge:

A suspect accused of plowing a pickup truck onto a bike path and into a crowd in New York City Tuesday, killing at least eight people and injuring 11 more, is not a U.S. citizen and is originally from Uzbekistan, federal law enforcement sources have confirmed to Fox News.

The suspected driver, 29-year-old Sayfullo Saipov, had handwritten notes pledging his loyalty to the Islamic State terror network and shouted "Allahu Akbar" after the crash, law enforcement officials told Fox News. Saipov, who was shot by police, was taken into custody and remains hospitalized.

The suspect, from Ukbekistan, had a green card, a source told Fox News. Saipov came to the U.S. in 2010, and, according to The Associated Press, has a Florida license but may have been living in New Jersey.  Saipov was an Uber driver who had passed a background check, the company told Fox News.  It added that Saipov has now been banned from the app, and Uber has offered assistance to the FBI.

His notes, written in Arabic and pledging loyalty to ISIS, turned up in and near the vehicle, Fox News is told. In addition, The New York Post reported that investigators found "an image of the ISIS flag inside his vehicle."

Four of the injured were teachers and students who were riding on a short yellow school bus near Stuyvesant High School when they were hit by the suspect's Home Depot rental truck. One student remains in critical condition.

A victim killed in the attack was a Belgian citizen, Belgian Deputy Prime Minister and Foreign Affairs Minister of Belgium Didier Reyners tweeted on Tuesday. Three Belgians were also injured.  Others killed in the attack were Argentine citizens, according to Argentina's Foreign Ministry. Argentine newspaper La Nacion reported five of the eight people killed were Argentines traveling in the U.S. on a celebratory vacation.

As I have said after other similar horrible mass killing incidents, jurisdictions that retain the death penalty presumably do so in order to have the ultimate punishment available for these kinds of ultimate crimes.  Especially because both Prez Trump and Attorney General Sessions have be express supporters of the death penalty, I would be truly shocked if Sayfullo Saipov is not soon a capital defendant.

October 31, 2017 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (11)

"What Constitutes 'Consideration' of Mitigating Evidence?"

The question in the title of this post is the title of this new paper available via SSRN authored by Emad Atiq and Erin Lynn Miller. Here is the abstract:

Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense.  Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered.  We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.

A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty.  SED has played a central role in the Court’s elaboration of the “consideration” requirement.  It is often given what we call “narrow-scope consideration,” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime.  We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral — as opposed to legalistic — appraisal of the evidence.  When judges determine mitigating significance based on precedential reasoning or judge-made rules they fail to give a reasoned moral response to the evidence.  We articulate a three-factor test for when legalistic thinking prevents a judge from satisfying the constitutional requirement.  Narrow-scope consideration of SED evidence, in many jurisdictions, fails the test.

We contend, second, that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from narrow scope consideration of mitigating evidence.  The Constitution requires that death sentences must be consistent with community values.  Broad scope consideration of mitigating evidence ensures that the diverse moral views of the community are brought to bear on the question of death-deservingness before a capital sentence is issued.

October 31, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

You be the state judge: what sentence for autistic man whose first convictions resulted from years of fondling young girl?

Perhaps because we recently have been discussing mandatory minimum sentences for aggravated sexual offenses in my Criminal Law class, I was intrigued by this sentencing story out of the state courts in Kansas.  The piece is headlined "Judge to weigh input before sentencing child molester, including numerous letters supporting him," and here are the basics that set up the question in the title of this post:

In August a jury convicted James M. Fletcher, 35, of Lawrence, of five counts of aggravated indecent liberties with a child, for repeatedly fondling a girl over the course of more than two years, starting when she was 11. Under sentencing guidelines, even though he has no other criminal history, Fletcher faces up to life in prison with no possibility of parole for at least 25 years, plus lifetime registration and supervision if he were to be paroled.

Fletcher’s sentencing hearing was Monday, but a ruling was delayed until Nov. 9. Judge Peggy Kittel took under advisement a request from Fletcher’s attorneys to give him a lighter sentence than what the guidelines require. Kittel said she wanted time to weigh her decision “due to the length of sentence Mr. Fletcher is facing.”

His situation is unusual, Kittel said.  “What makes this case so hard is that Mr. Fletcher has no criminal history, yet is facing a lifetime sentence,” Kittel said.

The numerous letters of support from family, friends, neighbors and co-workers are “impressive,” Kittel said. Fletcher’s co-workers lauded him as a capable electrical engineer, intelligent and even “brilliant,” she said.  “And yet a jury found him guilty of betraying the trust of (the victim),” the judge said. “…He stands convicted of something, really, ethically and morally wrong.”

More than three dozen people attended Monday’s hearing.  That included the victim, who also testified at the trial, but most were supporters of Fletcher. None spoke, and neither did Fletcher other than yes and no answers to the judge, with his head otherwise bowed. Fletcher, who has been jailed since his conviction, appeared in shackles and inmate clothing. The judge did, through prosecutors, receive and read a letter from the victim with a picture that she drew, but the letter was not read aloud nor the picture displayed in court. The judge also referenced the many letters in Fletcher’s support that she received earlier.

Fletcher’s attorneys, Sarah Swain and Cooper Overstreet, emphasized his lack of criminal history, his strong support system — pointing to Fletcher’s wife, parents, relatives and friends in the audience — his model behavior while out on bond prior to his conviction and his proactivity in seeking counseling for what was described in trial as a sexual attraction to the teenage body type. “That’s a very rare thing,” Swain said. “These can only be positive steps, steps in the right direction.”

Swain also added that, prior to legislation known as Jessica’s Law, the crimes of which Fletcher was convicted would have carried a substantially lighter sentence. That law, in part, increased penalties for certain sex crimes against children. Defense attorneys requested a total sentence for Fletcher of two and a half years, or 29 and a half months on each count, running concurrently.

Prosecutor Mark Simpson said the defense's arguments were not compelling enough to depart from sentencing guidelines. In fact, Simpson said some of those same points made Fletcher’s crimes even worse. “She trusted him,” Simpson said of the victim. “He was able to have access to her in a way that she could not have been more vulnerable.”

A psychological evaluation of Fletcher concluded that he would not be able to “groom” a child because he had autism, Simpson said, but that diagnoses only came when Fletcher was 34 and seemed to contradict descriptions of him in the numerous letters of support. The same analysis concluded that Fletcher intellectualized and rationalized behavior, limiting the ability of any treatment to be effective, Simpson said.

Simpson said the crimes occurred in a house under the same roof as several of Fletcher’s relatives, who at one point even suggested that his “cuddling” was inappropriate. Simpson said Fletcher orchestrated the abuse in part by trying to convince the girl she was only dreaming it. “This was not one bad decision,” Simpson said. “This was ongoing — years of carefully planned abuse by the defendant.”

Prosecutors are requesting a sentence of life in prison for Fletcher.  Simpson said that if Fletcher were paroled after 25 years, he would have served the equivalent of five years of prison for each count. "That does not seem like an inappropriately long sentence to me," he said.

Fletcher was charged in Douglas County District Court in September 2015 with one count of aggravated indecent liberties with a child under 14, with four more counts added in May 2016.  Charges indicate Fletcher molested the girl from December 2012 through January 2015, when the victim was 13.  The victim told the jury that numerous times when she stayed at Fletcher’s house in Lawrence, he fondled her bare breasts under her T-shirt at night. She said sometimes she was awakened by the action but that she pretended to be asleep, and that afterward she felt “scared,” “confused” and initially passed off the encounters as dreams “to give myself a reason to not have to tell anybody.”

The girl said no one else saw the alleged molestation and that she never told anyone until February 2015, after a confrontation between Fletcher and her mother, where Fletcher told her mother he was sexually attracted to teens and worried he would develop an attraction to the girl.

This kind of case is the sort that, in my view, showcases why sentencing decision-making can be so challenging for judges and why modern mass incarceration in a consequences of so many choices by so many players in the criminal justice system.  As the article reveals, the severity of the sentence here appears to be the product of, inter alia, the legislature increasing punishments under Jessica's law, prosecutors bringing multiple charges, the defendant contesting those charges at trial, and the operation of state sentencing guidelines.  And still, it appears, the sentencing judge has authority to impose a sentence as low as only 2.5 years in prison or as long as a mandatory 25 years in prison.  If/when judges regularly max out sentences in these kinds of tough cases, prison populations will always be large.

This case also serves as a notable example of how many different ways one can characterize offense conduct and offender characteristics.  Is this case properly and usefully labelled a violent offense?  Is it properly and usefully labelled a first or a repeat offense?  Is this the worst kind of sex offense because of the age of the victim and the duration of the activity or would the label repeat child rape not fairly characterize the the criminal activity.  And is the defendant here clearly autistic?  Does that matter?  Is he at high risk to reoffend if he only serves 2.5 years in prison?  Might be be at higher risk to reoffend if he were sentenced to a longer prison term? 

October 31, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Sunday, October 29, 2017

"A Culture that is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases"

The title of this post is the title of this notable new empirical paper authored by Jon Gould and Kenneth Leon. Here is the abstract:

Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence.  Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory.  This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence.

Using frequentist and Bayesian methods — supplemented with expert interviews — we empirically assess the processes determining the total allocation of defense resources in federal death penalty trials at the peak of the federal death penalty — between 1998 and 2004. Our findings strongly connect extralegal factors to the lowest levels of defense resources, which in turn correlate with a higher risk of a death sentence.  Far from being idiosyncratic discrepancies, these are systemic and systematic extralegal factors that stand between a defendant and his opportunity to defend against a death sentence.  Ultimately, we argue for a reconceptualization of extralegal influences and the relationship between local legal culture and capital case outcomes.

October 29, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

SCOTUS back in action with two intricate habeas cases

After a late October break (which included for some Justices a notable trip to my alma mater), the Supreme Court is back in action on Monday.  And right out of the gate, SCOTUS hears oral argument in two habaes procedure cases: Ayestas v. Davis and Wilson v. Sellers.  Steve Vladeck has thoughtful previews of both cases at SCOTUSblog, and here are links and the start of each preview:

Ayestas v. Davis Argument preview: A subtle but significant dispute over funding federal habeas petitions in capital cases:

As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.”  When the Supreme Court returns to the bench next Monday morning to hear argument in Ayestas v. Davis, it will consider a recurring question in federal habeas cases, especially those raising claims that the prisoner’s trial lawyers provided ineffective assistance of counsel: What, exactly, must habeas counsel demonstrate to show that such services are “reasonably necessary for the representation of the [petitioner]”?

The U.S. Court of Appeals for the 5th Circuit has imposed a high bar in such cases, holding that such funding is “reasonably necessary” only when the petitioner can demonstrate a “substantial need” for the services contemplated by the statute — i.e., “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The question at the heart of this case is whether that standard puts too high a burden on capital habeas petitioners — requiring them to all-but describe the merits of their ineffective-assistance claims in order to obtain funding to prove those claims.  Assuming the Supreme Court has jurisdiction to answer that question (an issue raised by the state of Texas), the answer could have enormous consequences for the ability of indigent death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial lawyers.

Wilson v. Sellers Argument preview: To which state-court adjudications must federal habeas courts defer?

In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996.  But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”  Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition.  Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”

The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter.  Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion.  And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.

October 29, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, October 28, 2017

"The Right Way: More Republican lawmakers championing death penalty repeal"

The-Right-Way-Thumbnail-232x300The title of this post is the title of this new report released this past week by the group Conservatives Concerned About the Death Penalty.  Here is its executive summary and part of its introduction:

More Republican lawmakers are recognizing that the death penalty is a broken policy and taking an active role in efforts to end it.  This report documents that shift by analyzing sponsorship of death penalty repeal bills in state legislatures between 2000 and 2017.

During the first part of this time period, from 2000 to 2012, Republican sponsorship of legislation to end the death penalty was relatively rare, with the number of Republican sponsors per year never exceeding single digits. But that has changed during the past five years, when there has been a significant increase in the number of Republican sponsors of repeal legislation.

In 2016 and 2017, dozens of Republican lawmakers sponsored death penalty repeal bills. In fact, during these two years, Republicans constituted around a third of all sponsors of death penalty repeal bills in state legislatures. As these data show, death penalty repeal efforts are becoming more bipartisan in many states.

These developments come as a number of conservatives have coalesced under the banner of Conservatives Concerned About The Death Penalty (CCATDP) to raise concerns about the death penalty in the media and other forums. Plagued by wrongful convictions, high costs, and delays, the death penalty has proven to be ineffective and incompatible with a number of core conservative principles. It runs afoul of conservative commitments to limited government, fiscal responsibility, and a culture of life.

Such concerns are increasingly impacting policy debates in state legislatures, among grassroots conservatives, and between conservative faith and party leaders. For many of us, our conservative principles inevitably lead to the conclusion that the death penalty is a failed government program that must end....

Conservatives Concerned About The Death Penalty launched in March 2013 at the Conservative Political Action Conference (CPAC).  At that time, death penalty use was rapidly declining. The number of executions was down to less than half of its peak in 1999. Annual death sentences were down to just over one quarter of their record high in 1996, and public support was down 20 points from its highest point in 1994....

Some of the biggest death sentencing drops occurred in reliably red states like Texas, Oklahoma, Alabama, and Louisiana. Many point to the action of a Republican governor in January 2000 as the death penalty’s turning point when Illinois’ then-Governor, Republican George Ryan, imposed the nation’s first state-based moratorium on executions. This set off a wave of increased scrutiny and institutional opposition to the death penalty. That same year, New Hampshire’s Republican-controlled legislature voted to repeal the death penalty, only to have its Democratic governor veto it.

Despite this history of efforts from Republicans, death penalty repeal was still largely seen as a liberal concern.

CCATDP’s launch in 2013 put conservative death penalty opposition on the national radar. For many conservatives, our launch was their first exposure to the conservative case against the death penalty.  For many others, it was the first time they realized they weren’t alone.

Since then, dozens of national, state, and local conservative leaders have lent their support to CCATDP.  Eleven local CCATDP branches have formed in states across the country. More than 1,400 media stories have included our conservative take on the death penalty. Among those, we have appeared on conservative talk radio stations in every state in the country. And Republican lawmakers have taken on death penalty repeal in statehouses from Virginia to Washington, Louisiana to Utah.

This report documents this last point – the dramatic rise in Republican sponsorship of bills to end the death penalty. It includes profiles of several Republican lawmakers who are leading the way, and it highlights some of the other trends that helped contribute to this rise.

October 28, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (6)

Friday, October 27, 2017

Expressing concerns about how risk assessment algorithms learn

This New York Times op-ed, headlined "When an Algorithm Helps Send You to Prison," is authored by Ellora Thadaney Israni, a law student and former software engineer at Facebook. In the course of covering now familiar ground in the debate over the use of risk assessment tools at sentencing, the piece adds some points about how these tools may evolve and soundly urges more transparency in their creation and development:

Machine learning algorithms often work on a feedback loop.  If they are not constantly retrained, they “lean in” to the assumed correctness of their initial determinations, drifting away from both reality and fairness.  As a former Silicon Valley software engineer, I saw this time and again: Google’s image classification algorithms mistakenly labeling black people as gorillas, or Microsoft’s Twitter bot immediately becoming a “racist jerk.”...

With transparency and accountability, algorithms in the criminal justice system do have potential for good.  For example, New Jersey used a risk assessment program known as the Public Safety Assessment to reform its bail system this year, leading to a 16 percent decrease in its pre-trial jail population.  The same algorithm helped Lucas County, Ohio double the number of pre-trial releases without bail, and cut pre-trial crime in half.  But that program’s functioning was detailed in a published report, allowing those with subject-matter expertise to confirm that morally troubling (and constitutionally impermissible) variables — such as race, gender and variables that could proxy the two (for example, ZIP code) — were not being considered.

For now, the only people with visibility into COMPAS’s functioning are its programmers, who are in many ways less equipped than judges to deliver justice.  Judges have legal training, are bound by ethical oaths, and must account for not only their decisions but also their reasoning in published opinions.  Programmers lack each of these safeguards. Computers may be intelligent, but they are not wise.  Everything they know, we taught them, and we taught them our biases.  They are not going to un-learn them without transparency and corrective action by humans.

October 27, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (1)

Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform?

At the spectacular Advancing Justice summit yesterday (basics here), a whole set of "in-the-know" folks stated that there is wide bipartisan support on Capitol Hill for federal sentencing reform.  Specifically, as this brief Axios piece notes, Senator Mike Lee stated in the event's first session that "the Sentencing Reform and Corrections Act would have received 70 votes in the Senate if voted on last year, and would still get 70 votes in the Senate this year." (This Axios piece also report that Senator Lee "wants a vote on the bill before the end of the year.") Senator Lee's views here were echoed later in the day during a keynote speech by Senator Chuck Grassley and during a panel discussion by a number of in-the-know public policy advocates.

But, as optimistic as this all may sound, Matt Ford has this new this big piece at The Atlantic indicating that some key Democratic voices may be unwilling to move forward with sentencing reform proposals if mens rea reform is going to be part of the package.  The piece's headline highlights why pessimism may again be the justified perspective here: "Could a Controversial Bill Sink Criminal-Justice Reform in Congress?: A debate over mens rea stalled the last push for reform. Now, a similar battle could be brewing."   Here is a snippet:

A bill drafted by a group of Senate Republicans earlier this year would tweak the mens rea requirement in federal statutes, adding a default rule for juries to find criminal intent for federal offenses that don’t explicitly have an intent standard. (Mens rea is a legal term derived from the phrase “guilty mind” in Latin.) If enacted, federal prosecutors would need to prove a defendant’s state of mind to obtain a conviction for a host of existing crimes. Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration.

But some Senate Democrats fear the measure is far too sweeping and could be a back-door attack on federal health and environmental regulations that police corporate behavior. Rhode Island Senator Sheldon Whitehouse, a member of the Judiciary Committee, told me earlier this week that he wouldn’t support a sentencing-reform bill if it included the change to mens rea. “It would turn me into a warrior against it,” he emphasized. Chuck Schumer, the Democratic leader in the Senate, would also oppose such a bill, a spokesman confirmed.

Other Senate Democrats criticized a similar measure that passed the House during the last criminal-justice-reform push, which centered on a sentencing-reform bill.  In January 2016, Illinois Senator Dick Durbin, a longtime supporter of reform, said that version of the mens rea proposal “should be called the White Collar Criminal Immunity Act.” (Like Whitehouse, Durbin serves on the Judiciary Committee, which would need to sign off on any mens rea- or sentencing-reform bills.)  Massachusetts Senator Elizabeth Warren said in a speech the following month that the House proposal would “make it much harder for the government to prosecute hundreds of corporate crimes — everything from wire fraud to mislabeling prescription drugs.”  Negotiations over criminal-justice reform ultimately collapsed that summer as the presidential election entered its final stretch.

I have said before and will say again that this kind of opposition to a reform designed to safeguard a fundamental part of a fair and effective federal criminal justice system shows just how we got to a world with mass incarceration and mass supervision and mass collateral consequences.  Nobody seems willing or able to understand that making life easier for prosecutors anywhere serves to increase the size and reach and punitiveness of our criminal justice systems everywhere.  In turn, if you want a less extreme and severe criminal justice system anywhere, the best way to advance the cause is by seeking and advocating to limit government prosecutorial powers everywhere.

So, to answer the question in the title of this post, I think I have to stick with persistent pessimism for the time being.

October 27, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (7)

"How to Assess Real World Application of a Capital Sentencing Statute: A Response to Professor Chad Flanders's Comment"

The title of this post is the title of this new paper by John Mills now available via SSRN. As the title indicates, this piece is a response to a recent article by Chad Flanders, blogged here, about capital sentencing procedures. Here is the abstract:

In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope.  To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst.  Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point.  This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract.  This response focuses on Arizona’s capital sentencing regime to illustrate the importance of understanding the real world operation of the law and discusses the well-established basis in law and policy for relying on empirical studies in support of narrowing claims.

Prior related post:

October 27, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12)

Thursday, October 26, 2017

Gallup reports reduced levels of support for death penalty in US

Tfkakmgl20mit7ddmcueeqAs reported in this new posting from Gallup, "Americans' support for the death penalty has dipped to a level not seen in 45 years. Currently, 55% of U.S. adults say they favor the death penalty for convicted murderers." Here is more:

The latest results, based on an Oct. 5-11 Gallup poll, continue a trend toward diminished death penalty support as many states have issued moratoria on executions or abolished capital punishment.  Gallup first asked about the death penalty using the current question format in 1936. Support has generally been 60% or higher throughout most of the past 80 years, but has been as low as 42% and as high as 80%.

The low point came in 1966 during a period spanning the late 1950s through early 1970s when a series of court cases challenged the legality of capital punishment. This culminated with the Supreme Court's 1972 decision in Furman v. Georgia that halted all U.S. executions. Three months before that ruling, 50% of Americans said they favored the death penalty.  Four months after it, 57% were in favor, the last time support was below 60%.

State legislatures responded to the Furman ruling by rewriting state laws to address the high court's concerns that the death penalty was not applied fairly.  Those new laws were deemed constitutional, leading to the resumption of capital punishment in the late 1970s. Death penalty support generally increased from the mid-1970s to the mid-1990s, peaking at 80% in 1994, a time when Americans named crime as the most important problem facing the nation.

Most of the decline in death penalty support in recent years is attributable to a drop in support among Democrats. In the early 2000s, consistent majorities of Democrats favored capital punishment -- but their support has been below 50% in each of the past five years, including just 39% in the current poll.

In contrast, Republicans continue to largely back the death penalty, with typically around eight in 10 in favor of the practice, though slightly fewer, 72%, do so in the current poll.  Independents' support is similar to the national average, at 58%, but has been lower the past three years than it was in most of the previous two decades....

Currently, 39% of Americans say the death penalty is not imposed often enough, 26% say it is used too much, and 26% say its use is about right.  Those views have been fairly steady in recent years but reflect a decline since 2010 in the percentage saying the death penalty is not used often enough.  That decline has mostly been accompanied by an increase in the percentage saying it is used too often.

Attitudes about the fairness and usage of the death penalty correspond with basic support or opposition toward capital punishment more generally.  Thus, the declines in recent years in the percentage of U.S. adults who say the death penalty is applied fairly or who are critical of how often it is used are largely related to the decline in basic death penalty support.

Over at Crime & Consequences, Kent Scheidegger has a few comments about these Gallup numbers, including this important observation:

The question Gallup has asked since 1936 is, "Are you in favor of the death penalty for a person convicted of murder?" The question is misleading as it asks about the death penalty for murder generally rather than just the worst murders. So understood, I would answer that question "no" myself. Gallup seems oblivious to the deficiency in this question, though, and regularly headlines the results in its reports. This year's "favor" answer to that question is the lowest since March 1972 (before Furman v. Georgia), and that is the headline on their report.

October 26, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Prez Trump to declare opioid epidemic a "public health" emergency

As reported in this piece from The Hill, "President Trump on Thursday will instruct the acting director of the Department of Health and Human Services to declare the opioid epidemic a public health emergency, White House officials said." Here is more about this notable news:

It's a move that won't free up additional federal funding and is a more narrow option recommended by the president's opioid commission.  The announcement has been months in the making and avoids declaring a more sweeping national emergency under the Stafford Act, which was one option the administration's opioid commission had previously recommended.  The commission recommended either a public health emergency or a Stafford Act emergency.

The Stafford Act “doesn't offer authority that is helpful here," a senior administration official said. "There has been some false reporting about this." A Stafford Act emergency is typically reserved for a terror attack or natural disaster in a more localized area.

Trump will formally make the announcement during a White House event Thursday.... On Aug. 10, Trump said his administration was drafting paperwork to officially declare the epidemic a national emergency, which was the “first and most urgent” recommendation in an interim report from his commission to combat the crisis. Two months later, some advocates and lawmakers were frustrated that the declaration still hadn’t come. At a press conference last week, Trump said he’d make the announcement this week, calling a declaration “a very important step” and saying “to get to that step, a lot of work has to be done and it’s time-consuming work.”

Administration officials said they felt that a public health emergency was a better use of resources.  It will allow acting HHS Secretary Eric Hargan to loosen certain regulations and issue grants and spend money that he otherwise would not be able to.  A public health emergency needs to be renewed every 90 days until the declaration is no longer needed.

Three agencies that play a role in the federal response to the opioid epidemic have acting directors instead of Senate-confirmed leaders: the White House Office of National Drug Control Policy, the Department of Health and Human Services and the Drug Enforcement Administration.  Rep. Tom Marino (R-Pa.) — an early backer of Trump — withdrew as the ONDCP nominee last week following a Washington Post-"60 Minutes” joint investigative report on a bill he sponsored that weakened the DEA's ability to enforce the nation’s drug laws.  Marino has vigorously defended himself. White House officials said Trump will be submitting names to lead HHS and ONDCP soon but pointed to “obstructionists” in the Senate for slowing down confirmation of lower level agency appointees who could help implement the action.

The declaration could spark a funding feud in Washington, as some say more cash is needed to make a declaration effective. The amount of money left in the public health emergency fund is paltry — just $57,000.  Administration officials said there have been ongoing discussions with Congress about securing more money for the fund as part of the year-end spending bill, but would not discuss specific dollar amounts.

Though I am sure there will criticism and debate as to whether the Trump Administration is doing enough with this latest move and other actions, I cannot help but note and praise the labeling and symbolism here.  Today's announcement involves a declaration of a "public health" emergency rather than a declaration of a "war on opioids" or advocacy for increased punishments for opioid activity.  (Although until we hear what Prez Trump actually says this afternoon, it may be premature to praise what it would seem he plans to say and I recall that last month AG Sessions talked about winning the war against opioids.)

In prior generations, such as when crack was the drug of great concern in the 1980s, the response at the federal level was to increase and emphasize the criminal justice fight in various ways.  A "public health" focus for drug problems is one that has been long urged by researchers and advocates; today's announcement suggests some rhetoric of late is shifting to embracing a "public health" model — although on-the-ground realities demonstrate that the criminal justice system is still playing a huge part of the public response to opioid and other drug issues.

A few of many recent related posts:

October 26, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

"30 Years Later: A Look Back at the Sentencing Guidelines"

The title of this post is the title of an event the took place earlier this week at the Hofstra University Club and was recorded and preserved here via YouTube. Here is a brief description of the event:

In 1987, the U.S. Sentencing Commission transformed criminal law in the United States in releasing the original Federal Sentencing Guidelines.  From the start, Hofstra Law was at the forefront of sentencing scholarship, publishing key insights from the earliest days of the Commission.  On Monday, October 23, distinguished members of the Judiciary, past and present Commissioners, and leading scholars commemorated the original U.S. Sentencing Commission and marked the 30th Anniversary of the Sentencing Guidelines at the Hofstra University Club.

Notaby, the event included a keynote address by SCOTUS Justice Stephen Breyer (which starts around the 1:05 point on the video).

October 26, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Wednesday, October 25, 2017

Excited to be inside the Beltway to help with "Advancing Justice"

Blogging may be light over the next 36 hours because I am in Washington DC to participate in this great event, "Advancing Justice 2017: An Agenda for Human Dignity & Public Safety." Here is how the event is described/summarized:

Criminal justice and policing reforms have made tremendous gains at both the state and federal level in the last several years.  However, the ongoing opioid crisis, questions around violent crime, and continued police militarization show us that there is still much to be done.

On Thursday, October 26, please join the Charles Koch Institute for a one-day conference in Washington, D.C. to identify the next set of criminal justice reform priorities, and showcase a broad coalition of policy makers, academics, think tanks, and community activists who’ve helped bring us this far.  Together, 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. We hope you can join us.

The conference speakers include Senator Chuck Grassley, Chairman of the Judiciary Committee, U.S. Senator Mike Lee (R-UT), former U.S. Senator Jim DeMint, John Pfaff, professor of law and economics at Fordham University, Doug Berman, the Robert J. Watkins/Procter & Gamble Professor of Law at Ohio State University, Anne Milgram, a professor of practice & distinguished scholar at New York University School of Law, former Baltimore Ravens Player Eugene Monroe, George J. Terwilliger III, former acting attorney general and partner at McGuireWoods, and Sharanda Jones, a criminal justice reform advocate who received clemency for a life sentence.

Given this amazing collection of 40+ speakers scheduled to speak at this event, I am amazed and humbled I got included in the summary "teaser" of conference speakers.  I will be speaking on a late morning panel titled "A Fight over Federalism: The Future of Marijuana Policy," and I am genuinely excited about attending so many of the other amazing sessions on this agenda covering so many timely and important criminal justice reform issues of the day.

October 25, 2017 in Who Sentences? | Permalink | Comments (7)

US Sentencing Commission releases new report on "Mandatory Minimum Penalties for Drug Offenses in the Federal System"

Cover_drug-mand-minVia email, I just learned that the US Sentencing Commission has this morning released another big notable data report on mandatory minimum sentences in the federal system.  This latest report it titled "Mandatory Minimum Penalties for Drug Offenses in the Federal System," and this USSC webpage provides links to the full report and particular chapters. That same pages also provides this summary and overview of the report's key findings:

Summary

Using fiscal year 2016 data, this publication includes analysis similar to that in the 2017 Overview Publication, providing sentencing data on offenses carrying drug mandatory minimums, the impact on the Federal Bureau of Prisons (BOP) population, and differences observed when analyzing each of five main drug types.  Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.  Because drug offenses are the most common offenses carrying mandatory minimum penalties, many of the trends in this publication mirror the trends seen in the 2017 Overview Publication.

Key Findings

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for drug offenses.  As part of this analysis, the Commission makes the 10 key findings:

1. Drug mandatory minimum penalties continued to result in long sentences in the federal system.  

2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population.  

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentage of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.  

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, those who were tended to be more serious.  

5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated.  

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties and results in significantly reduced sentences when applied.  

7. Additionally, drug mandatory minimum penalties appear to provide a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provision at USSG §5K1.1.  

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f) nor the substantial assistance provision at 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.  

9. There were significant demographic shifts in the data relating to mandatory minimum penalties.  

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Kudos to the USSC for continuing to release timely and informative reports as debates over federal sentencing policies and practices continue.  I hope in coming days to find time to mine some more findings from this report that I would consider "key," and I welcome comments that flag any and all elements of this latest report that folks consider especially interesting or important.

October 25, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, October 24, 2017

Many (but not all) Massachusetts DAs come out against eliminating certain drug mandatory minimums and other proposed reforms

This Boston Globe article, headlined "In harsh letter, DAs pan Senate’s criminal justice proposal," reports on a notable letter signed by most of the District Attorneys of Massachusetts to oppose a set of state criminal justice reform proposals. Here is the start of the article (which includes a link to the letter to legislators):

In a blistering public rebuke, nine of Massachusetts’ 11 district attorneys came out Monday against major parts of the state Senate’s sweeping criminal justice bill, which is aimed at reducing the number of people caught in the system.  In a six-page letter that comes days before the chamber is set to take up the legislation, top law enforcement officials railed against what is a Senate priority.

Although they praise some aspects of the bill, overall it “undermines the cause and pursuit of fair and equal justice for all, largely ignores the interests of victims of crime, and puts at risk the undeniable strides and unparalleled success of Massachusetts’ approach to public safety and criminal justice for at least the last 25 years,” the DAs wrote.

The letter also marks a break among the top prosecutors, with the signatures of Northwestern District Attorney David E. Sullivan and Middlesex District Attorney Marian T. Ryan — who is the chief law enforcement official of the state’s most populous county — notably absent.

The nine DAs are against eliminating mandatory minimum sentences for certain drug crimes such as trafficking up to 100 grams of cocaine — one proposal in the legislation scheduled for a Thursday vote in the Senate. And they expressed particularly vociferous opposition to the part of the bill that would make those changes retroactive, allowing hundreds of drug dealers the opportunity to get out of prison early.   “Where exactly are the residents eager for violent drug traffickers to be returned to their neighborhoods?” they wrote. 

Advocates and senators say mandatory minimums are a failed tactic from the war on drugs, one that has unnecessarily ensnared generations of people, particularly from communities of color, in the criminal justice system. And making the repeal of certain drug mandatory minimums retroactive is important for equity, they say.

The DAs energetically oppose the provision that would raise the age of criminal majority to 19, meaning all but the most serious offenses committed by 18-year-olds would likely be adjudicated confidentially in front of a juvenile court judge.

Advocates and Senate leaders say scientific research shows young people’s brains keep maturing into their 20s, and it is appropriate for the law to acknowledge that evolution. They say it’s just common sense to treat all high school kids the same way, instead of punishing an 18-year-old much more harshly than a 17-year-old for the same crime.

But the DAs wrote that “adopting a law that enables anyone to declare that ‘I am not responsible for my actions, my brain is!’ is something no rational parent would accept, and creates a slippery slope.”

The DAs vehemently oppose rewriting the state’s statutory rape law, which currently makes sex with anyone under 16 against the law. The bill would legalize consensual sex between teens close in age — an 18-year-old and a 15-year-old, or a 15-year-old and a 13-year-old, for example. That provision is “both unnecessary and dangerous, especially to girls and young women,” the nine DAs wrote.  But advocates say a so-called Romeo-and-Juliet law is sensible, and criminalizing the sexual contact young people inevitably have with each other is not the best way to respond to it.

October 24, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Resolving Judicial Dilemmas"

The title of this post is the title of this new paper authored by Alex Sarch and Daniel Wodak recently posted to SSRN.  Here is its abstract:

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing.  Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well.”

When faced with such a judicial dilemma — a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses — sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”) — are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both.  Judges should, in other words, look for and employ what we dub Satisficing Options.  These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible — even if the acts in question would not strictly count as optimal by the lights of the law or morality.

This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import.  Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences.  While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas.  This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system.

October 24, 2017 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, October 23, 2017

New study of Pennsylvania death penalty finds disparity based on race of victim and type of representation

This new local AP article, headlined "Study: Victim's race factor in imposing death sentences in Pa.," reports on some interesting findings of a big forthcoming report about the death penalty's application in the Keystone State.  Here are the details as reported by the AP:

A new study of capital punishment in Pennsylvania found that death sentences are more common when the victim is white and less frequent when the victim is black.  The report, which drew from court and prosecution records over an 11-year period, concluded that a white victim increases the odds of a death sentence by 8 percent.  When the victim is black, the chances are 6 percent lower.

“The race of a victim and the type of representation afforded to a defendant play more important roles in shaping death penalty outcomes in Pennsylvania than do the race or ethnicity of the defendant,” according to the 197-page report obtained by The Associated Press.

Penn State researchers produced the $250,000 study for the Interbranch Commission for Gender, Racial and Ethnic Fairness, and its findings are expected to be incorporated into a separate, ongoing review of the state's death penalty that Democratic Gov. Tom Wolf has said could affect the death penalty moratorium he imposed shortly after taking office in 2015.

The report also found the prosecution of death penalty cases varies widely among counties, calling that variation the most prominent differences researchers identified. “A given defendant's chance of having the death penalty sought, retracted or imposed depends a great deal on where that defendant is prosecuted and tried,” they concluded. “In many counties of Pennsylvania, the death penalty is simply not utilized at all. In others, it is sought frequently.”...

Researchers with Penn State's Justice Center for Research said there was no “overall pattern of disparity” by prosecutors in seeking the death penalty against black or Hispanic defendants, but did detect a “Hispanic victim effect” in which prosecutors were 21 percent more likely to seek death when the victim was Hispanic.  Black and Hispanic defendants who killed white victims were not more likely than a typical defendant to get a death sentence.

In nearly a quarter of all cases, defense lawyers did not present a single “mitigating factor” to push back against the aggravating factors that must be proven in order to justify a death sentence.... With the exception of Philadelphia, which has a unique system for providing lawyers to those who can't afford them, defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.

Unlike studies in some other states, the researchers said there was “no clear indication” that defendants with private attorneys — as opposed to court-appointed counsel — were more likely to get a plea deal with prosecutors that avoided a death sentence.

Notably, the Pennsylvania District Attorneys Association released on Monday this press release about the report titled "PA Report Refutes Death Penalty Myths."  Here is how it starts:

A study on capital punishment decisions in Pennsylvania found there is no racial bias in prosecutors’ decisions or in defendants who receive death penalty sentences. The findings of the report are in direct contrast to the racial-bias narrative pushed for years by anti-death penalty advocates and are important new facts any discussion about capital punishment must recognize.

“This report’s conclusion is clear: capital punishment in Pennsylvania is not disproportionately targeted against defendants of color,” said PDAA President and Berks County District Attorney John Adams. “For so long, those who have sought to abolish the death penalty have argued that the race of the defendant plays the critical role in decisions about who gets the death penalty. This report squarely debunks that theory.”

The report, prepared by Penn State University researchers for the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, has not yet been made public but was provided by an unknown source to the Associated Press. In it, the report clearly states that “[n]o pattern of disparity to the disadvantage of Black or Hispanic defendants was found in prosecutorial decisions to seek and, if sought, to retract the death penalty.” Similarly, according to the report, “[n]o pattern of disparity to the disadvantage of Black defendants with White victims was found in prosecutorial decisions to seek or to retract the death penalty.”

October 23, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)