Wednesday, June 17, 2015
As Gov Jindal talks up sentencing reform and medical marijuana in Iowa, should we wonder what "The Donald" has to say on these issues?
The question in the title of this post captures some notable news from the GOP campaign trail this week. The seemingly more serious news is discussed in this NOLA.com article, headlined "Bobby Jindal talks medical marijuana, sentencing reform with The Des Moines Register." Here are the details from that report:
Gov. Bobby Jindal doubled down on his commitment to sign two pieces of state legislation related to marijuana during a video interview with The Des Moines Register. "We are going to sign both bills. They've made it through the process. They are going to make to my desk in the next few days," Jindal told The Des Moines Register....
Jindal backs legislation to establish a framework for access to medical marijuana in Louisiana. Technically, medical marijuana has been legal in the state for years, but there's never been rules written to regulate growing, prescribing or dispensing it. The new law, should Jindal sign it, would set up those regulations. "Look, if it is truly tightly controlled and supervised by the physicians, I'm ok with that," Jindal said.
The governor also said he would approve a bill that reduces maximum sentences allowed for many types of marijuana offenders. As governor, Jindal said he has increased penalties for people who violent offenders -- sex crime perpetrators and others -- but is in favor of reducing penalties for people who commit nonviolent crimes. "At the federal level, I think there is a bipartisan effort to look at sentencing reform. I think that makes sense," Jindal said.
But, perhaps unsurprisingly, a decision by a high-profile individuals to throw his hat in the GOP presidential ring has garnered the most media attention this week. And this ABC News report highlights some reasons why Donald Trump's views on sentencing and marijuana reform may really be consequential in the coming months:
[T]here’s a slice of voters, not insignificant in the Republican primary race, who despise Washington and politicians more broadly. Every candidate likes to try to channel that, but none bring the bluster that Trump does.... Trump is a sideshow, but one whose act will spill on to the main stage, particularly if he earns a debate invitation or three....
From Facebook: “In the 24 hour period between 12:01 a.m. ET June 16 and 12:01 a.m. ET June 17, 3.4 million people on Facebook in the U.S. generated 6.4 million interactions (likes, posts, comments, shares) related to Donald Trump and his announcement. Note: over the last 90 days, conversation about The Donald has been generated by an average of about 39,000 unique people per day.”
Monday, June 15, 2015
Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"
Former Texas congressman Ron Paul has this notable new anti-death penalty commentary now up at Townhall. Here are excerpts:
Nebraska's legislature recently made headlines when it ended the state's death penalty. Many found it odd that a conservatives-dominated legislature would support ending capital punishment, since conservative politicians have traditionally supported the death penalty. However, an increasing number of conservatives are realizing that the death penalty is inconsistent with both fiscal and social conservatism. These conservatives are joining with libertarians and liberals in a growing anti-death penalty coalition.
It is hard to find a more wasteful and inefficient government program than the death penalty. New Hampshire recently spent over $4 million dollars prosecuting just two death penalty cases, while Jasper County in Texas raised property taxes by seven percent in order to pay for one death penalty case! A Duke University study found that replacing North Carolina's death penalty would save taxpayers approximately $22 million dollars in just two years....
Despite all the time and money spent to ensure that no one is wrongly executed, the system is hardly foolproof. Since 1973, one out of every ten individuals sentenced to death has been released from death row because of evidence discovered after conviction. The increased use of DNA evidence has made it easier to clear the innocent and identify the guilty. However, DNA evidence is not a 100 percent guarantee of an accurate verdict. DNA evidence is often mishandled or even falsified. Furthermore, DNA evidence is available in only five to 10 percent of criminal cases.
It is not surprising that the government wastes so much time and money on such a flawed system. After all, corruption, waste, and incompetence are common features of government programs ranging from Obamacare to the TSA to public schools to the post office. Given the long history of government failures, why should anyone, especially conservatives who claim to be the biggest skeptics of government, think it is a good idea to entrust government with the power over life and death?...
As strong as the practical arguments against the death penalty are, the moral case is much stronger. Since it is impossible to develop an error-free death penalty system, those who support the death penalty are embracing the idea that the government should be able to execute innocent people for the "greater good." The idea that the government should be able to force individuals to sacrifice their right to life for imaginary gains in personal safety is even more dangerous to liberty than the idea that the government should be able to force individuals to sacrifice their property rights for imaginary gains in economic security.
Opposition to allowing the government to take life is also part of a consistent pro-life position. Thus, those of any ideology who oppose abortion or preemptive war should also oppose the death penalty. Until the death penalty is abolished, we will have neither a free nor a moral society.
I cannot help but wonder if Ron Paul's son, Senator and GOP Prez-candidate Rand Paul, shares these (conservative?) perspectives on the death penalty and might even espouse some anti-death-penalty sentiments on the campaign trail in the future.
SCOTUS grants cert on a federal prisoner (re)litigation case
The Supreme Court started the week by granting review in two cases, one of which concerns prisoner rights and restrictions. The case is Bruce v. Samuels, and this SCOTUSblog page provides this account of the question presented:
Whether, when a prisoner files more than one case or appeal in the federal courts in forma pauperis, the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), caps the monthly exaction of filing fees at 20% of the prisoner's monthly income regardless of the number of cases or appeals for which he owes filing fees.
Sunday, June 14, 2015
Fascinating account of how "how neoliberalism lies at the root of the carceral state"
The always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform." The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:
Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings. So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations. Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”
This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate. But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.
For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can. Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....
[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities. The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.
That discretion could be turned toward lenience. President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency. Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007). The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association. For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.
Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions. Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....
Alleviating the root causes of poverty and inequality will take a long time. In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.
I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.
June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)
"Will Nebraska’s Death Penalty Come Back?"
The title of this post is the headline of this new New York Times editorial. The substance of the editorial makes clear that the NYTimes' answer to the question is "We sure hope not!". Here are excerpts:
In a sensible, humane move last month, Nebraska lawmakers abolished the state’s death penalty by a 30to19 vote that crossed party lines and overrode a veto by Gov. Pete Ricketts. These lawmakers aren’t renegades; an April poll by the American Civil Liberties Union of Nebraska found that 58 percent of Nebraskans supported alternatives to the death penalty, like life without parole.
Now comes the counterattack. A new group called Nebraskans for the Death Penalty has started a petition drive, supported by Mr. Ricketts, to put the issue directly before voters in 2016. Last week, they got the support of the Nebraska Sheriffs’ Association, which claimed, as Mr. Ricketts has, that public safety depends on the state’s ability to kill certain inmates.
To put the proposed referendum on the ballot, death penalty supporters have about three months to get signatures from 5 percent of registered voters, or about 58,000 Nebraskans. If they can get 10 percent, state law will put the ban on hold until the voters have a chance to weigh in. Whether the effort succeeds will depend in large part on how much money death penalty supporters can muster; paying people to go door to door asking tens of thousands of voters for their signatures doesn’t come cheap. In addition to supporting the referendum, Mr. Ricketts is insisting that he still has the legal authority to execute the 10 people remaining on Nebraska’s death row, on the grounds that the Legislature cannot alter an existing sentence. Lawmakers, however, say they have eliminated all executions. Whatever the courts may decide on this question, it remains unclear whether the state even has the means to carry out these killings....
[T]he votes of the Nebraska Legislature show that when lawmakers across the political spectrum can have an open, honest and informed debate on the issue, capital punishment is quickly exposed for the immoral, ineffective, arbitrary and costly practice that it is.
Prior related posts:
- Nebraska legislature votes by large margin to repeal state's death penalty
- Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
- Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
- Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
Saturday, June 13, 2015
How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
The Supreme Court Term is winding down, and we might get a ruling as early as this coming wee in the (re)argued case Johnson v. US concerning the (un)constitutionality of the Armed Career Criminal Act. As federal sentencing fans should know, there seem to be a real chance that Justice Scalia will convince enough of his colleagues to strike down ACCA as unconstitutionally vague.
Helpfully, Leah Litman has already authored an article, "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality", about some of the legal issues that might follow from a big constitutional ruling in Johnson. But the question in the title of this post is focused on the practical question of just how many current federal prisoners serving ACCA sentences of 15 or more years could seek to benefit from ACCA.
This helpful new "Quick Facts" report from the US Sentencing Commission indicates that in Fiscal Year 2014 roughly 10% of 5,500 federal firearm offenders were sentenced under ACCA to an average sentence of 188 months in prison. Assuming that these numbers are typical for firearm sentencing in each of the last dozen years, we can then extrapolate to estimate that there may be as many as 7,000 current federal prisoners serving ACCA sentencing term.
Critically, though, even if the Supreme Court were to declare ACCA's residual clause unconstitutionally vague, that ruling alone would not necessarily impact all (or perhaps even most) of current ACCA prisoners. Sentencing judges in many (maybe most) cases sentenced under ACCA likely did not rely on the residual clause of the statute to find enough triggering prior offenses to require the application of the severe ACCA sentence. Among the uncertainties which could flow from a big ACCA ruling in Johnson is whether other parts of the ACCA statute and prior convictions based on other parts of the ACCA statute are still valid if one ACCA clause is struck down as unconstitutionally vague.
Some related prior posts:
- Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
- Based on questions asked at SCOTUS oral argument, wins predicted for federal defendants in Johnson and Yates
- SCOTUS orders new briefing and argument on ACCA's constitutionality in Johnson!?!?!
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
Friday, June 12, 2015
"Marijuana & Ohio: Past, Present, Potential"
The title of this post is the title of the lengthy research report that was formally released (and extensively discussed) yesterday at the Ohio Marijuana Policy Reform Symposium which I help organize yesterday. The report and related information about Marijuana Policies of Ohio Task Force that released the report can be found at this webpage.
The report is much longer and more data-heavy than anything else previously written about marijuana reform in Ohio, but this AP article discussing its findings also highlights why the report has also become the subject of criticism. The AP piece is headlined "Economics of effort to legalize pot in Ohio in crosshairs," and here are excerpts:
A Republican prosecutor who is heading a task force on marijuana legalization in Ohio said the analysis of potential impacts released by his group Thursday presents a balanced look at the issue, a claim questioned by the state auditor. Hamilton County Prosecutor Joe Deters was asked to chair the Marijuana Policies of Ohio Taskforce by ResponsibleOhio, the group advancing a legalization amendment toward the November ballot.
He said ResponsibleOhio has allowed experts on his task force the editorial freedom to put together a “straightforward assessment” of how legalization might affect law enforcement, public safety, public health and Ohio’s overall economy. “Our report doesn’t make recommendations, and it doesn’t pull any punches,” Deters said. “We’ve made a concerted effort to remain objective, take an even-handed approach and lay out both the good and the bad of legalization.”
The report estimates legalization would create 34,791 jobs in Ohio representing $1.6 billion in labor income in connection with nearly $7 billion in output from the cultivation, extraction, processing and sale of marijuana. The report said research shows legalization doesn’t lead to drastic increases in crime, in adult or teen marijuana use, or in workplace injuries -- a finding Auditor Dave Yost called rosy at best.
“There are unquestionably going to be health and safety impacts,” Yost, an opponent of legalizing marijuana, said. “This task force was stacked like a BLT. Really, in 30 days? This debate has been going on for 50 years and they did a comprehensive study in 30 days?”
The report came the same day a committee of the Ohio Constitutional Modernization Commission was reviewing draft language that would amend Ohio’s constitution to ban changes to the constitution that create monopolies or further the economic interests of select individuals. It comes partly in reaction to a piece of ResponsibleOhio’s proposal that would establish 10 grow sites, some of which investors have already purchased.
Because I spent all of yesterday at the Ohio Marijuana Policy Reform Symposium talking about this Taskforce report, I am not going to add extra commentary here yet (though lots will follow before too long at Marijuana Law, Policy and Reform). But I am hopeful that the report can help advance public information and understanding as the debate over marijuana reform heats up in Ohio and nationwide in the months ahead. Indeed, a letter from the Chair of the Taskforce, Hamilton County Prosecutor Joe Deters, stresses this point at the front of the document:
The question of changing Ohio’s approach to marijuana policy may soon be put before voters -- most likely on the November 2015 ballot. The rapid pace of change in marijuana policy across the country, however, has made it difficult to keep up with the experiences, research, and practices occurring in different states. Political arguments from all sides of this debate have made it even more challenging to separate fact from opinion....
Ohio cannot afford to make decisions about marijuana policy and law based on unsubstantiated and often unsupported talk on both sides of the issue. Ohioans need and deserve an honest and in-depth assessment of the positive and negative impacts that ending marijuana prohibition may have, so they can make up their own minds....
I look forward to continuing this important discussion throughout Ohio in the coming weeks and months.
"'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics"
The title of this post is the title of this notable new paper authored by Ira Mark Ellman and Tara Ellman recently posted on SSRN. Here is the abstract:
This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case.
The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.
June 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
Thursday, June 11, 2015
Nebraska sheriffs vote unanimously to support effort to resuscitate state's death penalty
As reported in this local article, headlined "Nebraska sheriffs group backs petition efforts to reinstate death penalty," a notable group of law enforcement officials have made a notable statement about death penalty reforms in Nebraska. Here are the details:
The Nebraska Sheriffs’ Association has voted unanimously to back a petition aimed at restoring the death penalty. The group met on Wednesday morning in Grand Island at the Nebraska Law Enforcement Training Center.
“It’s important because of the public safety issue,” said Grant County Sheriff Shawn Hebbert, who is president of the sheriffs’ association. “The death penalty works as a deterrent to protect our guards and our people who work in corrections, as well as our deputies,” he said.
More than 30 sheriffs from across Nebraska attended the association meeting on Wednesday. They were strongly against the Legislature’s 32-15 vote on LB268, which repealed the death penalty. Gov. Pete Ricketts vetoed LB268, but the Legislature countered with a 30-19 vote to override the veto.
That action is contrary to the beliefs of the majority of Nebraskans, the sheriffs said. “It’s been unanimous across the state ... that we need to keep the death penalty, and I think that shows the strength of our organization and the backing and support we have in the organization that we have to protect the public,” Hebbert said on Wednesday.
Not only did the association members support backing the petition drive led by Nebraskans for the Death Penalty, but Hebbert said many of the sheriffs in attendance will be carrying the petitions in their home counties. Pierce County Sheriff Rick Eberhardt said a lot of people outside the state lobbied to “impose their will on the state of Nebraska.” The petition is Nebraskans’ opportunity to take that back.
“What’s really sad is that most people are working, taking care of their kids, and they don’t want to have to pay $50,000 a year per head for ... guys on death row for 30 to 40 years,” he said. “That’s a lot of money, a lot of college educations, a lot of trips to the hospital, pay off a mortgage.” The death penalty repeal lets criminals sit around watching TV, getting “three hots and a cot,” Eberhardt said. “Guys in Afghanistan don’t have it that good.
“They get free legal, free medical and free room and board for the rest of their lives,” he said. “Is it really free? Absolutely not — I’m paying for it. My kids are going to be paying for it. My grandkids are going to be paying for those guys.”...
The petition drive would need about 58,000 valid signatures to place the death penalty on the November 2016 general election ballot. It needs about 115,000 signatures by August to keep the Legislature’s repeal of the death penalty from going into effect.
“The initial goal is to get enough signatures to keep the law, the repeal, from going into effect, and the secondary goal is to turn it over to a vote of the people,” Hebbert said.
Although not all 93 Nebraska counties were represented at the sheriffs’ association meeting, Hebbert said the vote itself by the association’s executive board was representative. “As president of the sheriffs’ association, I’ve been in contact with most of the sheriffs across the state, and I haven’t heard anybody who is not for this petition drive and turning this over to a vote of the people,” Hebbert said. “I have not talked to any sheriff who is not for the death penalty.”
In part because I am a very big fan of direct democracy and in part because I think political campaigns focused on the death penalty often do a pretty good job of informing the citizenry about all the complicated and controversial realities that surround death penalty administration, I am strongly rooting for the folks in Nebraska troubled by the recent legislative repeal of capital punishment to succeed in bringing this issue before the voters. Indeed, the mere fact that a serious effort is being made to get this issue before the voters has already helped make Nebraska a much more interesting and important death penalty state than it has ever been in the past, and these Cornhusker stories should be especially interesting to watch for both pro- and anti-death penalty advocates in the months ahead.
Recent related posts:
- Nebraska legislature votes by large margin to repeal state's death penalty
- Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
- Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
- Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
Charles Samuels, head of Federal Bureau of Prisons, announces plans to retire
As reported on this webpage for the Federal Bureau of Prisons, late last week "Director Charles E. Samuels, Jr. announced his plans to retire before the end of the year." Here is an excerpts from the letter he sent to communicate his plans to staff:
I am incredibly proud of the things we have accomplished working together during my tenure to continue the tradition of meeting our mission and maintaining correctional excellence to protect the American public. I offer many thanks and appreciation to all staff.
During the past 3-1/2 years we emphasized and enhanced staff safety, promoted partnership between labor and management throughout the entire agency, signed a Collective Bargaining Agreement, established an annual Diversity and Inclusion day to recognize the importance of all staff, established the Inmate Model Programs Catalog and increased evidenced-based reentry programs, including specialized programs for female offenders. We also modified the Residential Release Center Statement of Work to ensure the delivery of Bureau approved evidenced-based cognitive behavioral therapy programs, successfully implemented Prison Rape Elimination Act standards, expanded the Reduction in Sentence (compassionate release) criteria, requested an independent assessment and review of the Bureau's restrictive housing policies and procedures, established reintegration and mental health units, increased our repatriation efforts to support Federal Prison Industries, and ensured transparency with our stakeholders and the media, managed our institutions at near record levels of crowding and contributed to record declines in our population for the first time in 34 years. As a result of our combined efforts, rates of assaults dropped as low as they have been in decades. In addition, we extended our work beyond the prison walls to collaborate with representatives in the communities to which inmates are returning and to strengthen families through meaningful inmate visitation with children.
I joined this agency as a correctional officer, determined to make a positive difference; I leave knowing that there are thousands of dedicated and hardworking staff who are equally committed to the same goal. As I have repeated time and again, staff are the Bureau of Prisons, and there are no better staff, anywhere. I cannot adequately express my thanks to all of you for the incredible work you do every second, minute, and hour each and every day to protect and support one another, the inmates in our custody, and the American people. Your jobs are not easy, and you rarely get the recognition you greatly deserve. You carry out our mission with integrity and professionalism, while risking your lives every time you walk through the Sallyports of our 121 prisons around the country.
Wednesday, June 10, 2015
"Invisible Women: Mass Incarceration's Forgotten Casualties"
The title of this post is the title of this notable new paper authored by Michele Goodwin now available on SSRN. Here is the abstract:
This Essay fills an important gap in social and legal policy literature, addressing the intersection of sex and mass incarceration as a serious blind spot in legal analysis. It considers two works, James B. Jacobs’ The Eternal Criminal Record, and Alice Goffman’s On The Run to make important contributions to the literature. Among its claims, it argues that Black lives should matter to human research.
In Part I, it critiques Goffman’s book as fitting within a paradigm that pays too little attention to ethical standards and moral considerations involving Black human research subjects. This is particularly relevant in light of Goffman’s hunger for one of her primary research subject’s “killer to die.” It argues that cognitive bias — perceiving poor, African American human subjects as already marginal, blinds researchers to appreciating the harms in which they may expose their subjects. Part II turns to the missing narrative of women and mass incarceration in the U.S. It sheds light on and analyzes the complex patterns that frame women’s subjugation to law enforcement — issues absent in On The Run. Part III analyzes the extra-legal and collateral consequences of policing women, including felony disenfranchisement, loss of housing, and the chilling impacts on their children. It unpacks, what Professor James Jacobs terms, the eternal criminal record, and teases out findings in his compelling new book of the same name.
"American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime"
The title of this post is the title of this intriguing new paper authored by Mark Fondacaro and Megan O'Toole now available via SSRN. Here is the abstract:
A recent National Academy of Sciences Report explored the drivers of the fourfold increase in incarceration rates in the United States and provided a firm recommendation for significant reduction in incarceration rates. Policy makers representing the entire political spectrum are now publicly airing their views on the need for reform. Although public sentiment is generally favorably disposed toward reform in the abstract, when confronted with specific examples of crime, they tend to favor more punitive, retributive responses to crime. Retributive justifications for punishment that are deeply ingrained in our culture and our legal system as well as our biological and psychological make-up are a major impediment to constructive reform efforts.
However, recent advances in research across neurobiological, psychological, and social levels of analysis suggest that following our retributive impulses to guide legal decision making and criminal justice policy is not only costly and ineffective in reducing crime, but unjust and increasingly difficult to justify morally. This article will draw on a body of research anchored in social ecological models of human behavior to argue for more forward-looking, consequentialist responses to crime that aim at the individual prevention of criminal behavior in the least restrictive and most cost effective manner at both the front- and back-ends of our criminal justice system.
Should bail reform be a key component of sentencing reform efforts?
Ever the sentencing obsessive, I tend to not focus too much attention on various aspects of criminal procedure that impact case processing before a defendant is formally convicted. But this new New York Times article, headlined "When Bail Is Out of Defendant’s Reach, Other Costs Mount," provides a useful reminder of the significant role that bail prolicies and procedures have on all other aspects of criminal case processing. Here is the start of the lengthy piece, with one particularly important line highlighted:
Dominick Torrence, who has lived in this city all his life, has a long rap sheet for dealing drugs but no history of violence. So when he was charged with disorderly conduct and rioting on April 28, a night of unrest after Freddie Gray was fatally injured in police custody, he was shocked to learn the amount he would need to make bail: $250,000, the same amount as two of the officers facing charges over Mr. Gray’s death.
Although a bail bondsman would charge only a fraction of that, normally 10 percent, for many defendants $25,000 is as impossible a sum as $250,000. “That’s something you get for murder or attempted murder,” Mr. Torrence, 29, said from Baltimore Central Booking. “You’re telling me I have to take food out of my kid’s mouth so I can get out of jail.”
He spent a month in jail on charges that would later be dropped. Defense lawyers, scholars and even some judges say the high bail amounts set for some Baltimore protesters highlight a much broader problem with the nation’s moneybased bail system. They say that system routinely punishes poor defendants before they get their day in court, often keeping them incarcerated for longer than if they had been convicted right away. “It sets up a system where first there’s the punishment, and then there’s the opportunity to go to court for trial,” said Paul DeWolfe, the Maryland state public defender.
Though money bail is firmly entrenched in the vast majority of jurisdictions, the practice is coming under new scrutiny in the face of recent research that questions its effectiveness, rising concerns about racial and income disparities in local courts, and a bipartisan effort to reduce the reliance on incarceration nationwide.
Colorado and New Jersey recently voted to revamp their bail systems, while in New Mexico last November, the State Supreme Court struck down a high bail it said had been set for the sole purpose of detaining the defendant. This year, the Department of Justice weighed in on a civil rights lawsuit challenging bail amounts based on solely on the charge, calling them unconstitutional. In several states, including Connecticut, New York and Arizona, chief justices or politicians are calling for overhauls of the bail system.
The money bail system is supposed to curb the risk of flight by requiring defendants to post bond in exchange for freedom before trial. But critics say the system allows defendants with money to go free even if they are dangerous, while keeping low-risk poor people in jail unnecessarily and at great cost to taxpayers.
For those who cannot afford to post bail, even a short stay in jail can quickly unravel lives and families. Criminal defendants are overwhelmingly poor, many living paycheck to paycheck, and detention can cause job losses and evictions. Parents can lose custody of their children and may have a difficult time regaining it, even when cases are ultimately dropped. And people in jail who are not guilty routinely accept plea deals simply to gain their freedom, leaving them with permanent criminal records.
The United States leads the world in the number of pretrial detainees, according to a report by the National Institute of Corrections, an agency of the Department of Justice. An estimated half a million people are in the country’s jails on any given day because they cannot make bail. And even bail amounts much lower than those routinely seen in Baltimore can be prohibitive.
The sentence I have emphasized above surely correct based on anecdotal accounts from defendants and defense attorneys, but I would be especially interested to know if any serious and rigorous empirical work has been done to assess just how many non-guilty defendants (and/or defendants who could raise reasonable defenses at a trial) may take plea deals because they could not make bail and because a public defender tells the defendant they would necessarily serve a lot longer while awaiting trial AND face an even more sentence if they end up convicted after a trial. In turn, especially because even low-level criminal history can lead to significant sentencing enhancements in any future case, these bail issues and consequences may ripple through modern sentencing systems in a number of ways.
Tuesday, June 09, 2015
"Support for the Death Penalty May Be Linked to Belief in Pure Evil"
The title of this post is the headline of this interesting new Smithsonian article, and here are excerpts:
The reasons behind someone's sense of a just punishment are varied and murky, with a swell of psychological research pointing toward responses to race, sexuality and other hot-button issues. But according to recent research, another fundamental factor may be at play: whether someone believes in the existence of pure evil. A new study by psychologists Russell Webster and Donald Saucier confirms a rising correlation between an individual’s belief in pure evil and their support for harsher punishments, no matter the lifestyle or outward characteristics of the confessed criminal.
“At the extreme levels of criminal perpetration, people who believe in pure evil might not be looking for a situational factor that may have been at play there,” says Saucier, associate professor of psychological sciences at Kansas State University. “They’ll just say, ‘You know what? That person did something horrible, which makes that person evil. They are a demon, and we need to get rid of them.’”
Previous studies showed that stereotypically evil traits increase a perpetrator’s demonization in the eyes of their peers. Recently published in the journal Psychology and Individual Differences, the latest work also assesses specific recommendations for punishing a criminal, “given that the public often has a crucial role in recommending punishment via conventional criminal justice systems,” write authors Webster and Saucier in their paper.
“We were interested in how people thinking about the nature of humanity would impact how they treat them, to boil it down to a nutshell,” Saucier says. “So if you thought that there was a possibility for pure good in other people, what would that look like? And if there was a possibility for pure evil in people, what would that look like?”
The study’s 212 participants — all of them general psychology students at Kansas State University — were first asked to complete a survey determining the extent to which, on a continuum, they believed pure evil already existed in the world. The authors differentiated “pure evil” from behavioral scientists’ typical definition of evil, which centers on unprovoked and intentional harm, Webster says, by adding an emphasis on the sadistic motivations of the wrongdoer. The influence of religion on belief in pure evil wasn’t explored in this study.
Participants were then asked to read a supposedly real newspaper article printed in the Kansas City Star detailing a local murder. In one version of the article, the criminal was assigned stereotypically evil traits, such as an interest in the occult, donning all-black attire and taunting children. In the other version, the criminal was assigned milder traits, like an interest in camping and a focus on family life. In both versions, the criminal confessed to the murder.
The authors assessed the participants’ reaction to the crime using a common tool for measuring attitudes called the Likert-type scale, focusing specifically on how much they demonized the wrongdoer and their feelings of retribution. Finally, the authors questioned participants on their support for jail time, eligibility for parole and the death penalty. To control for the variability in participants’ knowledge of the criminal justice system, all pertinent terms were defined.
“What we basically found is that as they believe more in pure evil, they’re more likely to support things like the death penalty, but it went through mechanisms like thinking the person was a demon and feeling the need to have retribution on them,” Saucier says. “So we were kind of looking at what connects the belief to the outcome.”
But while participants generally recommended tougher sentences for the stereotypically evil perpetrator, greater belief in pure evil alone predicted whether someone demonized the criminal and called for harsher punishment, regardless of the murderer's character traits. “If they believed in pure evil, it didn't matter the characteristics. They were more likely to support the death penalty or life in prison," says Saucier. "The belief in pure evil overrode our stereotypically evil person."
You be the federal defense attorney: would you urge Dennis Hastert to cut a plea deal?
I often highlight and review high-profile cases by urging readers to place themselves in the shoes of a judge facing a tough sentencing decision or a prosecutor having to recommend a specific sentence. But, as the title of this post connotes, now I am urging folks to think about how the attorneys for former House Speaker Dennis Hastert ought to approach (sentencing?) discussions with their client and their adversaries. This lengthy Politico account of the Hastert charges and proceedings by Josh Gerstein provides all the needed background and includes these excerpts:
After more than a week in seclusion, former House Speaker Dennis Hastert pleaded not guilty Tuesday to two criminal charges that he violated federal banking law and lied to the FBI as they investigated his alleged agreement to pay $3.5 million in hush money to cover up a past transgression.
Hastert, who became the longest-serving Republican speaker before the GOP lost the House in 2006, was released after entering the plea in front of U.S. District Judge Thomas Durkin at an afternoon hearing which raised questions about whether Durkin will continue or the case will be reassigned to another judge.
Hastert, 73, looked much as he did during the height of his power, slightly stooped and with a shock of gray hair as he trudged into the packed courtroom clad in a dark pinstripe suit and blue tie. He stood in front of the judge’s bench throughout the roughly 15-minute hearing, softly answering the judge’s questions — usually with a “Yes, sir.”
Hastert’s lead defense attorney, Tom Green, spoke for the former speaker when it came time to offer a plea. “The defendant enters a plea of not guilty to both counts of the indictment, your honor,” Green said....
At Tuesday’s hearing, the defense waived a formal reading of the indictment, which alleges Hastert agreed to pay $3.5 million to an unnamed individual and forked over $1.7 million of that before the charges were filed. Nearly $1 million of that was withdrawn from the former speaker’s bank accounts in increments of $10,000 after bankers warned him that larger donations would trigger reports to the authorities, the indictment claims.
Prosecutors said little during the session, but when the judge asked for details of the potential penalties, Block noted Hastert could face up to five years in prison and a $250,000 fine on each of the two felony counts. However, judges usually impose sentences in accordance with federal guidelines that call for more lenient punishment for offenders with no serious criminal record.
A plea deal, if there were to be one, could also reduce Hastert’s sentence. Many criminal defense lawyers believe such a deal is probable because a jury is not likely to look favorably on a defendant trying to cover up alleged sexual abuse of a student.
One of the charges brought against Hastert — structuring cash transactions to avoid federal reporting requirements — is unpopular among defense lawyers and libertarians because it can render routine cash banking transactions in increments of just under $10,000 illegal even if the reason for the cash payments or withdrawals is lawful. Critics contend that prosecutors use the structuring law to bring charges or force guilty pleas from defendants when the government lacks proof to make a case for drug trafficking or tax evasion. Some judges have reacted skeptically when the feds have brought cases in which there is no charge that the underlying conduct was illegal.
The nature of Hastert’s reported relationship with the acquaintance who allegedly received the hush money is unclear, but experts say the statute of limitations in Illinois for a criminal prosecution on sexual abuse from the 1970s expired long ago.
Hastert, who as speaker was once second in line to the presidency, resigned his House seat in 2007 after he lost the speaker’s post due to the Democrats’ victory in 2006. He is the highest-ranking current or former federal official to face criminal prosecution since Vice President Spiro Agnew resigned in 1973 and pleaded guilty to a felony tax evasion charge.
Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dsyfunctional death penalty
This local article, headlined "House panel voices disapproval of Wolf's death penalty stance," reports that some Pennsylania legislators are finally motivated to do something about the state's dysfunctional capital punishment system. Unfortunately, they only seem motivated so far to make an inconsequential political statement rather than actual try to fix the state's broken system. Here are the basics:
The House Judiciary Committee overwhelmingly approved a resolution that is intended to send a message to Gov. Tom Wolf that it strongly disapproves of the reprieves he has granted that delayed the execution of two convicted murderers. The resolution, approved by a bi-partisan 19-8 vote on Monday, now goes to the full House for consideration, which could occur as soon as Wednesday.
Wolf in February signed an executive order imposing a moratorium on carrying out the death penalty until he has had time to study a Senate-commissioned Pennsylvania Task Force and Advisory Committee on Capital Punishment and its recommendations are satisfactorily addressed. That study is due out later this year.
The executive order so far has resulted in reprieves being granted to Terrence Williams, who was convicted of two murders as a teen-ager in 1984, and Hubert Michael, who was convicted of killing 16-year-old Trista Eng in 1993. Both death row inmates have exhausted their appeals.
The resolution, if approved by the House, would do nothing to change those reprieves, but rather states that the House believes those actions by Wolf are unconstitutional.
"This is about whether or not the laws of Pennsylvania will be carried out. The governor has said he wants to study capital punishment. It does not give him the right to ignore existing laws," said Rep. Mike Vereb, R-Montgomery, a death penalty proponent who sponsored the resolution. Following the House Judiciary Committee's approval of a resolution condemning Gov. Tom Wolf's temporary moratorium on executions, Vereb explains he and the governor are of different minds on the subject of the death penalty. Vereb said justice delayed is justice denied to victims....
Rep. Brandon Neuman, D-Washington, ... said Vereb's concerns would be more appropriately expressed in an amicus brief to the pending lawsuit filed by Philadelphia District Attorney Seth Williams that is before the state Supreme Court over this issue. "This is a matter that I believe needs to be handled and is being handled in the judiciary branch," Neuman said....
Committee Chairman Ron Marsico, R-Lower Paxton Twp., read a letter from Eng's family sent to the governor last week. In it, the family of the York County murder victim stated, "You stand in the way of thousands of victims who seek justice." Marsico added, "We owe it to the victims to pass this resolution."
I generally agree with the basic sentiment that justice delayed is justice denied, but that very sentiment makes me wish that the Pennsylvania legislature would do more to addresss death penalty administration than just pass resolutions. As noted here, even before Gov Wolf's moratorium, the Keystone State had not carried out an execution in more than 15 years and "according to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions."
In light of this ugly legal history, nearly all of which pre-dates Gov Wolf's election, I think the Pennslyvania House owes a lot more to victims than just passing a seemingly inconsequential resolution. Any and all serious proponents of the death penalty in the Pennsylvania legislature should feel duty-bound to conduct the hard work involved in fixing and making operational a broken capital system. But, because politic rhetoric so often matters more than policy fixes, I fear justice delayed and justice denied will remain the Keystone capital characteristic.
Monday, June 08, 2015
Can any significant federal prison sentence truly be "reasonable" for any of the Kettle Falls Five marijuana defendants?
The question in the title of this post is a serious question I have in light of the remarkable federal marijuana prosecution that reaches sentencing in Washington state later this week. The case involves the so-called "Kettle Falls Five," a group of medical marijuana patients subject (somewhat mysteriously) to aggressive federal criminal prosecution. Regular readers may recall prior posts about the case; this new lengthy Jacob Sullum Forbes piece, headlined "In A State Where Marijuana Is Legal, Three Patients Await Sentencing For Growing Their Own Medicine," provides this review and update:
During their trial at the federal courthouse in Spokane last March, Rhonda Firestack-Harvey and her two fellow defendants—her son, Rolland Gregg, and his wife, Michelle Gregg—were not allowed to explain why they were openly growing marijuana on a plot in rural northeastern Washington marked by a big green cross that was visible from the air. According to a pretrial ruling, it was irrelevant that they were using marijuana for medical purposes, as permitted by state law, since federal law recognizes no legitimate use for the plant. But now that Firestack-Harvey and the Greggs have been convicted, they are free to talk about their motivation, and it might even make a difference when they are sentenced next Thursday.
Federal drug agents raided the marijuana garden, which was located outside Firestack-Harvey’s home near Kettle Falls, in 2012. In addition to the three defendants who are scheduled to be sentenced next week, the U.S. Attorney’s Office for the Eastern District of Washington charged Firestack-Harvey’s husband, Larry Harvey, and a family friend, Jason Zucker. Dubbed the Kettle Falls Five, all had doctor’s letters recommending marijuana for treatment of various conditions, including gout, anorexia, rheumatoid arthritis, degenerative disc disease, and chronic pain from a broken back. Last February prosecutors dropped the charges against Harvey because he has terminal cancer. Zucker, who had a prior marijuana conviction, pleaded guilty just before the trial and agreed to testify against the other defendants in exchange for a 16-month sentence, which was much shorter than the 15-year term he could have received in light of his criminal history....
In the end, after hearing testimony for five days and deliberating for one, the jurors acquitted the defendants of almost all the charges against them, which could have sent them to prison for 10 years or more. “They all saw what was going on,” Telfeyan says. “They understood what the facts were, and they came back with a verdict exactly consistent with what actually happened, which was just a family growing medical marijuana for their own personal use.”
The jury rejected allegations that the defendants distributed marijuana and conspired to do so, that they grew more than 100 plants (the cutoff for a five-year mandatory minimum) over the course of two years, that they used firearms (the Harveys’ hunting guns) in connection with a drug crime (another five-year mandatory minimum), and that Firestack-Harvey maintained a place (i.e., the home she shared with her husband) for the purpose of manufacturing and distributing marijuana. The one remaining charge — cultivation of more than 50 but fewer than 100 plants — does not carry a mandatory minimum penalty, which gives Rice broad discretion when he sentences Firestack-Harvey and the Greggs next Thursday. He can even consider the reason they were growing marijuana.
“But for state-sanctioned medical prescriptions authorizing each member of the family to grow 15 marijuana plants, this family would not be before the Court today,” the defense says in a sentencing memo filed last week [available here]. “Due to the exemplary contributions each family member has made to this society, their lack of criminal records, and the unique role state-sanctioned medical authorizations played in this case, Defendants respectfully seek a probationary sentence with no incarceration.”
The federal probation office recommended sentences of 15 to 21 months, while the prosecution is seeking 41 to 51 months [gov sentencing memo here], based mainly on allegations that were rejected by the jury, including cultivation in 2011 as well as 2012. To give you a sense of how realistic the government’s assumptions are, it estimates that each plant grown in 2011 produced more than a kilogram of marijuana. As the defense notes, that figure “flies in the face of both empirical reality and legal precedent,” since “numerous courts have recognized that a marijuana plant cannot yield anywhere near 1 kilogram of usable marijuana.” At one point in its sentencing memo, the prosecution even claims the defendants somehow managed to produce “1000 kilograms per plant.” I assume that’s a typo, but who knows? The government also thinks the 2012 harvest should be measured by the weight of the plants, including leaves, stems, water, and clinging dirt.
The prosecution’s insistence that Firestack-Harvey and the Greggs deserve to spend at least three and a half years in prison is puzzling, as is its willingness to posit super-productive, science fictional marijuana plants in service of that goal. But this case has been a puzzle from the beginning.
I assume that this federal prosecution started because federal authorities thought the defendants here were doing a whole lot more than what the feds were able to prove in court. For that reason, I can sort of understand why the feds started this prosecution way back in early 2012. But now, three years later, with the defendants acquitted on most charges (and now with lots of persons selling lots of recreational marijuana within the state), I have a very hard time understanding just how the feds can think a lengthy prison sentence is "not greater than necessary" for these defendants in light of the nature and circumstances of the offense and the history and characteristics of these defendants.
I have in the excerpt above links to the parties' sentencing briefs, and I sincerely seek input on the question in the title of this post in light of some of the arguments made thereing. Notably, the government's sentencing memo is only focused on dickering over the applicable guideline range; it does not appear to make any formal arguments for a signficant prison sentence in light of all the 3553(a) sentencing factos that judges now must consider after Booker. So I suppose it is still possible that even the government will, come the actual sentencing later this week, acknowledge that this remarkable case does not justify any significant federal prison sentence for any of the defendants with no criminal history. But if the government seeks a prison term, and if the judge imposes a prison term, I would be ready and eager to argue on appeal for these defendants that such a punishment cannot possibly be reasonable in light of all the sentencing commands Congress put into 3553(a).
Prior related posts:
- Family of medical marijuana patients in Washington turn down plea and set up notable federal trial
- New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution
- Three of "Kettle Falls Five" convicted on least serious federal marijuana charges in Washington
June 8, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)
SCOTUS grants cert on a federal case concerning restraining assets for hiring defense counsel and denies cert in notable gun case
The Supreme Court started its work this morning with this order list that include a grant of certiorari in one federal criminal case, Luis v. US. This SCOTUSblog page provides this account of the issue the case presents:
Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.
In addition, at the end of the orders list, the Justices denied cert in a gun case from San Francisco, which prompted a lengthy dissent by Justice Thomas (joined by Justice Scalia). Here is how that dissent begins:
“Self-defense is a basic right” and “the central component” of the Second Amendment’s guarantee of an individual’s right to keep and bear arms. McDonald v. Chicago, 561 U. S. 742, 767 (2010) (emphasis deleted). Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it “ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of selfdefense.” District of Columbia v. Heller, 554 U. S. 570, 630 (2008). Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.
As I have noted in lots of prior posts in the wake of the Heller and McDonald rulings, if it is really true that "Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document," a lot of laws criminalizing and severely punishing mere gun possession by those with a distant criminal past might be constitutionally suspect. But this dissent from Justice Thomas, which garnered only one additional Justice, confirms my belief that the majority of the Supreme Court does not really agree that the Second Amendment works just like most other rights protected by the Constitution.
Extended profile of judge strugging with extended mandatory minimum federal drug sentences
The Washington Post has this lengthy article discussing the sentencing struggles of US District Judge Mark Bennett. The piece is headlined "Against his better judgment: In the meth corridor of Iowa, a federal judge comes face to face with the reality of congressionally mandated sentencing." Here are excerpts from the first part of the piece:
U.S. District Judge Mark Bennett entered and everyone stood. He sat and then they sat. “Another hard one,” he said, and the room fell silent. He was one of 670 federal district judges in the United States, appointed for life by a president and confirmed by the Senate, and he had taken an oath to “administer justice” in each case he heard. Now he read the sentencing documents at his bench and punched numbers into an oversize calculator. When he finally looked up, he raised his hands together in the air as if his wrists were handcuffed, and then he repeated the conclusion that had come to define so much about his career.
“My hands are tied on your sentence,” he said. “I’m sorry. This isn’t up to me.”
How many times had he issued judgments that were not his own? How often had he apologized to defendants who had come to apologize to him? For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses. Those mandatory penalties, many of which require at least a decade in prison for drug offenses, took discretion away from judges and fueled an unprecedented rise in prison populations, from 24,000 federal inmates in 1980 to more than 208,000 last year. Half of those inmates are nonviolent drug offenders. Federal prisons are overcrowded by 37 percent. The Justice Department recently called mass imprisonment a “budgetary nightmare” and a “growing and historic crisis.”
Politicians as disparate as President Obama and Sen. Rand Paul (R-Ky.) are pushing new legislation in Congress to weaken mandatory minimums, but neither has persuaded Sen. Charles E. Grassley (R-Iowa), who chairs the Senate Judiciary Committee that is responsible for holding initial votes on sentencing laws. Even as Obama has begun granting clemency to a small number of drug offenders, calling their sentences “outdated,” Grassley continues to credit strict sentencing with helping reduce violent crime by half in the past 25 years, and he has denounced the new proposals in a succession of speeches to Congress. “Mandatory minimum sentences play a vital role,” he told Congress again last month.
But back in Grassley’s home state, in Iowa’s busiest federal court, the judge who has handed down so many of those sentences has concluded something else about the legacy of his work. “Unjust and ineffective,” he wrote in one sentencing opinion. “Gut-wrenching,” he wrote in another. “Prisons filled, families divided, communities devastated,” he wrote in a third.
And now it was another Tuesday in Sioux City — five hearings listed on his docket, five more nonviolent offenders whose cases involved mandatory minimums of anywhere from five to 20 years without the possibility of release. Here in the methamphetamine corridor of middle America, Bennett averaged seven times as many cases each year as a federal judge in New York City or Washington. He had sentenced two convicted murderers to death and several drug cartel bosses to life in prison, but many of his defendants were addicts who had become middling dealers, people who sometimes sounded to him less like perpetrators than victims in the case reports now piled high on his bench. “History of family addiction.” “Mild mental retardation.” “PTSD after suffering multiple rapes.” “Victim of sexual abuse.” “Temporarily homeless.” “Heavy user since age 14.”
Bennett tried to forget the details of each case as soon as he issued a sentence. “You either drain the bathtub, or the guilt and sadness just overwhelms you,” he said once, in his chambers, but what he couldn’t forget was the total, more than 1,100 nonviolent offenders and counting to whom he had given mandatory minimum sentences he often considered unjust. That meant more than $200 million in taxpayer money he thought had been misspent. It meant a generation of rural Iowa drug addicts he had institutionalized. So he had begun traveling to dozens of prisons across the country to visit people he had sentenced, answering their legal questions and accompanying them to drug treatment classes, because if he couldn’t always fulfill his intention of justice from the bench, then at least he could offer empathy. He could look at defendants during their sentencing hearings and give them the dignity of saying exactly what he thought.
“Congress has tied my hands,” he told one defendant now. “We are just going to be warehousing you,” he told another. “I have to uphold the law whether I agree with it or not,” he said a few minutes later.
"Does failed execution attempt mean Ohio prisoner can avoid death penalty?"
The question in the title of this post is both the headline of this Columbus Dispatch article and the notable novel constitutional question facing the Ohio Supreme Court this week. Here is the backstory:
Ohio’s unusual pending death-penalty case, involving an inmate the state already tried but failed to execute, will be argued on Tuesday before the Ohio Supreme Court. Attorneys for Romell Broom contend that the state would be guilty of unconstitutional double jeopardy if it tries to execute him a second time. They said in a court filing that the state’s contention that their client didn’t suffer physically during a botched execution on Sept. 15, 2009, “ignores the unnecessary psychological suffering Broom endured during two hours of lawless chaos."
Representatives for Attorney General Mike DeWine counter that what happened on Sept. 15, 2009, wasn’t a failed execution but a breakdown in the lethal-injection process, and a new execution should proceed. They argue that the U.S. Constitution doesn’t promise that executions will be pain-free and that what happened to Broom wasn’t unconstitutional “cruel and usual punishment.”
The attempted execution of Broom, 59, on Sept. 15, 2009, was called off by Gov. Ted Strickland after a prison medical team spent two tense hours unsuccessfully trying to attach IV lines for lethal injection. The execution was rescheduled but never took place because Broom’s public defender attorneys filed numerous appeals.
Broom was convicted and sentenced to death for abducting, raping and stabbing to death 14-year-old Tryna Middleton of Cleveland as she walked home from a football game on Sept. 21, 1984. All evidence in the case, including DNA test results, showed Broom was the girl’s killer.
Thus, the failed execution, and not Broom’s guilt or innocence, will be the focus of oral arguments at 9 a.m. on Tuesday before the Ohio Supreme Court. Broom’s case is unique in Ohio’s modern capital-punishment history, being one of only two known cases nationally in which an execution was halted after it began. The other one was Willie Francis, a 17-year-old killer who died on the second try in Louisiana’s electric chair on May 9, 1947, having survived a botched execution a year earlier.
Sunday, June 07, 2015
"Expunging America's Rap Sheet in the Information Age"
The title of this post is the title of this notable new paper by Jenny Roberts now available via SSRN. Here is the abstract:
As the Wall Street Journal recently put it, “America has a rap sheet.” Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line. At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life. The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.
States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered. The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age. Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record. The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.
This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.
Saturday, June 06, 2015
"Ditch the Geezer Judges" ... and consider RoboJudges?
The title of this post is the headline of this provocative new OZY commentary authored by Shannon Sims. Here are excerpts:
Nobody said life is fair, but here’s a fair question: Why are so many judges so old? Here’s another: Should they be?
Conventional wisdom has it that wielding the gavel takes years upon years of lawyerly practice. Judging by that standard, the U.S. federal bench must be very effective, indeed: About 12 percent of the nation’s 1,200 federal judges are 80 or older, according to a 2010 survey by ProPublica. Eleven were over the age of 90, almost three times as many 20 years before. Other things that happened over those 20 years: the Internet. Plus smartphones, Twitter, Facebook, hacking, legal weed, etc., etc., etc. Plus dementia and senility, for some. On issues of the day, like privacy or hacking, can older judges possibly keep up?
Unsurprisingly, the judges themselves have excellent arguments why age rules. Richard Posner, a relatively spry 76, argues that it has to do with the American common law system, which is based on precedent: “The more a judicial system adheres to stare decisis (precedent), the older its judges will be on average,” he writes in his book Aging and Old Age. Judge Posner may well be right — we don’t much want to get into an argument with a man who’s been throwing down from the 7th Circuit since we were a fetus — but we must point out another, far more prosaic reason our federal judiciary is so old: Federal judges have lifetime tenure. And in jurisdictions where judges face mandatory retirement at, say, 70, they’ve mounted campaigns to raise the limit to 80, citing their experience and a huge case backlog.
But why not have younger judges fill the gap? For years, in jurisdictions from India to France to Brazil, you could go straight from law school to a judgeship. Pass the judge test? You’re in. In Brazil, for example, meeting a 20-something judge in the streets at Carnaval is still not particularly remarkable. We couldn’t say the same for most of our bench, save for, of course, the Notorious R.B.G. It’s true that in civil law countries, judges need not have years of experience in case law to draw an informed decision — they just consult the legal code. But even so, it’s worth remembering that even in our common-law system, clerks — recently graduated from law school — draft opinions. Why wouldn’t a few years of such intensive training compensate for the absence of life years?
Would younger judges be better? Emanuel Bonfim, a Brazilian magistrate judge, says young blood “oxygenizes the system and lends a multigenerational dynamism to the judiciary.” He should know: He became a judge at just 23. Today, he’s the president of the association of magistrate judges of the state of Pernambuco at 46, an age that he points out “would only mark the beginning of a judicial career in the U.S.” In countries dogged by corruption like Brazil, young judges might offer another benefit: Ostensibly, they’re more independent.
I have now updated the title of this post based on another provocative new OZY commentary, this one authored by Sean Braswell and headlined "All Rise for Chief Justice Robot!" Here are excerpts:
[W]ith the Supreme Court about to issue its long-awaited decisions on gay marriage and Obamacare, the question is, will we be rising for Judge Robot, instead of Justice Roberts, someday? After all, if being an appellate judge, as Roberts suggests, is really just a matter of calling balls and strikes — interpreting a statute, reasoning from precedent, or applying the law in a limited, mechanical fashion — then the gig looks increasingly ripe for automation, something that could be performed better by a computer, and without political or personal bias, age or infirmity, or ugly confirmation battles. Other professions, from factory workers to stockbrokers, have learned that the better the world gets at simulating the outcome of your labors, the more redundant you start to appear. Could the nation’s highest court, along with any appellate court charged with reviewing the application of the law instead of determining the facts, be fairer and more faithful to our founders if a modern-day version of HAL were striking the gavel?...
[W]hat Roberts’ umpire metaphor and other confirmation performances really appeal to is the public’s fear of bias — a desire to constrain judicial discretion and ensure neutrality as far as possible. Thomas Jefferson himself shared this fear; he advocated ending “the eccentric impulses of whimsical, capricious designing man” and letting “the judge be a mere machine.”...
Whatever your constitutional philosophy, Justice Robot offers the promise of justice that is truly blind, that objectively applies the law equally to all citizens without error, bias or ideology. And yet, the question lingers. Even if we are capable of building a judge that is, in Jefferson’s words, a “mere machine,” do we really want to?
How has, can, should and will marijuana reform impact the work of defense attorneys?
The question in the title of this post is the central topic of a presentation I am honored to be giving today at the Cuyahoga Criminal Defense Lawyers Association's annual meeting.
As is often true when I speak to a group of experienced defense attorneys, I expect I will learn more from the assembled participants than I am likely to teach them. But, in part because Ohio has not (yet) reformed its marijuana laws in any way, I am cautiously hopeful I can give the group some useful insights about the inevitability of legal and practical uncertainties, especially in the criminal law arena, as to what really happens in a state after it formally repeals blanket marijuana prohibition in some way.
Based on case rulings, policy reports and conversations with lawyers in the field in states like Colorado, I have a general sense of various possible answers to the multi-dimensional query in the title of this post. But I would be especially eager to hear from any and all persons in reform states if they have distinctive experiences or thoughts in reaction to my question.
Cross-posted at Marijuana Law, Policy and Reform
Friday, June 05, 2015
Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"
Regular readers know I have given lots of space this week to coverage and criticism of federal clemency efforts. I am pleased to continue now with a guest post via former Pardon Attorney Margaret Love, which she sent my way under the title "A Modest Proposal to Expedite the Administration's Clemency Initiative":
Mark Osler’s post in this space on June 4 ("Another View on Clemency Project 2014") recounts his unsuccessful efforts several years ago to persuade the Administration to establish a presidential commission, similar to the one that handled cases of Vietnam draft evaders and deserters during the Ford Administration, to review and recommend clemency relief for the thousands of prisoners serving prison sentences imposed more than a decade ago that are now generally considered far too severe. He suggests that the reason the Administration chose not to follow this path relates to its doubt that Congress would fund such an effort. Instead, the Justice Department chose to address the problem of excessive sentences by asking a consortium of private organizations to manage it through the volunteer efforts of the private bar.
We will never know whether Professor Osler’s commission idea would have worked, or whether lack of funding was the reason it was rejected. But it does appear that the structure put in place instead to manage the Administration's clemency initiative has (in his words) “struggled with the overwhelming number of cases (over 30,000) referred to it.”
It did not help that the Administrative Office for U.S. Courts sharply limited the role that Federal Public Defender Organizations could play in the clemency initiative, by declaring that CJA funds could not be spent on clemency representations. Many, including myself, believe that the sentencing expertise and advocacy of the Federal Defenders is critical to implementing the sort of large scale program of sentence reduction the Administration evidently had in mind.
But there is another approach that might have been taken by the Administration that would have ensured a central role for the Federal Defenders. This approach, which might still be taken, would make extraordinary sentence reduction the responsibility of the federal courts as well as of the President. Bringing cases back to court would not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could achieve the same result as executive clemency, through court proceedings where CJA appointments are clearly authorized. And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale are possible.
Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13. Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include terminal illness, a physical or medical condition that diminishes a person’s ability to provide self-care in a prison environment, the death or incapacitation of a child’s only caregiver, and any other reason that may be determined to be “extraordinary and compelling” by the Director of BOP. It is noteworthy that several of the organizations represented on the Clemency Project 2014 steering committee are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “the defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.”
Less than two years ago BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive. See Program Statement 5050.46, as amended (August 12, 2013). Accordingly, there is no reason why BOP could not determine, with or without an amendment to ¶ 1B1.13, that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by the Deputy Attorney General as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President through the Office of the Pardon Attorney.
There are in addition other reasons why it would be appropriate to supplement the clemency initiative with a statutory sentence reduction initiative implemented through the courts, including a general preference for a judicial decision-maker under federal sentencing law and policy, and for a congressionally authorized approach over an extra-legal use of executive power. Most scholars agree that clemency ought always to be a second choice where the law provides a remedy for sentencing unfairness or undue severity, as it does in this case. See, e.g., Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 Fed. Sent. Rptr. 119, 124 (2001) (“Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining – with reasons – whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations.”)
Traditionally, the Federal Defenders have played a central role in proceedings involving judicial consideration of sentence reduction under § 3582(c)(2) where guideline ranges have been lowered, even though there is no constitutional right to counsel in such proceedings. They are key players in the massive effort to reduce sentences now underway under the so-called “Drugs Minus Two” guidelines amendment. There is no reason why the Defenders should not play a similar role in judicial sentence reduction proceedings under § 3582(c)(1). There does not appear to be any relevant difference between the two types of proceedings as far as the discretionary appointment power in 18 U.S.C. § 3006A(a)(2) is concerned. In the interests of judicial economy, these proceedings might even be combined.
All it would take to make this happen would be a resolve on the part of the Department of Justice to use this statute for the purpose it was originally intended.
Augmenting the Administration’s sentence reduction program through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would accomplish the Administration’s goals in reducing unduly severe sentences, while at the same time regularizing sentence reduction through the courts pursuant to statute. It would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power.
Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) "we can do the job ourselves." Now I would ask the new DAG the same question.
Some prior related posts:
- Extraordinary review of messiness of Prez Obama's clemency push
- Senator Grassley queries DOJ concerning its work with Clemency Project 2014
- NACDL explains the massive work behind Clemency Project 2014
- Defender hiccup or major headache for Clemency Project 2014?
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Might Charles Koch put big money behind big reform of federal clemency process?
- Professor Mark Osler's informed perspective on recent federal clemency developments
Q: What do the Hamilton County Prosecuting Attorney and the Vicente Sederberg Professor of Marijuana Law and Policy have in common?
A: They are both featured speakers at the Ohio Marijuana Policy Reform Symposium taking place June 11, 2015 at The Ohio State University.
As I have noted before, my own Ohio has lately become a hot state for dynamic conversations about marijuana reform. And I have had the honor and privilege of helping bring together an interesting groups of speakers for what should be an informative and interest event next week at my own Moritz College of Law. This registration page provides more information about some of the speakers and provides a brief preview:
The Marijuana Policies of Ohio Taskforce, chaired by Hamilton County Prosecutor Joe Deters, will present the findings of its comprehensive research at a symposium on June 11 hosted at The Ohio State University Moritz College of Law. The Taskforce’s research report assesses and analyzes proposed marijuana legalization initiatives in four key areas - public safety and law enforcement, the economy, public health, and regulatory impact. The symposium will also include a panel discussion with national recognized experts in marijuana policy and law.
A press briefing will precede the event. For more information, please contact Kathy Berta at kathy @ rstrategygroup.com
As of this writing, there is no charge for attending this event, but space in the auditorium can get limited so I highly encourage everyone interested in attending to pre-register via this webpage ASAP.
Imagining a domestic Marshall Plan to rebuild communities after ending the drug war
For many reasons, it is way too early to say the long national war on drugs is over or even that there has been a significant retrenchment of the war at the federal level. Nevertheless, given the apprarent waning public support and clearly waning criminal justice resources being devoted to this war, it is not too early to start making plans for how best to frame national, state and local policies and priorities when this war ends. To that end, I have been talking up in some of my classes and lectures the idea of a "Marshall Plan" afte the drug war, and I was pleased and excited when visiting Harvard Law School a few months ago to leasr that some others were thinking along these lines as well.
In particular, David Harris and Johanna Wald, who help run the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, have robustly embraced the notion of a modern domestic Marshall Plan as evidence by this new op-ed they authored for the Boston Globe. The piece is headlined "Proposing a Houston/Marshall Plan for domestic policy," and here are excerpts:
On June 5, 1947, Secretary of State George Marshall spoke to a crowd of 15,000 at Harvard University’s commencement. In a surprise announcement, he unveiled plans for the United States government to rebuild a Europe devastated by almost a decade of war. In simple straightforward language, he declared that this massive effort — which came to be known as the Marshall Plan — “is directed not against any country or doctrine but against hunger, poverty, desperation and chaos...” The Marshall Plan is largely credited with restoring confidence and hope along with local economies in Europe. It remains a testament to the power of American fortitude and ingenuity.
Sixty-eight years later, Marshall’s words carry a surprisingly potent punch — albeit in response to a very different kind of “war”; one that we have been waging for decades against our own communities of color. During the past year, the curtain has been pulled back, revealing the maze of punishment, fear, and surveillance that traps so many individuals, particularly young men, living in these communities. They attend underresourced schools that expect them to fail and drop out. Police function as a hostile, occupying force, frequently hunting them down, and subjecting them to humiliating arrests and stop-and-frisk practices. They even lack recreational outlets....
Make no mistake about it. These communities did not simply “evolve.” They exist in their current state because of very deliberate educational, transportation, housing, and economic policy choices. These include investing in highways over subways, creating policies that transfer good jobs to areas beyond the reach of public transportation, redlining practices that keep families of color from moving into higher opportunity neighborhoods, and allocating scarce education dollars on surveillance and police rather than on libraries and laboratories. Each choice closes off one more exit out of the maze, and keeps residents stumbling into dead ends.
“The remedy lies in breaking the vicious circle,” stated George Marshall in the speech. Indeed. We propose to create a new Houston/Marshall Plan (named after civil rights giants Charles Hamilton Houston and Thurgood Marshall), focused on helping communities restore themselves after decades of intentional disinvestment. This new Houston/Marshall Plan will advance strategies, innovations, and solutions designed by those living and working in these neighborhoods. It is their voices that have been routinely ignored or silenced in public policy discussions. It will promote public health perspectives that favor recreational, day care and health centers, diversion programs that allow mothers to stay with their children, treatment for addictions, and job training instead of more police, more prosecutions, and more prisons. It will highlight promising models for building affordable housing units near these jobs, and for creating school cultures that expect students to succeed instead of treating them like criminals-in-waiting. For those who decry the costs of this rebuilding, we point to the economic and public safety benefits that all of us will reap from investments in communities and lives too long neglected.
Is Missouri becoming the "new Texas" when it comes to death penalty administration?
The question in the title of this post is prompted by two notable new stories showing some notable new details about how the Show Me state (1) has recently become a new national leader in actually carrying out death sentences, and (2) now seems well positioned to complete more executions in the near future than any other state. This lengthy Mashall Project piece focused on capital defense in Mizzou provides this background:
[Jennifer Herdon's] condemned clients were convicted of monstrous crimes, but at least a few presented powerful issues for appeal. Among them were a man diagnosed as schizophrenic who hallucinated clouds of flies and insisted on never speaking aloud the number “between 31 and 33”; a man so intellectually impaired that, as a child, he couldn’t understand hide-and-seek and who, at age 16, functioned like someone age 4-to-7; and a man whose claim of innocence was sufficiently compelling to convince a journalism class to dive into the case.
In the past two years, while much of the country has retreated from the death penalty, Missouri has gone the opposite direction. It has accelerated executions – last year, tying Texas for most in the country, with 10 – to such an extent that the “capital defense bar is in crisis,” according to a letter written to the Missouri Supreme Court by four members of an American Bar Association death-penalty assessment team.
Those four members – two law professors, a retired state appellate judge, and the chairman of the Missouri State Public Defender Commission – wrote in March that a mere “handful” of attorneys have represented most of the state’s executed inmates, despite the “notoriously lengthy and complex” nature of capital appellate work, coupled with “the emotional toll of losing client after client.” The team recommended that for attorneys handling capital appeals to be able to do their jobs adequately, the execution dates for clients should be staggered by at least six months.
Herndon, starting in November 2013, had five clients executed in just 15 months. In all, she’s had seven clients executed since 2003. And she has another execution scheduled next week. Herndon may be the most extreme example of how Missouri’s quickened pace of executions is swamping the defense bar, but she is not alone. Last year, six attorneys in addition to Herndon had multiple clients executed.
That list would have been longer if not for a stay granted by the U.S. Supreme Court before Mark Christeson’s scheduled execution in October. Christeson’s two attorneys, who had represented another inmate executed earlier in the year, missed a crucial filing deadline, not even meeting with their client until six weeks after it had passed. “Cases, including this one, are falling through the cracks of the system,” more than a dozen former state and federal judges wrote in a brief.
Paul Litton, a University of Missouri law professor and one of the four signatories on the letter from the ABA’s death-penalty assessment team, says: “With the executions happening month after month after month, and with so few attorneys handling these cases, the workload is just overwhelming.”
On Tuesday, Herndon and her co-counsel filed a request for a stay of execution for Richard Strong, scheduled to be executed June 9. The motion’s basis was their workloads, in particular Herndon’s. The motion says that when Herndon’s last client was executed in February, she put in more than 225 hours, “knowing that much more should have been done …” For the pending execution, she has 20 banker’s boxes of materials to review. Herndon “is struggling to fulfill her duties,” the motion says.
“Mr. Strong is at least entitled to a ‘fair fight.’ Such is impossible when defense counsel come in bloody and bruised, while the government has a seemingly endless supply of fresh reinforcements …,” the motion says.
Meanwhile, as now highlighted by this notable new Buzzfeed article (from which I got the graphic here), it would appear that Missouri has figured out some way to get all the execution drugs they could possibly need even as other states struggle mightily in this arena. The Buzzfied piece carries this full headline: "Missouri Is Mysteriously Building A Massive Stockpile Of Execution Drugs: Missouri now has enough drugs for 16 lethal injections. But how? The drugs often used in executions generally have a short expiration date." Here is an excerpt:
State officials changed drug suppliers in February 2014, after their previous supplier, the Apothecary Shoppe, was sued for, among other things, selling execution drugs when it wasn’t licensed to do so in Missouri. Until February 2014, Missouri’s drug stockpile hovered around zero, presumably because the compounded drugs expired so quickly. Since changing drug suppliers, however, the state’s drug supply has exploded, according to records obtained by BuzzFeed News.
With FDA-approved suppliers either discontinuing the manufacture of pentobarbital or enacting stringent guidelines to prevent states from getting ahold of their drugs, it led some capital attorneys to believe the state is resorting to veterinary pentobarbital — something that would be much easier to find, but illegal to use on humans.
When two attorneys, Cheryl Pilate and Lindsay Runnels, approached the Department of Corrections, officials refused to say whether the drug is veterinary. “The response has been very evasive,” Pilate said. “We made several requests about the use of veterinary drugs, and instead of getting the response of “Of course we would never use a veterinary drugs,” they [were] refusing to say.”
When BuzzFeed News asked the state’s corrections department whether the state is using veterinary drugs in executions, spokesperson David Owen said, “No.” Owen would not answer any questions about how the state could be holding onto drugs for so long, given the short shelf life of compounded drugs. Gov. Jay Nixon’s Office would not answer questions, either, and a spokesperson with Attorney General Chris Koster’s office declined to comment.
“It’s the ease with which they’re getting it,” Pilate said. “Other states are having serious problems getting ahold of their drugs. Why not Missouri?”
Thursday, June 04, 2015
Latest polling data shows diminished death penalty support
This new ABC News article, headlined "New Low in Preference for the Death Penalty," reports on the lastest interesting poll data concerning death penalty views. Here are the details:
A majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls. Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty - the fewest in polls dating back 15 years....
Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That's down sharply from 80 percent in 1994. Clearly there's remaining ambivalence; when offered the option of life imprisonment with no chance of parole, 29 percent of death penalty supporters prefer the alternative....
Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....
Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.
There's also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that's generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.
Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It's 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It's 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.
Professor Mark Osler's informed perspective on recent federal clemency developments
Professor Mark Osler is rightly considered one of the most informed and effective sentencing reform advocates, especially in the arena of clemency. Thus I was very pleased when he wrote to me as a follow-up to my recent posts about recent federal clemency developments and provided some lengthy reflections he has titled "Another View of Clemency Project 2014." Here are Mark's informed and important insights:
In the fall of 2012, I gathered together four students, a passel of handwritten letters pleading for help, and a bunch of Margaret Colgate Love articles and created the nation's first clinic focused on federal commutations. The project has turned out to be wonderful as a teaching model; my students get to learn the core legal skill of building a narrative and advocating for a client in a process relatively free of procedural snares. It also has propelled me into the simmering debate over the Obama administration's clemency policy.
Of course, for most of the Obama presidency it wouldn't be very accurate to call the way clemency was handled as a "policy." For the most part, it appears, they simply lopped over the failed guidelines and rules of his predecessor rather than work to revive this key Constitutional power. This failure represents a troubling lack of focus in a president who (1) has properly decried the disparate incarceration of black men through the War on Drugs, and (2) came to politics as a Constitutional Law professor.
At the same time I was starting my clemency clinic, I also began to advocate for a vigorous, short-term project to use the pardon power to help those prisoners serving long sentences under mandatory minimums and sentencing guidelines on crack cocaine that were amended in 2010, but not made retroactive. With Nkechi Taifa and others, I met four times with administration officials and urged them to follow the example of President Ford, who granted clemency to nearly 15,000 Vietnam-era draft evaders and deserters in just one year. Ford did this by convening a special commission outside of the Justice Department, and that commission left behind a remarkable report full of good advice. I even left a copy of the Ford Presidential Clemency Commission Report with those Obama advisors after a meeting in the Vice President's imposing office in the Eisenhower Building.
The Obama administration did not take our advice, but they did announce a very different short-term commutation initiative -- the Clemency Project 2014, which put in the hands of five non-profit groups the shepherding of worthwhile cases towards clemency. My hunch -- and it is only a hunch -- is that this course was chosen because the administration did not think that it could get the money needed to fund a Ford-style Clemency Board through the House of Representatives. The recent Marino Amendment (which seeks to bar the use of funds for the Clemency Project 2014 or for augmenting the Pardon Attorney's office) passed by the House on June 3rd shows that there was a sound basis for that fear.
As has been well-documented, the Clemency Project 2014 has struggled with the overwhelming number of cases (over 30,000) referred to it. If there is blame in that, I should share it. Though I am not affiliated with any of the five groups in charge, I have taken an active role in training pro bono lawyers for Clemency Project 2014, have tried to rally other law schools to the cause, and have taken on several cases myself. Obviously, the structure of this project is not the one I proposed, but it is the one that we have, and through the end of the Obama administration probably represents the best chance for a historic use of the pardon power by this President. It is unlikely that this administration will suddenly — in the next year and a half — repair its relationship with the House to the point where new funding for clemency reform can be found. The toxic dynamic that probably skunked my proposal is still at work.
Professor Berman has suggested that wealthy clemency proponents like the Kochs could go far in re-making the process if they were to invest their money in reform. I think he is right. There are two areas where those resources could be used efficiently. The first is by investing in the debate over who should be the next president. Sadly, we only talk about clemency in the political realm when it goes wrong (i.e. in the last days of Bill Clinton's presidency or Haley Barbour's governorship). We should be actively asking candidates what they would do with clemency when they are running for office, and urging them towards reform. Rachel Barkow and I have, for example, argued that the next administration should shift permanently to a process centered on a review board outside of the Department of Justice, and others have promoted similar ideas. The "Supernova Federal Clemency Institute" research group Professor Berman proposes is worthwhile — but probably most worthwhile (especially with Koch backing) if it is focused on the 2016 election and the first days of a new presidency.
Beyond that advocacy, it would be wise to devote private-funding resources to the Clemency Project 2014 itself, in two ways. First, the project has a devoted and talented but threadbare staff, and that has a cost. There are few resources available to CP14 to screen cases before sending them out to lawyers, for example, and that is a problem that can be solved with money and more bodies. Second, it would help to have full-time lawyers working as advocates on these cases as specialists, as they would be much more efficient than the pro-bono generalists who often have to learn federal sentencing law from scratch. In collaboration with NYU's Center on the Administration of Criminal Law and others, I am working to do exactly that. The more money we raise, the more lawyers can be hired. But... it has to happen fast. The window is closing, and the election season is already upon us.
Some prior related posts:
- Extraordinary review of messiness of Prez Obama's clemency push
- Senator Grassley queries DOJ concerning its work with Clemency Project 2014
- NACDL explains the massive work behind Clemency Project 2014
- Defender hiccup or major headache for Clemency Project 2014?
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Might Charles Koch put big money behind big reform of federal clemency process?
Wednesday, June 03, 2015
Notable application of Padilla by Fifth Circuit even after judicial deportation warning
The Fifth Circuit yesterday in US v. Batamula, No. 12-20630 (5th Cir. June 2, 2015) (available here), engaged in an extended and interesting discussion of a Padilla claim. The opinion's conclusion highlights why Padilla fans will also like this panel ruling:
For these reasons, we conclude that a judge’s statement at the guilty plea proceeding that deportation is “likely” is not dispositive of whether a petitioner whose counsel failed to advise him regarding the immigration consequences of his plea can demonstrate prejudice as a result therefrom. Batamula thus is not foreclosed from challenging his guilty plea under Padilla solely because the district court notified him that deportation following the service of his sentence is “likely,” and the district court erred in holding to the contrary. The record is currently insufficiently developed for us to apply the fact-intensive, totality of the circumstances prejudice analysis necessary to determine whether Batamula is entitled to relief on his Sixth Amendment claim. We therefore REVERSE and REMAND for further proceedings consistent with this opinion.
"Bifurcation Nation: Strategy in Contemporary American Punishment"
The title of this post is the title of this notable new paper by Christopher Seeds now available via SSRN. Here is the abstract:
Important recent work by penal scholars recognizes the need to study the interplay between federal and state initiatives and between state and local structures. But the sociology of punishment has been less cognizant of late of the importance of studying the relation between the divergent treatment of high-level and low-level offenses and offenders as a means of understanding those federal, state or local approaches to penality. By one conventional view, the divergent policy trends for violent and nonviolent offenders are unrelated operations working at different ends of an ambivalent carceral spectrum; by another emergent perspective, the increasing decarceration of low-level offenders marks a general shift away from mass incarceration that has yet to extend to serious offenders and offenses.
This paper suggests that, rather than a unidirectional force or mere ambivalent mix of old and new, contemporary sentencing policy is better understood as a bifurcation strategy — one that responds uniquely to the new dilemmas and new constraints presented by a moment we might call, with cautious optimism, late mass incarceration.
New Deputy AG suggesting every too-long federal prison sentence hurts public safety
This recent NPR piece, which provide a mini-profile on the new Deputy Attorney General, Sally Yates, has a headline and some quotes that might be effectively utilized by defense attorneys to argue that any unduly long federal prison sentence damages national public safety. The piece is headlined "No. 2 At Justice Warns Growing Prison Budget Detracts From Public Safety," and here are excerpts:
Prosecutors usually spend their energy putting criminals behind bars — not urging their release. But racial disparities in the system and the huge costs of locking up so many people are pushing some government officials to call for a new approach. One of them is the woman who now runs day-to-day operations at the Justice Department. Sally Yates says she's hardly soft on crime: "I'm a career prosecutor."...
"I've been at this for 27 years now," Yates says. "I believe that it's really imperative that we do everything we can to keep our communities as safe as possible but to do that in a way that is just and fair."
The Senate confirmed Yates last month as deputy attorney general. She's using her new platform as the second in command at the Justice Department to warn the expanding prison budget has begun to threaten public safety.
The federal government spends $7 billion a year to incarcerate about 200,000 inmates. That's money she says that could pay for more FBI agents and local police. "We know that it's the cop on the street that's one of the most important things to be able to keep our communities safe. But yet over the past decade, there's been a 40 percent reduction in the grant money that's available for cops on the street," Yates says.
New Justice Department estimates obtained by NPR suggest the situation will only get worse over the next decade. If nothing changes, the projections say authorities will need to take tens of millions of dollars that could have been devoted to community policing and local law enforcement, and instead, pour that money into federal prisons. "It is simply not sustainable for us to continue at the present rates that we are now of our incarceration levels," she says.
Yates is taking that message to Capitol Hill. She wants members of Congress to dial back long mandatory prison sentences for nonviolent drug criminals. Red States like Texas and Georgia launched efforts to overhaul their justice systems years ago. Now a left-right coalition of groups from the ACLU to Koch Industries is advocating for a smarter approach at the federal level too....
The Obama administration says it has reduced both the violent crime rate and the number of people going to prison. Former Attorney General Eric Holder, one of Yates's main supporters, crowed about the data in a speech last year: "This is the first time, the first time that these two critical markers have declined together in more than 40 years."
Tuesday, June 02, 2015
California agrees to model new lethal injection protocol on whatever SCOTUS says is good enough
As reported in this local piece, headlined "California death penalty: state agrees to propose execution method," a state with a remarkable inability (and disinclination?) to get its machinery of death operational has now agreed that the Supreme Court's latest review of lethal injection will provide a script for its next efforts. Here are the details:
California's death penalty system, dormant for nine years, might soon move slowly toward resuming executions. As part of a court settlement reached on Tuesday, the state's corrections department agreed to unveil a new execution method by the fall that will be tied to the outcome of a U.S. Supreme Court ruling expected sometime this month in a challenge to Oklahoma's lethal injection protocol.
While California is still far from executing one of the 750 condemned killers on death row, the development marks movement on the issue for the first time in years. There are at least 17 inmates on death row who have exhausted their legal appeals and would be eligible for execution dates.
State prison officials resolved a lawsuit filed last year by the families of victims of condemned killers who argued the state has a legal obligation to implement an execution method. A Sacramento judge earlier this year found the state should be required to move forward in a case brought by two families, including former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were murdered 31 years ago by a man now on death row. Death penalty supporters have accused state leaders such as Gov. Jerry Brown and Attorney General Kamala Harris of dragging their feet in getting executions back on track. The state has not had an execution since 2006 as a result of legal challenges to its lethal injection method.
Several years ago, the courts invalidated one state effort to revise its three-drug execution method, prompting California to explore switching to a single lethal drug as other states have done. But the state had not made progress until Tuesday's settlement.
The Supreme Court is expected to clarify the legality of lethal injection methods in the case out of Oklahoma, which still has a three-drug procedure. Deborah Hoffman, spokeswoman for the California corrections department, confirmed that the prison system, which has been developing its regulations, will submit its new execution method within 120 days of the Supreme Court's ruling.
Lawyers for the families said it "made sense" for California to await that ruling. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he expects the state to adopt a single drug method using a sedative he maintains can be obtained. However, states around the country, including California, have encountered problems securing supplies of execution drugs because drug manufacturers have refused to sell the drugs to prisons.
Might Charles Koch put big money behind big reform of federal clemency process?
The question in the title of this post is prompted by this notable new USA Today article headlined "Koch urges Obama administration to speed up clemency program." Here are excerpts:
Billionaire industrialist Charles Koch and top officials in his company are calling for the Obama administration to release from prison the thousands of non-violent offenders who qualify for clemency under a Justice Department initiative. The push to shorten long federal sentences, mostly for drug offenses, has had a sluggish start since it was announced in April 2014. President Obama has commuted the sentences of only a few dozen inmates since the program took effect.
"I'm not faulting the administration," Mark Holden, Koch Industries' senior vice president and general counsel told USA TODAY on Monday. But, he said, "people got their hopes up. Why isn't it going any faster?"
Koch Industries officials did not offer a specific policy changes but hope their statement of unequivocal support for the clemency initiative will focus attention on the program. "When Charles says something … it helps to highlight the issue and bring other like-minded people to the table," Holden said.
Charles Koch, whose multibillion-dollar industrial conglomerate is one of the nation's largest private companies, has an outsize influence in Republican politics. His expansive network plans to spend about $900 million ahead of 2016 elections — about $300 million of which will be spent on electoral politics, he said. Koch also recently told USA TODAY that he might financially support up to five Republican presidential contenders in next year's primary: Wisconsin Gov. Scott Walker, former Florida governor Jeb Bush and Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Marco Rubio of Florida.
"We're going to be supportive of those candidates who are supportive of the issues that are important to us," Holden said Monday, when asked what role the clemency issue might play in the 2016 race. Criminal-justice reform, he said, is a key part of Koch's "freedom framework." Holden noted that Paul and Cruz have pushed for changes to the system. Both have signed on to a Senate bill that would cut mandatory minimum sentences for drug offenses....
Lawyers involved in the clemency initiative say the process has been slowed, in part, because the eligibility standards may be too tough for the inmates to meet. The main targets of the program are drug offenders who were sentenced under a strict crack-cocaine law that was eased by Congress in 2010. To be eligible, inmates must be non-violent offenders who already have served 10 years and would have received shorter prison terms had they been sentenced under today's laws. They also must have a record of good conduct in prison and no significant criminal history....
More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of legal organizations, including the American Bar Association and The National Association of Criminal Defense Lawyers, that are helping eligible inmates seek commutations.
Justice Department officials did not immediately respond to a request for comment Monday but have said they are likely to recommend more commutations to the White House. The administration also has requested a 66% budget increase for the Justice Department's Office of Pardon Attorney, which reviews the clemency requests.
Holden and Koch Industries spokeswoman Melissa Cohlmia said company officials decided to publicly support the clemency initiative and call for the faster release of inmates after receiving requests both from organizations and individual inmates, seeking Koch support for clemency applications. In a statement, Holden said Koch and the company back both the program and the Obama administration's eligibility criteria. He said the company also would like to see Congress revise more laws to cut prison time for inmates who would have received shorter terms had they been sentenced today.
"Until there is a change in that legal process, we believe that everyone who meets the common-sense criteria set by the Department of Justice should be granted clemency," Holden said in the statement. "We do not believe that keeping these individuals in prison under these circumstances is just nor does it enhance public safety."
I am always pleased to see prominent folks like the Koch brothers, and others who talk prominently about the importance and virtues of freedom, bringing their message to the criminal justice arena and pushing for reforms. I am especially pleased to see Koch Industries prominently "throwing its weight around" in support of more federal clemency grants ASAP. That all said, though, I would really like to see the Koch brothers start prominently throwing some money around to engineer systemic changes to clemency procedures and politics.
Together, the Koch brothers are estimated to be worth $80 billion; a high-profile investment of just, say, .01% of these riches spent on creating and staffing what I might call a "Supernova Federal Clemency Institute" could and would go a long way to transforming the modern clemency conversation. I am branding this suggested clemency effort on the kind of stellar explosion that briefly outshines an entire galaxy, radiating as much energy as possible before burning out: a "Supernova Federal Clemency Institute," especially if funded by just .01% of the Koch fortune ($8 million), would explode on the clemency scene and could burn very bright for the final 18 months of the Obama presidency.
With $8 million in resources (and perhaps more coming from others committed to personal freedom in the United States), the "Supernova Federal Clemency Institute" could hire and effectively compensate a staff of lawyers, researchers and advocates who surely could produce, perhaps in a matter of weeks, a robust list of meritorious federal clemency candidates. This imagined "Supernova Federal Clemency Institute" also could work on rentry project for those granted clemency, could produce reports on best-practices in the states, and could make recommendations to the President and to Congress about how best to ensure federal and state clemency procedures are enduringly committed to helping "secure the blessings of liberty to ourselves and our posterity."
June 2, 2015 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)
Spotlighting the role and importance of federal prosecutors in the drug war
Mona Lynch has this notable new op-ed in today's New York Times headlined "Reining In Federal Prosecutors." here are excerpts:
In recent months, police departments and prison systems have been taking heat for the systemic abuses that mar our nation’s justice system. But one key player has been notably absent: For decades, our federal court system has been quietly perpetrating some of the deepest injustices in the name of the war on drugs.
Federal laws passed at the height of our punitive frenzy in the 1980s have been abused by overzealous federal prosecutors to compel guilty pleas and obtain long, unjust prison sentences, especially against black drug defendants. We must rein in these practices if we are to reshape our country’s criminal justice system for the 21st century.
Prosecutors have a number of tools at their disposal, the most powerful of which is the “851,” which can be filed against those with prior drug convictions to at least double mandatory minimum sentences. In the worst case, a 10-year mandatory minimum becomes a life sentence without parole for a defendant with two prior convictions. The 851 statute was passed in 1970 to give prosecutors more discretion to seek harsh sentences against only the most serious offenders, and exempt lower-level defendants. But it has been deployed in exactly the opposite manner.
I have conducted in-depth qualitative research and interviews in four federal districts; in each, the 851 threat loomed for nearly everyone with the eligible prior record. In the words of one of my interviewees, “the 851 is the ultimate lever” used by prosecutors to force a guilty plea. And it almost always worked: Defendants were compelled to waive their rights and plead guilty to ensure that their sentences were not doubled, or worse.... [N]o entity tracks the threat or use of the 851 in drug cases. We do know, however, from qualitative research like mine and recent work by the United States Sentencing Commission that its coercive use has been pervasive.
Data also indicate that mandatory minimums and enhancements like the 851 have been disproportionately used against black defendants. While research shows that illicit drug use and distribution is generally proportionate to the racial makeup of the nation’s population, black people are overrepresented as drug defendants in federal courts, constituting 30 percent of all those sentenced for drug crimes, and a full two-thirds of those who receive life sentences.
Between 1992 and 2012, about 2,300 black men have been sentenced to life for federal drug convictions, 72 percent of whom had asserted their right to trial. While data cannot pinpoint the 851 as the trigger of those life sentences, it does indicate that 96 percent were subject to drug mandatory minimums at sentencing.
Some effort has been made to address the overzealous use of the 851 threat. In 2014, Attorney General Eric H. Holder Jr. directed prosecutors to refrain from using the 851 as a threat or inducement in plea negotiations. But while his directive has clearly changed behavior in some districts, the 851 threat remains alive in others.
As we grapple with the consequences of a three-decade-long law-and-order binge that has disproportionately affected black communities, we must repair the damage done in the past and prevent a repeat in the future. That means revisiting the unconscionably long sentences that keep Brandon and others behind bars for most or all of their lives, and it means removing hammers like the 851 from the prosecutors’ toolbox to prevent their future abuse.
"Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code"
The title of this post is the title of this notable new paper by Margaret Colgate Love now available via SSRN. Here is the abstract:
The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community. Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts. Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.
One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases. Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long. This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality an
Has anyone systematically studied whether "creative" sentences are more effective than others?
The question in the title of this post is prompted by this new Huffington Post piece headlined "Judge Michael Cicconetti's Unorthodox Sentences Include Walking 30 Miles, Getting 'Pepper Sprayed'." Here are excerpts:
An Ohio judge known for his unusual sentencing methods ordered a woman to walk 30 miles -- the same distance a taxi took her before she skipped out on the fare. On Thursday, Judge Michael Cicconetti gave Fairport Harbor resident Victoria Bascom the choice to either spend 60 days in the local slammer, or walk 30 miles in the next 48 hours. She chose to walk, according to WOIO.
It was the 18-year-old's punishment for refusing to pay the $100 cab fare from Cleveland to Painesville, according to the News-Herald. She'll also have to pay the cabbie $100 and will be on probation for four months over the misdemeanor theft count.
The same day, Cicconetti gave 19-year-old Diamond Gaston a similarly unusual option after Gaston assaulted a man with pepper spray. Gaston could see jail time, or could allow the victim to spray him with pepper spray to see how it felt. Gaston chose pepper spray, not knowing that he'd really be sprayed with a saline solution. The plan was to teach him a lesson.
Cicconetti has been known to hand down eye-for-an-eye sentences to misdemeanor offenders for years. He's been a polarizing figure over the practice, but he told The Huffington Post on Monday that it works. "I would put my recidivism rate up against anybody's," the judge told HuffPost Crime. "You can send someone to jail and make it the sheriff's problem; they get out and nobody follows up. With these sentences, they're on probation, and in most cases, I'll end up taking it off their record."
He said traditional sentencing, especially for first-time offenders, doesn't do much to show defendants the impact of their actions. Instead, he once ordered a suspect caught speeding in a school zone to be a crossing guard for a shift. He made a man who called cops "pigs" stand on a street corner with a real pig and a sign that states, "This is not a police officer." He says he even ordered a man who sped past a school bus' flashing red lights to ride a school bus for a day.
Critics reportedly say Cicconetti is just trying to grab headlines. The judge told HuffPost he'd be happy if that were the case, and would like to see more courts adopt this type of sentencing for first-timers. "These people aren't coming back [into the court system]," he said. "It really works. I started with baby steps, but as I got braver or dumber or crazier, I started handing these sentences down more."
You can't sentence everyone like Bascom or Gaston, he said. He says only "1 percent" of his cases get that type of treatment, and he has criteria for his style of justice: Suspects need to be first-time offenders, generally young and impressionable, and "remorseful for what they did."
Monday, June 01, 2015
"The Missing Statistics of Criminal Justice"
The title of this post is the headline of this interesting commentary by Matt Ford in The Atlantic. The subheadline sets out its themes: "An abundance of data has fueled the reform movement, but from prisons to prosecutors, crucial questions remain unquantified." Here are excerpts:
After Ferguson, a noticeable gap in criminal-justice statistics emerged: the use of lethal force by the police. The federal government compiles a wealth of data on homicides, burglaries, and arson, but no official, reliable tabulation of civilian deaths by law enforcement exists....
This raises an obvious question: If the FBI can’t tell how many people were killed by law enforcement last year, what other kinds of criminal-justice data are missing? Statistics are more than just numbers: They focus the attention of politicians, drive the allocation of resources, and define the public debate. Public officials — from city councilors to police commanders to district attorneys — are often evaluated based on how these numbers change during their terms in office. But existing statistical measures only capture part of the overall picture, and the problems that go unmeasured are often also unaddressed. What changes could the data that isn’t currently collected produce if it were gathered?
In one sense, searching for these statistical gaps is like fishing blindfolded — how can someone know what they don’t know? But some absences are more obvious than others. Bruce Western, a professor of sociology at Harvard University, cited two major gaps. One is the racial demography of arrests and criminal records....
There may be many missing statistics from the realm of policing, but even greater gaps lie elsewhere. Thanks to the FBI’s Uniform Crime Reports, police departments might actually be one of the better quantified parts of the criminal-justice system. Prisons also provide a wealth of statistics, which researchers have used to help frame mass incarceration in its historical and demographic content. The Justice Department’s Bureau of Justice Statistics maintains an annual report on the size of the U.S. prison population. The report includes state-by-state demographic statistics like inmate ages, races, crimes committed, and other crucial data for researchers and policymakers.
But while current prison statistics give a good sense of the size and scale of mass incarceration, they provide little information on conditions inside the vast constellation of American prisons. Perhaps the most glaring gap is solitary confinement. No one knows exactly how many people are currently kept in isolation in American prisons. “There are estimates, but no official count nationwide,” Western said....
Another major gap in prison statistics is the number of non-sexual assaults behind bars. Although Congress mandated the collection of sexual assault statistics with the Prison Rape Elimination Act in 2002, prisons are not required to report ordinary assaults to the Bureau of Justice Statistics....
Prisons and police departments may be the most visible parts of the criminal-justice system, but they are not necessarily the most powerful. As judges lost flexibility with the growth of mandatory-minimum sentences during the tough-on-crime era, prosecutors became the most pivotal actors within the criminal-justice process. This rise in influence was matched with a decline in transparency. “Up until the late 1980s and early 1990s, we used to collect more data — not a whole lot of data, but more data — on what prosecutors do,” [Professor Marie] Gottschalk explained. “[Now] the police are certainly much more accountable than prosecutors are, in terms of the visibility of what they do and the transparency of what they do.”
One prosecutorial tool with little transparency is plea dealing. In 2013, more than 97 percent of all federal criminal charges that weren’t dismissed or dropped were resolved through plea deals. (State-by-state totals are incomplete or unavailable, but often estimated to be similarly high.) For prosecutors, the benefits are clear: Offenders are punished without expending manpower and resources in lengthy trials. But plea deals are also one of the least-scrutinized parts of the criminal-justice system. “In most cases, that’s a complete black box,” Gottschalk said. “It allows prosecutors to have this enormous power without much transparency to the public.”
In the absence of reliable statistics, anecdotal evidence often fills the void. This is especially true when studying racial bias in the prosecutorial process. Prosecutors are not required by law to compile data on racial disparities. They also have little incentive to gather and publish it voluntarily, partly because of resource constraints and partly because of its potential negative implications.
A small number of offices have sought answers nonetheless, often with troubling results. In 2011, Manhattan District Attorney Cyrus Vance invited the Vera Institute to examine his office’s internal records for evidence of racial disparities. The institute’s final report found that disparities plagued every step of the process. Among its findings: Black and Hispanic defendants were more likely to be offered plea deals on misdemeanors that included imprisonment than white and Asian defendants. Would similar reviews of prosecutors’ offices nationwide produce similar results?...
This data’s absence shapes the public debate over mass incarceration in the same way that silence between notes of music gives rhythm to a song. Imagine debating the economy without knowing the unemployment rate, or climate change without knowing the sea level, or healthcare reform without knowing the number of uninsured Americans. Legislators and policymakers heavily rely on statistics when crafting public policy. Criminal-justice statistics can also influence judicial rulings, including those by the Supreme Court, with implications for the entire legal system.
Beyond their academic and policymaking value, there’s also a certain power to statistics. They have the irreplaceable ability to both clarify social issues and structure the public’s understanding of them. A wealth of data has allowed sociologists, criminologists, and political scientists to diagnose serious problems with the American criminal-justice system over the past twenty years. Now that a growing bipartisan consensus recognizes the problem exists, gathering the right facts and figures could help point the way towards solutions.
Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
The depressing question in the title of this post is prompted by this depressing new USA Today article headlined "Obama administration clemency push gets slow start." I have long tried to avoid being too pessimistic about what has been unfolding on the federal clemency front over the last 18 months, in part because I sincerely believed it would be nearly impossible to make the modern federal clemency process and products even worse. But this USA Today piece has me fearing that my own pessimistic instincts perhaps should now turn even darker (based on the statements and data points I have highlighted below):
A Justice Department push to shorten long drug sentences through President Obama's clemency powers has gotten off to a slow start: Obama has commuted the sentences of just two of the tens of thousands of federal inmates who have applied through the program. Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.
The result is a system that appears even more backlogged than it was before the initiative began. "The criteria basically suggest that a whole bunch of good citizens who committed one little mistake got significantly more than 10 years in prison, and fortunately that's pretty rare," said Johanna Markind, a former attorney-adviser in the Office of Pardon Attorney who left in March. "I think they've kind of belatedly realized that people are doing their jobs, and those perfect cases they think are there don't really exist," she said. "For all the sound and fury about the commutations, the clemency initiative has only come up with a handful of cases that fit" the criteria.
The clemency initiative was intended to help federal inmates who would have received shorter prison terms had they been sentenced today. That applies mostly to drug offenders after Congress shortened sentences for crack cocaine in 2010. To be eligible, inmates must have already served 10 years of their sentence.
Last year, a record 6,561 federal prisoners — three times the usual number — filed petitions with the Justice Department's Office of Pardon Attorney, which advises the president on all requests for clemency. Under the constitution, the president has the absolute power to grant pardons and commute sentences.
More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of lawyers who have volunteered to help eligible inmates through the often complicated and time-consuming process of seeking a commutation. But 13 months later, those lawyers have submitted just 31 petitions. And while Obama has used his pardon power to shorten the sentences of 43, most of those cases predate the clemency initiative. Over six years, Obama has granted just 0.2% of the commutation petitions submitted.
The Justice Department says it expects to recommend more commutations to Obama as it reviews the petitions. But that could take a while: In its 2016 budget request to Congress, the department said the deluge of clemency applications is too much for the current staff to manage. "As OPA's existing staff has discovered, expending the substantial resources required simply to manage such a volume of clemency requests significantly decreases those available for analyzing and evaluating the merits of individual applications and preparing the appropriate letters of advice to inform the president," the Justice Department said in its congressional budget justification.
Obama has proposed a 66% budget increase for the Office of Pardon Attorney in 2016, and is seeking twice as many lawyers to process all the paperwork. And that paperwork can be daunting, requiring an examination of trial transcripts, the pre-sentence report (which is often sealed) and Bureau of Prisons files.
To be eligible under the program, inmates must be low-level offenders with no ties to gangs or cartels. They must have demonstrated good conduct in prison, have no significant criminal history and no history of violence. "There are gray areas, What is 'demonstrated good conduct in prison,' for example? Is that a pristine record?" said Cynthia Roseberry, a career public defender who now manages the Clemency Project 2014.
Without knowing how the Obama administration will apply those vague criteria, it's impossible to know how many could be eligible. "My hope is that thousands of those will meet the criteria, but I just can't speculate." Roseberry said. She said she expects the numbers to increase as the Clemency Project continues to screen for likely candidates for commutation. A Clemency Project screening committee has already notified more than 3,000 inmates it won't be accepting their cases. Once a case is accepted, it's parceled out to a volunteer attorney such as Mary Davis.
Davis represents Byron McDade, a Washington man sentenced to 27 years for cocaine trafficking even as his co-conspirators — who testified against him — got no more than seven. In 2009, after McDade had served his first seven years, the judge who sentenced him urged Obama to commute his sentence. "While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the president is not," U.S. District Judge Paul Friedman wrote in another opinion last year,
So Davis assembled a 168-page petition with the help of two West Virginia University law students — Laura Hoffman and Amanda Camplesi — who spent a combined 122 hours on the case, collecting paperwork and visiting McDade at a federal prison in Pennsylvania. Davis said the work was complicated, even as a veteran federal defense attorney specializing in sentencing appeals. "I know there were attorneys signing up for this who don't do criminal defense work, and I would think it would be extremely difficult," she said.
McDade is an unusual case: Before being convicted in 2002, his only offense was a minor misdemeanor with a $10 fine. Markind, who worked on commutation cases as a Justice Department lawyer, said the clemency initiative did not relax Obama's "three strikes" policy making anyone with three or more criminal convictions ineligible for clemency. "Criminals with a record do not make the most appealing poster children," she said....
Mark Osler, a law professor at the University of St. Thomas in Minneapolis and a former prosecutor ... said the clemency process is already too bureaucratic and too distant from the ultimate decision-maker: the president. The Clemency Project hopes to cut through the process by helping to provide the Justice Department with better, more complete case files to review. But that solution has also led to criticism from Capitol Hill, where Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, says that the administration is outsourcing a government responsibility.
"We've failed the same way through different kinds of administrations, and the problem isn't the administration, it's the process," Osler said. "The sad thing is, every president recently has gotten to the end of their term and said, 'Hey, where are all the good clemency cases?' I sure hope that will change, but it's going to be a furious last year as these things start to come in even greater numbers."
It is hard to fault, and I am very disinclined to criticize excessively, all of the well-meaning and dedicated lawyers and administrators operating now in a system taking on Rube-Goldberg-quality with seemingly too many elements, criteria and moving parts. Still, by now having so many more people applying for clemency, along with so many more lawyers trying to figure out the meaning and importance of so many vague criteria, it is not surprising that the clemency push/project has been most successful in producing a lot more paperwork and so many more questions about what this system is seeking to achieve.
I have long believed that President Obama could and should create an independent commission or task force or working group that would be tasked with making federal clemency reform a priority in a very short period of time. Notably, as highlighted here, such a proactive approach to policing reform achieved a whole lot in just a matter of months:
On December 18, 2014, President Barack Obama signed an Executive Order establishing the President's Task Force on 21st Century Policing. The Task Force Members sought expertise from stakeholders and input from the public as they worked to identify best practices and make recommendations to the President. The Task Force submitted an initial report to the President on March 2, 2015 and released the final report on May 18, 2015.
Especially in light of all the new troubles and costs that the current approach is generating, I would urge the President to sign an Executive Order ASAP establishing the President's Task Force on 21st Century Clemency. The Task Force Members could seek expertise from stakeholders and input from the public as they worked to identify best clemency practices and make recommendations to the President no later than December 1, 2015. That would still give Prez Obama a full year to implement an improved clemency process and would leave truly helpful legacy and structure in place from whomever becomes his successor.
Some prior related posts:
- Extraordinary review of messiness of Prez Obama's clemency push
- Senator Grassley queries DOJ concerning its work with Clemency Project 2014
- NACDL explains the massive work behind Clemency Project 2014
- Defender hiccup or major headache for Clemency Project 2014?
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- President Obama (aka clemency grinch) grants a few holiday pardons and commutations
- Another account of the massiveness and messy process behind Prez clemency initiative
- Prez Obama starts to "walk the walk" on clemency by granting 22 new drug offense commutations
- "For principle to be served, 22 worthy, long-term narcotics prisoners granted release needs to become 2,200 or more."
June 1, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Via similar 7-2 rulings, SCOTUS narrows reach of federal criminal and deportation statutes in Elonis and Mellouli
Via excerpts and links from this post at How Appealing I can effectively summarize the interesting Supreme Court work on criminal justice issues this morning:
The Court today issued four rulings in argued cases.
1. Justice Ruth Bader Ginsburg delivered the opinion of the Court in Mellouli v. Lynch, No. 13-1034. Justice Clarence Thomas issued a dissenting opinion, in which Justice Samuel A. Alito, Jr. joined....
4. And Chief Justice John G. Roberts, Jr. delivered the opinion of the Court in Elonis v.United States, No. 13-983. Justice Alito issued an opinion concurring in part and dissenting in part. And Justice Thomas issued a dissenting opinion....
In early news coverage, The Associated Press has reports headlined "High court throws out conviction for Facebook threats";... "Justices reverse deportation of man over minor drug crime"; ... Richard Wolf of USA Today reports that "Violent threats on Facebook may be OK, justices rule"; ... and "Justices sock it to Justice Department over drug deportations."
As the title of this post suggests, there are considerable similarities between what the Justices did in both Melloni (a low-profile immigration case) and Elonis (a high-profile federal criminal case). In both setting, via a 7-2 vote with Justices Thomas and Alito dissenting, the Court adopted a norrower construction of an applicable federal statute based on concerns that the federal government's (and lower courts') interpretation goes too far (for deportation purposes in Melloni, for criminal prosecution in Elonis). The rulings and opinions are quite limited in both cases, and Justice Alito's dissent in Elonis fittingly laments this reality at its outset:
In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: “It is emphatically the province and duty of the judicial department to say what the law is.” Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.
I hope and expect to have more to say about the lengthy opinions in Elonis in future posts, although I suspect that the ruling will ultimately prove more consequental for what it failed to do and say than for what it actually does and says.
Seriously exploring — finally! — execution alternatives to lethal injection
The Supreme Court is expected to declare any day whether the injection of a drug called Midazolam violates the Eighth-Amendment protection against cruel and unusual punishment. Given the difficulty of procuring other suitable drugs, states devoted to the death penalty are lining up alternative ways to efficiently end human life. In Oklahoma (48 prisoners on death row), the answer seems to be nitrogen gas, a method favored by some proponents of assisted suicide but not something that has been employed in an execution chamber. Utah (nine on death row) proposes to revive the firing squad. Tennessee (67 on death row) is preparing to fire up its electric chair. Decisions, decisions. The Marshall Project took a closer look at the thinking that goes into the logistics of execution....
The [Oklahoma] bill’s sponsor, Rep. Mike Christian, told a German online newspaper that nitrogen inhalation “is the most humane way to die. You just sit there and a few minutes later, you’re dead.” Whatever the method, he added, “We will put these beasts to death.” Christian first conceived of using nitrogen for execution after watching a BBC documentary called “How to Kill a Human Being,” in which a retired member of the British parliament sampled various execution protocols (obviously stopping short of death) before deciding that nitrogen was “a perfect killing device.”...
It’s been a year and a week since Tennessee became the first state in the nation to require the use of the electric chair for executions should the primary means of capital punishment, lethal injection, become unavailable for one reason or another. And it has been about eight months since that new law was challenged in court by ten death row inmates who argue that the mandated use of “Old Sparky” would constitute cruel and unusual punishment. Going from lethal drugs back to electrical currents as a means of killing, the condemned contend, is legally inconsistent with the “evolving standards of decency” that the U.S. Supreme Court employs in Eighth Amendment cases....
In March, Utah governor Gary Herbert signed a law to reinstate the firing squad as a legal method of execution in his state. Utah had abandoned the method in 2004 only to be swayed back by a shortage of lethal injection drugs. Herbert called the punishment “a little bit gruesome,” but the practical concerns were overwhelming; even if the state can find lethal injection drugs, defending them in court would be expensive, and Utah already has in place a formal protocol for death by firing squad. It involves a blindfold, sandbags, four loaded rifles, and one with a non-lethal wax bullet so executioners will never know who fired the fatal shots.
Lawmakers have publicly considered the firing squad as a backup plan for lethal injections in Arkansas, Missouri, South Carolina, and Wyoming. Idaho maintained the method as an option until 2009. It is on the books in Oklahoma, as a fourth option after lethal injection, nitrogen gas, and the electric chair. The firing squad has consistently been found to be more reliable than many of the alternatives. Botches — in the form of bullets that miss the heart — have been rare. In 1938, a Utah murderer named John Deering allowed doctors to hook him up to an electrocardiogram as he faced the guns. His heart stopped 15.6 seconds after the bullets hit. Lethal injection, at its fastest, takes minutes.
Long-time readers know that I have been talking for a long time about the need for states (and Congress) to get serious about alternatives to lethal injection for carrying out death sentences. But now, nearly a decade after lethal injection protocols were starting to be subject to serious legal scrutiny, it has taken a drug shortage and still more SCOTUS litigation to get serious consideration of execution alternatives. But I fear, based in part on the oral argument in Glossip, that the latest round of Supreme Court litigation is not likely to require many more states to get much more serious about finding other viable methods of state killing.
"The GOP should turn its attention to prosecutorial misconduct"
The title of this post is the subheadine of this notable new National Review commentary authored by Kevin Williamson. The provocative main headline for the piece is "When District Attorneys Attack," and here are excerpts:
Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.
The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency. But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.
But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it. Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign. But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs.
How even same-sex marriage becomes a prison story in incarceration nation
My students never — or perhaps always — get tired of hearing me say that every notable legal or social issue in the United States is always, in some way, a significant sentencing or corrections issue. The latest example proving my point comes from this local article headlined "Prison weddings in Oklahoma on hold until U.S. Supreme Court rules on same-sex marriage." Here is how it gets started:
The state Corrections Department has halted all weddings within prison walls until after a U.S. Supreme Court ruling on whether same-sex couples are guaranteed the right to marry, The Oklahoman has learned.
If the high court rules in favor of gay marriage, corrections officials will alter department policy to allow an offender to marry someone of the same sex, spokeswoman Terri Watkins said. “If same-sex marriages are ruled legal, then the policy will need to be changed. We will follow the law,” she said.
Prison facilities in Oklahoma designate up to two days a year on which inmates are allowed to marry. But the department stopped permitting such ceremonies earlier this year and doesn’t expect to resume until the fall, Watkins said.
The temporary halt drew criticism from Ryan Kiesel, director of the American Civil Liberties Union of Oklahoma, who said a state agency should be following the law as it stands now, not waiting to see if the law changes. “To hit the pause button on marriages performed in prison is completely at odds with what the state of Oklahoma is obligated to do,” he said. “There is simply no justification for what DOC is doing.” Even a temporary delay is an unnecessary restriction and a burden to the engaged couples, he added.
Prisoners have a constitutionally guaranteed right to marry, though states can impose restrictions. In Oklahoma, the prisoner and fiance or fiancee must have the mental capacity to enter into marriage, be at least 18 years old and, if previously married, provide proof of divorce.
Twenty prisoners were married in Oklahoma in 2014 and two have married so far in 2015, Watkins said.
Of the offenders’ pending requests for marriage, none are same-sex couples, Watkins said. The department’s current policy doesn’t address same-sex marriages behind bars, but does prohibit two currently incarcerated offenders from marrying.
Sunday, May 31, 2015
Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
This Fox News piece, headlined "Nebraska AG fighting to block death penalty repeal from reversing death row sentences," highlights the fascinating fight now developing in the Cornhusker state following its formal repeal of its death penalty statutes:
Nebraska's top lawyer is headed to court to prevent the state's sweeping death penalty repeal from reversing sentences of those already on death row -- in the latest flare-up between the legislature and Republican Gov. Pete Ricketts' administration.
The legislature delivered a blow to the governor Wednesday when it voted 30-19 to override Ricketts' veto of legislation that would put an end to capital punishment in Nebraska. With the power play by the state's Republican-dominated legislature, Nebraska becomes the first conservative state in decades to end the death penalty.
But Ricketts' administration is not giving up the fight. While not contesting the ban's impact on future prosecutions, the administration is battling to prevent it from undoing prior death penalty sentences for the 10 inmates currently on death row.
In a written statement, state Attorney General Doug Peterson challenged part of the bill that says the "intent" of the legislature is that any death penalty "imposed but not carried out prior to the effective date of this act" be changed to "life imprisonment." Peterson said: "We believe this stated intent is unconstitutional."
He said that Nebraska's Board of Pardons has exclusive power to change final sentences imposed by courts. "Thus, the Attorney General intends to seek a court decision, at the appropriate time, to definitively resolve the issue of the State's authority to carry out the death sentences previously ordered by Nebraska's courts for the 10 inmates now on death row."
A Ricketts spokesman told FoxNews.com Friday that the governor agrees with the AG's assessment and will pursue the court's legal opinion on the matter as soon as possible....
"My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families," Ricketts said in a statement after Wednesday's vote, which broke across party lines and captured the votes necessary to override Ricketts' veto. The legislature had passed the anti-death penalty bill last week, 32-15.
Immediately after the vote, Republican Sen. Beau McCoy, who was against the ban, announced the formation of Nebraskans for Justice to start a petition drive to get reinstatement on the ballot in November.
But this was the third time the legislature voted to repeal capital punishment, which Republicans against it said no longer held to the values of their party, be it morally or fiscally. "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years," said Sen. Colby Coash, a Republican and death penalty opponent. "This program is broken. How many years will people stand up and say we need this?"
Other senators said they philosophically support the death penalty, but were convinced legal obstacles would prevent the state from carrying out another execution ever again. The last one in Nebraska was a 1997 electrocution. The state lost its practical ability to execute inmates in December 2013, when one of the three lethal injection drugs required by state law expired. Opponents charged that it was a poorly managed and inefficient government program.
Sentencing message sent: blazing a Silk Road for drugs gets you LWOP
A high-profile prosecution of a high-tech drug dealer culminated on Friday with the sentencing of Silk Road creator Ross Ulbricht. This Wired story provides an effective account of the sentencing, and includes these excerpts:
On Friday Ulbricht was sentenced to life in prison without the possibility of parole for his role in creating and running Silk Road’s billion-dollar, anonymous black market for drugs. Judge Katherine Forrest gave Ulbricht the most severe sentence possible, beyond what even the prosecution had explicitly requested. The minimum Ulbricht could have served was 20 years.
“The stated purpose [of the Silk Road] was to be beyond the law. In the world you created over time, democracy didn’t exist. You were captain of the ship, the Dread Pirate Roberts,” she told Ulbricht as she read the sentence, referring to his pseudonym as the Silk Road’s leader. “Silk Road’s birth and presence asserted that its…creator was better than the laws of this country. This is deeply troubling, terribly misguided, and very dangerous.”
In addition to his prison sentence, Ulbricht was also ordered to pay a massive restitution of more than $183 million, what the prosecution had estimated to be the total sales of illegal drugs and counterfeit IDs through the Silk Road—at a certain bitcoin exchange rate—over the course of its time online. Any revenue from the government sale of the bitcoins seized from the Silk Road server and Ulbricht’s laptop will be applied to that debt.
Ulbricht had stood before the court just minutes earlier in navy blue prison clothes, pleading for a lenient sentence. “I’ve changed. I’m not the man I was when I created Silk Road,” he said, as his voice grew hoarse with emotion and cracked. “I’m a little wiser, a little more mature, and much more humble.”
“I wanted to empower people to make choices in their lives…to have privacy and anonymity,” Ulbricht told the judge. “I’m not a sociopathic person trying to express some inner badness.”
Ulbricht’s sentencing likely puts the final seal on the saga of Silk Road, the anarchic underground market the 31-year-old Texan created in early 2011. At its peak, the Dark Web site grew to a sprawling smorgasbord of every narcotic imaginable — before Ulbricht was arrested in a public library in San Francisco in October of 2013. Eighteen months later, he was convicted in a Manhattan court on seven felony charges, including conspiracies to traffic in narcotics and launder money, as well as a “kingpin” charge usually reserved for the leaders of organized crime groups....
Ulbricht’s defense team has already said it will seek an appeal in his case. That call for a new trial will be based in part on recent revelations that two Secret Service and Drug Enforcement Administration agents involved in the investigation of the Silk Road allegedly stole millions of dollars of bitcoin from the site. One of the agents is even accused of blackmailing Ulbricht, and of allegedly selling him law enforcement information as a mole inside the DEA. But the judge in Ulbricht’s case ruled that those Baltimore-based agents weren’t involved in the New York FBI-led investigation that eventually took down the Silk Road, preventing their alleged corruption from affecting Ulbricht’s fate.
Speaking to press after the sentencing, Ulbricht’s lead attorney Joshua Dratel said that Forrest’s sentence was “unreasonable, unjust, unfair and based on improper consideration with no basis in fact or law.” He added: “I’m disappointed tremendously.”
In emotional statements at the hearing, the parents of drug users who had overdosed and died from drugs purchased from the Silk Road called for a long sentence for Ulbricht. “I strongly believe my son would still be alive today if Mr. Ulbricht had never created Silk Road,” said one father whose 25-year old son had died from an overdose of heroin, requesting “the most severe sentence the law will allow.”
In the weeks leading up to his sentencing hearing, Ulbricht’s defense team attempted to lighten his punishment with arguments about his motives and character, as well as emphasizing the Silk Road’s positive effect on its drug-using customers. In more than a hundred letters, friends, family, and even fellow inmates pointed to Ulbricht’s idealism and lack of a criminal history. And the defense argued that Silk Road had actually reduced harm in the drug trade by ensuring the purity of the drugs sold on the site through reviews and ratings, hosting discussions on “safe” drug use, and giving both buyers and sellers an avenue to trade in narcotics while avoiding the violence of the streets.
But the prosecution countered that any protection the Silk Road offered drug users was dwarfed by the increased access it offered to dangerous and addictive drugs. And beyond the two parents who spoke at the Friday hearing, it pointed to six individuals who it claimed had died of drug overdoses from drugs purchased on the Silk Road.
In her statement preceding Ulbricht’s sentencing, Judge Forrest fully sided with the prosecution against the defense’s “harm reduction” argument, arguing that the Silk Road vastly expanded access to drugs. “Silk Road was about fulfilling demand, and it was about creating demand,” she said. “It was market-expanding.”
She also tore into the argument that the Silk Road reduced violence in the drug trade, pointing out that most of the academic papers submitted by the defense to support that argument focused only on the protection for the final buyer of drugs. But that digital remove, she argued, did nothing to prevent violence at any other point in the narcotics supply chain, from production to distribution. “The idea that it’s harm reducing is so very narrow,” she said. “It’s…about a privileged group, sitting in their own homes, with their high speed internet connections.”
The Justice Department also argued in their letter to Judge Forrest that Ulbricht should be made an example of to stop even more Dark Web market kingpins from following in his footsteps. After all, dozens of copycat sites and advancements on the Silk Road market model have sprouted in the years since its takedown, including the Silk Road 2, Evolution, and the currently largest Dark Web black market to survive law enforcement’s attacks, Agora. To combat the spread of those anonymous bazaars, prosecutors asked Judge Forrest to “send a clear message” with a sentence for Ulbricht well beyond the mandatory minimum.
Judge Forrest sided with the prosecution on that point, too, arguing that she needed to create a strong deterrent for the next Dread Pirate Roberts. “For those considering stepping into your shoes…they need to understand without equivocation that there will be severe consequences,” Forrest said.
The defense’s arguments about Ulbricht’s character and his idealistic motives were also undercut by accusations that Ulbricht had paid for the murder of six people, including a potential informant and a blackmailer. Those accusations never became formal charges in Ulbricht’s case — five out of six of the murder-for-hires appear to have been part of a lucrative scam targeting Ulbricht, with no actual victims.
But those murder accusations nonetheless deeply colored Ulbricht’s trial, and strongly influenced his sentence. “I find there is ample and unambiguous evidence that [Ulbricht] commissioned five murders to protect his commercial enterprise,” Forrest said, leaving out one alleged attempted murder for which Ulbricht was charged in a different case.
With those attempted murders as context, Forrest was merciless in her assessment of Ulbricht’s seeming multiple personalities: the altruistic and admirable young man described in the letters sent to her as evidence of his character, versus the callous drug lord she saw in his actions. “People are very complicated, and you are one of them,” she said simply. “There is good in you, Mr. Ulbricht. There is also bad. And what you did with the Silk Road was terribly destructive.”
May 31, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)
Friday, May 29, 2015
Highlighting that GOP candidates are so far way ahead of candidate Hillary Clinton on mandatory minimum reforms
Jacob Sullum has this new Reason posting which highlight that, so far, two high-profile Republican candidate for President have had more interesting and important things to say about mandatory minimum reform than the presumptive Democratic nominee. The piece is headlined "Paul and Cruz Are Running to Clinton's Left on Sentencing Reform: The presumptive Democratic nominee wants to do something about mandatory minimums but won't say what." Here are excerpts:
In its story on the repeal of Nebraska's death penalty,The New York Times notes that "liberals and conservatives have been finding common ground on a range of criminal justice issues in Washington and around the country." One example it cites: "On the presidential trail, Hillary Rodham Clinton and Senators Ted Cruz and Rand Paul have all called for easing mandatory minimum sentences." That is literally true, but the implied equivalence is misleading, since the two Republicans are advocating specific reforms, while Clinton has not ventured beyond vague generalities...
Although Clinton refers to "measures," she cites just one: the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, which she cosponsored six months after it was introduced. That bill, which would have eliminated the sentencing disparity between crack cocaine and cocaine powder, did not go anywhere. Three years later, Congress almost unanimously approved a law that reduced crack penalties, although they are still more severe than the penalties for powder. If you combine Clinton's talk about reform with her end note referring to the 2007 bill, you might surmise that she thinks the smoked and snorted forms of cocaine should be treated the same. But as far as I know she has not said that explicitly or endorsed any other specific change in sentencing.
By contrast, Paul on Cruz are both on record as supporting substantial sentencing reforms, including, in Paul's case, effectively abolishing mandatory minimums. "I am here to ask that we begin today the end of mandatory minimum sentencing," Paul said at a Senate Judiciary Committee hearing in 2013. On Bill Maher's HBO show last fall, Paul declared, "I want to end the war on drugs because it's wrong for everybody, but particularly because poor people are caught up in this, and their lives are ruined by it." I have never heard Clinton take a position halfway as bold as those, and I doubt I ever will.
It is pretty striking when self-identified conservatives seeking the Republican presidential nomination are more credible on criminal justice reform than the presumptive Democratic nominee. Paul in particular is not only bolder than Clinton on this issue, which is traditionally identified with left-leaning Democrats, but more passionate as well.
Thursday, May 28, 2015
US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
Regular readers are likely to recall the remarkable series of opinions issued by US District Judge John Gleeson in recent years in which the judge has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. Now I have learned, thanks to this great new Margy Love post at the Collateral Consequences Resource Center, that Judge Gleeson's latest opinion examines the collateral workplace consequences of an old federal fraud conviction in the course of ordering expungement. Here is how the must-read opinion in Doe v. US, No. 14-MC-1412 (EDNY May 21, 2015) (available here), starts and ends:
Jane Doe filed an application on October 30, 2014, asking me to expunge her thirteen-year old fraud conviction because of the undue hardship it has created for her in getting — and especially keeping — jobs. Doe gets hired to fill home health aide and similar positions only to be fired when her employers learn through subsequent background checks about her conviction. Since the conviction was for health care fraud, it’s hard to blame those employers for using the conviction as a proxy for Doe’s unsuitability.
However, even if one believes, as I do, that employers are generally entitled to know about the past convictions of job applicants, and that their decisions based on those convictions are entitled to deference, there will nevertheless be cases in which all reasonable employers would conclude that the conviction is no longer a meaningful consideration in determining suitability for employment if only they had the time and the resources to conduct a thorough investigation of the applicant or employee.
I have conducted such an investigation, and this is one of those cases. In addition to presiding over the trial in Doe’s case and her subsequent sentencing, I have reviewed every page of the extensive file that was created during her five years under probation supervision. I conclude that the public’s interest in Doe being an employed, contributing member of society so far outweighs its interest in her conviction being a matter of public record that the motion is granted and her conviction is expunged....
Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully.
The seemingly automatic refusals by judges to expunge convictions when the inability to find employment is the “only” ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion. The so-called “ban the box” practice, in which job applications no longer ask the applicant whether he or she has been convicted of a crime, is becoming more prevalent. There is an increasing awareness that continuing to marginalize people like Doe does much more harm than good to our communities.
Accordingly, Doe’s application for an order expunging her conviction is granted. It is hereby ordered that the government’s arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility, and that any electronic copies of these records or documents and references to them be deleted from the government’s databases, electronic filing systems, and public record. Doe’s real name is to be removed from any official index or public record. It is further ordered that the records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation. The government and any of its agents may not use these records for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose.
Finally with respect to the relief granted here, I welcome the input of the parties. My intention is clear: no inquiry of the federal or state government by a prospective employer should result in the disclosure of Doe’s conviction. Effectuating that intent without unduly burdening those governments or impairing their legitimate law enforcement interests is not so clear, at least not to me. Thus I welcome any proposed modifications to the relief set forth above, and of course any such proposals by the government would not be regarded as a waiver of its opposition to my decision to expunge the conviction.
It will be interesting to see how the Justice Department responds to this decision, and also how the Second Circuit will consider this matter if (when?) the feds appeal.
"Do the Supreme Court and other federal courts need a watchdog?"
The question in the title of this post is from the headline of this Lyle Denniston story at Constitution Daily discussing a notable new proposal by Senator Charles Grassley to create an inspector general for the judiciary. Here are excerpts from the piece:
Acting within the judicial sphere, the Supreme Court and the lower federal courts are assured of independence by the dual protection of lifetime tenure for the Justices and judges, and the guarantee that they can keep their jobs unless they commit a “high crime or misdemeanor” that would justify their removal by impeachment.
But impeachment is a drastic remedy, and the Constitution deliberately makes it hard to bring about. That gives the Justices and judges, in their day-to-day work, the freedom to regulate their own ethical conduct. Congress has given the judges some rules for when they should not take part in a decision because of a conflict of interest. But the Supreme Court has largely exempted itself from those rules, preferring to impose some self-limiting restraints. And that streak of independence by the Supreme Court from time to time rankles some members of Congress, who would like to do something about it.
The latest idea in Congress to impose some restraint on judicial behavior has just been introduced by the chairman of the Senate Judiciary Committee, Iowa Republican Charles Grassley. His idea is to create the office of “inspector general,” a kind of super watchdog, inside the judicial branch. It works in the Executive Branch, he says, and so there is no reason it should not work in the judiciary, too.
While the senator appears to be most interested in having someone to monitor serious misconduct within the judicial branch, perhaps as a prelude to impeachment, the constitutionally risky part of his proposition is to make this new watchdog a monitor of judicial ethics. That, of course, is part of the title of his new bill, the Judicial Transparency and Ethics Enhancement Act.
As Grassley has fashioned the terms of this office, the watchdog would not be a creature entirely of the judicial branch. The Chief Justice would name the “inspector general,” but the bill specifies that an appointment would only come after “consultation” with the leaders of the Senate and the House. Is that a form of veto power? Or would the Chief Justice be free to ignore any legislative input?
And, on the all-important question of removal of such an appointee from office, the Chief Justice could do so but would be required to give his reasons to both houses of Congress. Is that a sign that Congress would not quite trust the Chief Justice to use that authority?
While the Grassley bill says explicitly that the new “inspector general” would have no power to “investigate or review any matter that is directly related to the merits of a decision or procedural ruling” by any federal court, the officer would have explicit authority to “conduct investigations of alleged misconduct in the Supreme Court that may require oversight or other action” by Congress or by the judiciary itself. (Similar investigative power would exist for lower courts, too.)
That investigative power is not spelled out in the bill, so it presumably would be up to the “inspector general” to define the kind of “misconduct” to be monitored. Would it only be a “high crime or misdemeanor” of the kind sufficient to justify impeachment? Would it have to be criminal behavior? If not either of those, would it be a breach of some ethical principle or norm. and, if so, defined by whom?
Policing ethics is not a process that lends itself to nice precision. What is “good” or “bad” behavior by a judge? The Constitution itself specifies that federal judges may keep their jobs “during good behavior.” But the only constitutional definition of behavior contrary to that is “high crimes and misdemeanors,” in the impeachment provision; it is not further clarified.
Wednesday, May 27, 2015
Feds seeking LWOP sentence for Silk Road creator Ross Ulbricht
As reported in this Wired piece, "headlined "Silk Road Prosecutors Ask to 'Send a Message' in Ulbright Sentencing," the federal government has now asked for the toughest possible sentence for the defendant convicted of creating the on-line drug market known as Silk Road. Here is part of the story:
Ross Ulbricht's billion-dollar black market Silk Road was in many ways the first of its kind, blending encryption and online drug sales in a business model that plenty of other online drug lords have since sought to emulate. So as Ulbricht’s sentencing for running that massive narcotics-selling experiment approaches, the Department of Justice wants to make an example of Ulbricht’s punishment, too.
Ahead of Ulbricht’s sentencing Friday, prosecutors in his case have sent the judge a 16-page letter asking that Ulbricht be given the maximum possible punishment of life in prison. And one of the reasons for that harsh sentence, the Department of Justice attorneys argue, is to “send a clear message” to anyone who would follow in Ulbricht’s footsteps and create the next Dark Web drug market.
“Ulbricht’s conviction is the first of its kind, and his sentencing is being closely watched,” the prosecution’s letter reads. “The Court thus has an opportunity to send a clear message to anyone tempted to follow his example that the operation of these illegal enterprises comes with severe consequences.”
That deterrence argument is just one in a series of calls for a life sentence made by the prosecution in its letter. At other points, it lists the details of six deaths it argues were caused by drug overdoses facilitated by the Silk Road’s anything-goes drug sales. It rebuts the positive arguments about Ulbricht’s character made by the defense, as well as the over 100 letters from friends, family, and even fellow inmates about Ulbricht’s character, pointing to his cold-blooded recording of his attempted murders of enemies in the journal found on his laptop. And it counters the argument made in the defense’s pre-sentencing letter to the judge: That the Silk Road actually reduced harm for drug users with a rating and review system that assured drugs’ quality and purity....
Indeed, several iterations of the Silk Road have come and gone in the two short years since it went offline. Those copycat sites have included the Silk Road 2, which was shut down in law enforcement’s dark web purge last fall, and Evolution, a giant black market for drugs, guns, and stolen financial information whose leaders absconded with users’ funds in March. Today the black market site Agora reigns as the largest black market still online, with tens of thousands more products listed for sale than the Silk Road ever offered.
In its letter, the Silk Road prosecution points to the difficulty of tracking down and punishing the creators of those markets as one more reason that Ulbricht should be imprisoned for life: If anonymous market administrators can’t be easily caught, perhaps they can be deterred from a life of Dark Web crime by their fear of Ulbricht’s fate. “Although the Government has achieved some successes in combating these successor dark markets, they continue to pose investigative challenges for law enforcement,” reads the letter. “To the extent that would-be imitators may view the risk of being caught to be low, many are still likely to be deterred if the stakes are sufficiently high.”
The government's full sentencing memorandum is available at this link.
Prior related posts:
- You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
- Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
- Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
"A new report could have a big impact on New York’s prison population — if anyone pays attention"
The title of this post is the astute subheadline of this effective Marshall Project piece by Beth Schwartzapfel talking about a sentencing reform report finally released in New York. Here are excerpts:
A new report by some of New York’s key criminal justice players recommends major changes to the state’s sentencing system. The report, which [is available here], would reduce the length of prison sentences and broaden eligibility for probation and other alternatives to incarceration for about one-third of the felony convictions New York hands down each year. The report would also end the state parole board’s traditional role as the arbiter of when, exactly, prisoners go home.
With more than 50,000 people imprisoned in New York State, even small sentencing changes can make a big difference. “If you increase the time served even by three months across 10,000 people, you’re going to generate a whole lot more imprisonment,” says Martin Horn, executive director of the New York State Sentencing Commission, which produced the report.
Jonathan Lippman, chief judge of the state’s highest court, established the commission in 2010 to craft a simpler, more transparent sentencing scheme. “He did not specifically charge us to reduce the prison population,” Horn says. “If that turns out to be a side benefit, that’s terrific.”
At this point, the commission’s recommendations are just that — recommendations. The suggested changes were compiled into a piece of draft legislation that the committee has submitted to the state legislature. But the bill so far has no sponsor, and the prospect of fewer prison beds — and, by extension, fewer prisons — has traditionally faced fierce opposition by the New York state correctional officers union and by legislators representing the upstate communities where most of the state’s prisons are located. As it is, upstate District Attorney Kathleen Hogan, who served on the Commission, says she would not support the legislation. “I would support the idea of migrating to determinate sentences, but I think that the numbers are too low,” she told The Marshall Project. Gov. Andrew Cuomo has not said whether he will support the proposals.
New York’s body of sentencing laws is a patchwork, with the history of the state’s changing politics woven into it and over it. As a result, the new report says, sentencing is “confusing and misleading” for prisoners and victims alike.
Historically, New York State’s sentences were all indeterminate: a judge could hand down a range of years that a prisoner might serve (such as 1-to-3 or 5-to-15). When during that window the person would actually go home was unpredictable: it was up to a parole board.
The changes began in 1995 under Gov. George Pataki. The nation had just kicked off a federally-funded prison-building boom, and a get-tough attitude prevailed. Pataki proposed eliminating parole for those convicted of violent felonies. Under the resulting law, judges handed down determinate sentences — a specific number of years, with very little wiggle room — and they were long.
In the 2000s, the public began calling for a change to the 1973 Rockefeller drug laws, which mandated draconian sentences like 15 years to life for even low-level drug crimes. The resulting reforms in 2004 and 2009 eliminated indeterminate sentences for most drug crimes, too.
So now, sentences for violent felonies and drug crimes are fixed, and sentences for everything else depend on the parole board. The crimes still subject to the parole board’s discretion are a hodgepodge, from filing a false tax return to second-degree stalking. The commission’s report is aimed at these crimes — class C, D, and E felonies — considered “non-violent” under the law but not always so in reality. About 5,500 out of the 14,000 people who enter the New York State prison system each year are convicted of these crimes.
The commission, composed of judges, victims’ representatives, professors, and attorneys, recommended bringing these sentences into line with those for other crimes by eliminating the parole board’s discretion. They suggested a new matrix of sentence lengths that judges can hand down, eliminating mandatory minimums for a wide range of crimes and expanding the number of crimes eligible for alternatives to incarceration like drug treatment and community service. They also recommended much shorter terms of supervision once people are out of prison; for most offenders, researchshows that longer periods on parole do not improve public safety but do increase the odds that someone will go back to prison for a technical violation....
Similar recommendations by the 2007 O’Donnell Commission, established by Gov. Eliot Spitzer, never gained any legislative traction, in part because the recommended sentence ranges in that report were too harsh, Horn says: “The Assembly rejected that. They felt those maximums were too high, were too broad.”
This time around the opposite might be true; with these recommendations shaving months off of thousands of sentences, district attorneys and other tough-on-crime advocates might push back. Lake George District Attorney Kate Hogan submitted a letter — included as an addendum to the report — expressing “grave concerns” about the shortened sentence ranges. She told the Marshall Project that reducing the maximum penalty available for certain crimes “discounts plea bargaining in its entirety. No one pleads the maximum. That’s how you incentivize someone to resolve a case by plea.”