Saturday, July 30, 2016
Judge Jack Weinstein authors mega-opinion threatening to find sentence unconstitutional if offender not placed in certain prison(!?!?)
A number of helpful reader alerted me to this notable local story describing the latest remarkable (and legally suspect?) sentencing opinion by US District Judge Jack Weinstein. The piece is (inaccurately) headlined "Brooklyn judge says no prison for convicted child molester," and here are the reported details:
A Brooklyn federal judge on Thursday urged the U.S. Bureau of Prisons to hold a convicted child molester in a medical facility and said he would find the 15-year mandatory minimum sentence unconstitutional if the bureau doesn’t comply.
The apparently unprecedented move by U.S. District Judge Jack Weinstein, who said defendant “D.W.” — identified on the court docket as Darnell Washington — had mental problems and would be a suicide risk in the general prison population, reflected the judge’s long-standing criticism of mandatory minimums.
Weinstein said Washington, 27, of Brooklyn, a repeat offender convicted of both child pornography charges and sexual exploitation of a minor, had been abused as a child, raped during an earlier prison stint, identified as gay and was suicidal.
The judge said 15 years in a regular prison would make him “uniquely vulnerable” to abuse or solitary confinement, and amount to cruel and unusual punishment. He said the time should be served at the Federal Medical Center prison in Devens, Massachusetts, where sex-offender treatment is available, or another medical facility.
The Bureau of Prisons is not obligated to follow a judge’s preference, but Weinstein said if his recommendations were ignored and Washington was put in “general population of a medium or high security prison” he was “prepared” to find the sentence unconstitutional.
“The court is required . . . to impose a sentence of fifteen years in prison on this defendant,” Weinstein wrote in his 215-page ruling. “But, it has the responsibility and power to ensure that the sentence is carried out in a civilized way.”
Until I have an opportunity to review the 200+ page opinion in this case (which I cannot yet find on-line), I am not yet prepared to criticize Judge Weinstein's work here. Moreover, now that the judge has imposed the formal sentence, I am not sure he even has any proper jurisdictional basis to declare it unconstitutional if (and when?) prison official do not comply with his placement mandate.
UPDATE: A helpful reader sent me a copy of the full opinion in US v. DW for posting here: Download US v DW
Friday, July 29, 2016
Is it lack of conviction, lack of courage, or just lack of cleverness that leads Dems to be so weak on criminal justice reform advocacy?
In this post on Monday, I predicted we would hear a lot more this week about criminal justice reform from leading Democrats during the DNC than we had heard last week from leading Republicans during the RNC. I suppose that prediction was not entirely mistaken, as both Prez Obama on Wednesday and Prez candidate Clinton on Thursday each had a few lines about criminal justice reform in their speeches. For those who missed the brief mentions of criminal justice in their two+ hours of speechification, here is what was said:
From Prez Obama's speech: "We need to keep making our streets safer and our criminal justice system fairer.... If you want more justice in the justice system, then we've all got to vote, not just for a president, but for mayors and sheriffs and state's attorneys and state legislators. That's where the criminal law is made. And we've got to work with police and protesters until laws and practices are changed. That's how democracy works."
- From Prez candidate Clinton's speech: "We will reform our criminal justice system from end-to-end, and rebuild trust between law enforcement and the communities they serve."
I suppose I was foolish for thinking and really hoping that Democratic leaders would have much more to say than this relative pablum about criminal justice reform circa 2016. And the deliberative decision to prioritize polite CJ reform pablum over actual CJ reform advocacy prompts the (frustration-filled) question in the title of this post. Let me briefly unpack what I mean by this question, hoping to generate some serious and sober discussions on this front:
A lack of conviction?: In light of Prez Bill Clinton's "tough-on-crime" legacy and Prez Obama's milquetoast efforts to reverse course, I am growing ever more convinced that leading Democrats are perhaps just not all that troubled by modern mass incarceration, the aggressive drug war, marijuana prohibition, private prisons, felon disenfranchisement, overcriminalization, inadequate defense funding, wrongful convictions, prosecutorial misconduct or a host of other persistent criminal justice problems that have nothing to do with the hot-button (dog-whistle?) topics of race or guns.
A lack of courage?: I sincerely want to believe that leading Democrats (as well as leading Republicans and independents) really are troubled by modern mass incarceration, the aggressive drug war, marijuana prohibition, private prisons, felon disenfranchisement, overcriminalization, inadequate defense funding, wrongful convictions, prosecutorial misconduct and a host of other persistent criminal justice problems. But if leading Dems do want to see real reform in these arenas, why do they lack the courage to encourage serious discussion of serious reforms? Why thoughout the election season to date has (independent) Bernie Sanders been the only major candidate with the courage to keep talking forcefully about the probems of mass incarceration and to advocate for specific reforms like ending federal marijuana prohibition and the use of private prisons?
A lack of cleverness?: I am never sure if I am comforted or further depressed when thinking that leading Dems genuinely care about criminal justice reform but ultimately lack the ability to speak about these issues in clever and politically shrwed ways to build on (now bipartisan) political interest in significant reforms. For example, Prez Obama could have (and I think should have) added to his statement that he has been pleased to see many more "mayors and sheriffs and state's attorneys and state legislators" in red states as well as blue states committed to innovative justice programming seeking to reduce our nation's over-reliance on incarceration. Similarly, Prez candidate Clinton could have (and I think should have) added to her statement that she would be eager to draw on the work and wisdom of both Republican and Democratic Governors and Attorneys General to identify state-level reforms that have proved most effective at rebuilding needed "trust between law enforcement and the communities they serve."
Thursday, July 28, 2016
"California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."
The title of this post is the title of this lengthy report recently published by the Alarcón Advocacy Center at Loyola Law School, Los Angeles and co-authored by Professor Paula Mitchell, executive director of the Alarcón Advocacy Center, and Nancy Haydt, Board of Governors, California Attorneys for Criminal Justice. The perspective on whether to end or mend the California death penalty is somewhat predictable based on the past work of the authors, and this overview from the document itself provides a summary of its analysis:
California voters will decide the fate of the state’s death penalty this November. There is now a broad consensus that California’s death penalty system is broken. Voters will be asked to choose between two starkly different proposals to address its dysfunction and failures. Competing ballot initiatives will ask voters either to replace the death penalty with life without the possibility of parole, or to double down on the failed system by spending millions more to modify and expand it.
Voters can either support YES on Prop 62, which will replace the death penalty with life without parole and save the state $150 million per year. Or, voters can support Prop 66 to keep the death penalty system and implement multiple changes to how it operates. Each proposition would make substantial and far reaching changes to California’s criminal justice system. But only one can pass into law: if both propositions receive more than 50% of the vote, then the one with most votes will become law and the other will not.
This Report analyzes the competing initiatives. It looks at the current state of the death penalty system in California and analyzes how each initiative will work in practice. In particular it looks at whether the initiatives will achieve their stated goals, and whether there would be other, perhaps unintended, consequences to their passage into law.
This Report concludes that Prop 66’s proposed “fixes” to the current system will cost millions more than the already expensive death penalty system and will not speed up executions. In fact, Prop 66 will only make matters worse by creating more delays and further clogging the state’s over-burdened court system. Prop 66 will add layers of appeals to a system already facing an insurmountable backlog of decades of death penalty appeals waiting to be decided.
Prop 66 contains other provisions that proponents claim will speed up executions, such as keeping the lethal injection protocols secret and out of the public’s purview, exempting them from the Administrative Procedures Act. This and other key features of Prop 66 will certainly be subject to litigation challenging the provisions on constitutional and other grounds, should Prop 66 pass, adding yet more delays to death penalty cases.
The Report further finds that Prop 66 fails to make the constitutional changes required to deliver the results it promises. At the same time, its proposals are so convoluted that they are likely to create many new problems that will not only complicate the administration of the death penalty system, but will also impact and harm the rest of California’s legal system.
This Report finds that Prop 62, by contrast, is straightforward and transparent. It replaces the death penalty with life without the possibility of parole, saving the state $1.5 billion in the next ten years alone. Prop 62 requires inmates to work and increases the victim compensation rate. Prop 62 ensures that the state never executes an innocent person, without jeopardizing public safety.
US Sentencing Commission releases big new report urging reform of career offender enhancements
As detailed in this official press release, the US Sentencing Commission today released a big new report (running over 100 pages!) under the title "Report to the Congress: Career Offender Sentencing Enhancements." Here is how the press release summarizes this important new release from the USSC:
The United States Sentencing Commission (“Commission”) issued a Report to the Congress: Career Offender Sentencing Enhancements, analyzing career offenders’ prior criminal history, incarceration terms and recidivism rates.
Chief Judge Patti B. Saris, Chair of the Commission, stated, “The Commission’s research shows that there are important differences between violent career offenders and drug trafficking career offenders. Based on these findings, Congress should amend the statutory criteria such that career offender status would not be based solely on drug trafficking offenses.”
Currently, a defendant qualifies as a career offender if he or she: 1) is convicted of an offense that is either a crime of violence or a controlled substance offense; and 2) has at least two prior felony convictions. Career offenders face longer incarceration terms, receiving an average sentence of more than 12 years (147 months). As a result of these longer sentences, career offenders now account for more than 11 percent of the total federal prison population. Yet, career offenders are increasingly receiving sentences below the federal sentencing guideline range, often at the request of the government. The research also shows that, compared to “drug trafficking only” offenders, violent career offenders generally have a more serious and extensive criminal history, recidivate at a higher rate, and are more likely to commit another violent offense in the future. In fiscal year 2014, 45% of “drug trafficking only” offenders received sentences that were reduced at the government’s request.
In fiscal year 2014, nearly three-quarters (74.1%) of career offenders were convicted of a drug trafficking offense. Drug trafficking offenders often face higher statutory maximum penalties, including life imprisonment. These offenders were also more likely to receive a sentence below the federal sentencing guideline range.
Earlier this year, the Commission voted unanimously to amend the definition of “crime of violence” in the federal sentencing guidelines, with an effective date of August 1, 2016. Chair Saris added, “Based on the report’s findings and recommendations, Congress should adopt a new, single definition of ‘crime of violence’ that is consistent with the Commission’s revised approach.”
New Fair Punishment Project report laments frequent and persistent use of juve LWOP in one Michigan county
In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And the first big project of the FPP was this interesting report highlighting the history of Philadelphia frequently using life without parole sentences for juvenile murderers. Now, as reported via this blog posting, FPP has another notabe report on this topic focused on another region another northern state. Here are the details (and links) via the start of the blog posting:
A new report [focused on Michigan juvenile sentencing realities] highlights Wayne County’s frequent use of juvenile life without parole (JLWOP) sentences, calling the county an “extreme outlier” in its use of the punishment. The report also criticizes D.A. Worthy’s decision, which was announced Friday, to again seek life sentences for at least one out of three individuals currently serving this sentence.
The report urges District Attorney Kym Worthy to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively, and that the punishment is only appropriate in the rarest of cases where a juvenile is determined to be “irreparably corrupt.”
The report, Juvenile Life Without Parole in Wayne County: Time to Join the Growing National Consensus?, notes that Wayne County is responsible for the highest number of juvenile life without parole sentences in the country now that Philadelphia District Attorney Seth Williams has recently announced that he will not be seeking LWOP sentences for any of the individuals previously sentenced to JLWOP there.
Currently there are more than 150 individuals serving JLWOP in Wayne County. While Wayne County has just 18% of the statewide population, it has at least 40% of the JLWOP sentences in the state of Michigan. Most incredibly, African-Americans are 39% of Wayne County’s population, but more than 90% of the individuals serving juvenile life with parole sentences from the county are Black. D.A. Worthy’s office obtained 27 JLWOP sentences during her tenure.
How much is federal prosecution of Native American teen for a marijuana offense in Oregon going to cost taxpayers?
The question in the title of this post is my effort to focus a bit more on the fiscal realities surrounding an interesting federal misdemeanor marijuana prosecution discussed in this lengthy local article from Oregon. The article is headlined "Devontre Thomas is 19. He Could Face a Year in Prison. For a Gram of Marijuana. How could this happen in Oregon?". The details here are so interesting for so many reasons, including a recent decision by the defendant not to agree to a plea to what seems to be federal charges less serious than might have been alleged. Here are some details:
Devontre Thomas is 19 years old. In a few weeks, he goes on trial in federal court in Portland. If he loses, he could go to prison for a year. For possessing an amount of cannabis that would fill one joint....
On April 7, 2016, the U.S. attorney for Oregon filed a one-count federal misdemeanor charge against Thomas for possessing "about a gram" of marijuana, according to his public defender, Ruben Iniguez. That's barely enough cannabis to dust the bottom of a Ziploc.
"I've never seen a case like this in my entire time practicing in federal court," says Bear Wilner-Nugent, a Portland criminal defense lawyer for 12 years. "It's outlandish." It's the first time in at least three years that the feds are prosecuting a weed crime in Oregon.
Since then, Oregon voters legalized recreational marijuana. Anyone over 21 can walk into a store and buy up to a quarter ounce — 7 grams — of cannabis. In the first five months of recreational sales, the state collected $14.9 million in marijuana sales taxes. But weed isn't equally legal everywhere in Oregon.
Thomas is accused of screwing up like any other teenager. But his alleged mistake occurred at Chemawa Indian School, a boarding school in the state capital, Salem, operated by the Bureau of Indian Education, an arm of the federal government. Observers say Thomas' prosecution, first reported by KGW-TV, is a poster case for how the nation's drug laws are still stacked against minorities — especially Native Americans. "There's absolutely racial disparity in how these cases are charged," says Amy Margolis, a lawyer at Emerge Law Group, a Portland firm that specializes in cannabis cases. "[Thomas] had the bad luck of being where and who he was."...
The prosecution of Thomas raises questions about the priorities of U.S. Attorney for Oregon Billy Williams, the state's chief federal prosecutor. Among them: Why are federal prosecutors, who claim that Oregon is a den of heroin, meth and opioid trafficking, spending time and resources to go after a teenager for such a small amount of pot? After two weeks of declining requests for comment, Williams finally issued this statement to WW: "We look forward to addressing the facts of the case in an appropriate manner and, most importantly, within the judicial process."
But members of Oregon's congressional delegation say it's alarming that Williams would prosecute the case at all. "I think it's deplorable," says U.S. Rep. Earl Blumenauer (D-Ore.). "What are we doing? Where are our priorities? A kid? Turning his life upside down? They don't have anything better to do to protect young people or Oregonians? It's incomprehensible to me."
As bizarre as Thomas' pot case is in weed-happy Oregon, the place where his alleged offense occurred is just as much of an anachronism. Chemawa, a Native American boarding school, was founded in 1880 and is the longest continually operating boarding school for Native American youth....
Thomas arrived at Chemawa from Madras High School, where he spent his first two years before transferring. He is a member of the Warm Springs tribe, and grew up with his parents and grandparents on the tribe's reservation 105 miles southeast of Portland.... A parent of a fellow Chemawa student described the Thomases as "a good family." His friends say his childhood was that of a normal, loved boy: spending the night at friends' houses, playing basketball on the Madras High junior varsity team....
Rayvaughn Skidmore, 20, also attended Chemawa with Thomas.... Skidmore says Thomas "would always help out his peers and be a leader—showing them what's the right things to do." Skidmore says Chemawa staff members would sometimes drive kids into town to go shopping at Keizer Station Shopping Center or Lancaster Mall in Salem, and he thinks that's when some students would meet up with marijuana connections and bring the substance back to campus.
But when kids on campus were caught with marijuana in their possession, "they'd get sent home." Skidmore says those infractions never resulted in legal charges, even though he knew plenty of classmates who regularly smoked weed. "These other students who are highly abusing any type of marijuana — I don't see why those guys get sent home when they should be prosecuted," he says....
Thomas was never technically arrested for marijuana possession. On March 25, 2015, Iniguez says, a staff member at Chemawa found roughly a gram of marijuana in a student's backpack. That kid said Thomas had sold him the weed. The Marion County Sheriff's Office confirmed that it responded to a call on that date involving Thomas and a juvenile classmate for "delivery" of marijuana.
Nearly a year after a classmate ratted out Thomas, a Chemawa staff member and a police officer drove him to the federal courthouse in Portland to appear before a judge. Lawyers interviewed for this story say it's likely that Thomas is feeling outsized consequences because Chemawa Indian School is under federal jurisdiction....
Retired federal drug prosecutor John Deits says Thomas' case is probably being handled as a federal case because "it's the only jurisdiction that can respond to the charge."
"Nobody else has authority," Deits says. "Marion County doesn't have authority because it's exclusive federal authority. And Indian tribes don't have jurisdiction because it didn't happen on their land."...
The resulting prosecution of Thomas shocks national observers. "He's 19. This is going to potentially haunt him the rest of his life," says Alison Holcomb, director of the American Civil Liberties Union's national Campaign for Smart Justice in Seattle. It's also a stark reminder that the War on Drugs isn't over — even in Oregon.
Observers find it bizarre that the feds have continued to pursue Thomas' case. But U.S. Attorney General Loretta Lynch has been vocal about her desire to keep pot illegal. Local responsibility for prosecuting Thomas falls to Williams, the U.S. attorney for Oregon.... "We are committed to just outcomes in every case," he says. "We look forward to exploring whatever the defense ask that we consider before determining what we believe is an appropriate outcome."
Other federal officials are critical of the prosecution. "The federal government hasn't prosecuted a marijuana-possession case in Oregon in five years," says U.S. Sen. Jeff Merkley (D-Ore.). "Situations like this are best left to be handled by the state."
Blumenauer, who as an Oregon congressman has become one of the nation's loudest voices for marijuana legalization, is enraged. "It is such a powerful symbol of a waste of resources and the inequity of the system," says Blumenauer, "because you and I can walk around in Portland, or in states where it is illegal, and find people using it. To single him out, to proceed with this, to ignore real problems that are killing people…" He pauses. "I'm sorry," he finally says. "I'm getting carried away. It's incomprehensible to me. I'm just sorry that Mr. Thomas is caught up in it."
The people surrounding Thomas in the federal courthouse in Portland on July 8 — Assistant U.S. Attorney Jennifer Martin, U.S. District Chief Justice Michael Mosman, three functionaries and a probation officer — expected Thomas to plead guilty to drug possession and enter a six-month diversion program. But a few moments earlier, Thomas' public defender, Iniguez, hustled into the courtroom with Thomas to announce a change of plans.
"He's not going to be pleading guilty today," Iniguez said. Martin, the prosecutor, looked shocked. "We want to go to trial?" she asked, flummoxed. "If we're making a federal case out of it," said Iniguez, sneaking in a smile, "we'll make a federal case out of it."
Holcomb, of the national ACLU, speculates that Thomas' last-minute decision not to plead guilty may show a steadfastness on his part to prove that he's no different from any other Oregon teenager who messed around with pot. "Devontre's response, to me, indicates a genuinely felt sense of unfairness," Holcomb says. "That it is unfair that he's being charged in federal court for this. It's the latest in a string of dramatic examples of how deeply people are feeling about unfairness and inequality…it sounds like that bubbled up for Devontre."...
Thomas is scheduled for trial Sept.13.
Like nearly all federal prosecutions that become media stories, I sense that this press account is revealing only the tip of an iceberg backstory. For starters, though subject formally only to a federal misdemeanor possession charge, the facts described here suggest that the defendant could have (and some might even say should have?) been subject to a federal felony marijuana distrubution charge. In addition, it seems the feds were seemingly eager to resolve the case through a plea that would prevent the defendant from serving any time or having a felony record. But now it seems that the defense may be gearing up for contesting the charges factually or perhaps constitutionally (or perhaps even via jury nullification if other avenues of defense falter).
I probably could go on and on about this case, and it is certainly one I will be keeping an eye on in the coming months. But, as suggested in the title of this post, whatever else one thinks about this case, I cannot help but wonder how many federal taxpayer dollars will end up being spent on this (minor?) matter.
July 28, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)
Wednesday, July 27, 2016
John Hinkley now to be freed from a psychiatric hospital, now 35 years after his crime and verdict of not guilty by reason of insanity
As reported in this Reuters piece, "John Hinckley Jr., who wounded U.S. President Ronald Reagan and three other people in a 1981 assassination attempt prompted by his obsession with actress Jodie Foster, can be freed from a psychiatric hospital to live with his mother, a federal judge ruled on Wednesday." Here is more about this notable ruling in perhaps the highest-profile insanity case of all time:
U.S. District Judge Paul Friedman said Hinckley, 61, who was found not guilty by reason of insanity in a 1982 trial, no longer posed a danger to himself or others. He said Hinckley could be released from St. Elizabeth's, a government psychiatric hospital in Washington, as soon as Aug. 5, subject to nearly three dozen conditions. "Since 1983, when he last attempted suicide, he has displayed no symptoms of active mental illness, exhibited no violent behavior, shown no interest in weapons, and demonstrated no suicidal ideation," Friedman said of Hinckley in a 103-page opinion.
In addition to Reagan, Hinckley's attack wounded presidential press secretary James Brady, a policeman and a Secret Service agent. It helped launch the modern gun control movement, as Brady and his wife, Sarah, founded what is now known as the Brady Campaign to Prevent Gun Violence after he was left permanently disabled. The Bradys' support helped the Brady Handgun Violence Prevention Act become law in 1993, imposing federal background checks on gun purchases and a five-day waiting period.
The Hinckley verdict also led several states to rewrite their laws making it more difficult to use the insanity defense while the U.S. Secret Service tightened its protocols for presidential security.
Upon his admission to St. Elizabeth's, doctors diagnosed Hinckley with depression and psychosis - two maladies they say have been in remission for years. Friedman said Hinckley will be required to spend at least a year living with his mother, Jo Ann, 90, in Williamsburg, Virginia, about 130 miles (210 km) south of Washington, where he has been making increasingly long furlough visits for several years.
If Hinckley's treatment team approves, he may then move into his own residence by himself or with roommates, Friedman said. He also said if Hinckley's mother becomes unable to monitor him in her home, his brother or sister will be required to live there with him until the hospital determines an alternate plan. In a May story about Hinckley's life, Washingtonian magazine cited neighbors in her gated community who liked Mrs. Hinckley but did not want him living there.
Hinckley had unsuccessfully sought jobs in Williamsburg at places such as Starbucks and a Subway sandwich shop and tried to become involved in volunteer programs in the town, Washingtonian said. He eventually took a volunteer job in the library of a psychiatric facility in Williamsburg. Hinckley's behavior during his furlough visits has been unimpeachable aside from a few occasions, the judge wrote. Twice in 2011, Hinckley lied to hospital staff about where he had been.
Friedman's order imposes nearly three dozen conditions, including a requirement that Hinckley meet with his psychiatrist in Washington monthly and notify the Secret Service when he travels for the appointment. He is barred from making contact with Foster or her family, Reagan's family and relatives of the other victims, and he is required to either work or volunteer at least three days per week. He is restricted to a 50-mile radius of Williamsburg and must make information about his mobile phone, vehicle and Internet browsing history available to his treatment team and law enforcement.
The petition for release from Hinckley was supported by his doctors but opposed by U.S. prosecutors. A spokesman for the U.S. Attorney's office in Washington did not immediately respond to a request for comment, nor did Hinckley lawyer Barry Levine. Hinckley was a 25-year-old college dropout with vague aspirations of a musical career when he fired at Reagan. He had become obsessed with Foster and the Martin Scorsese film "Taxi Driver" in which she played a teenage prostitute. Hinckley began to identify with the film's main character, Travis Bickle, who planned to assassinate a presidential candidate, and spent several years trying to make contact with Foster, who was a student at Yale University in Connecticut.
On March 30, 1981, Hinckley wrote Foster a letter detailing his plans to kill Reagan in an effort to win her over. Later that day, Hinckley approached Reagan outside the Washington Hilton Hotel and opened fire. Reagan suffered a punctured lung but recovered relatively quickly. Brady's death in 2014 was attributed to his wounds but federal prosecutors said the following year they would not charge Hinckley with his murder.
Foster has refused to comment publicly on Hinckley since addressing it in 1981, and a publicist for the Academy Award-winning actress did not immediately respond to a request for comment on Wednesday.
The full 103-page opinion in US v. Hinckley is available at this link.
Some prior related posts:
- Three decades after shooting the President, John Hinckley's freedom still debated
- As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?
July 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Spotlighting the travesty of how the Eleventh Circuit is handling Johnson claims
I highlighted in this post here last week the potent opinions by a number of Eleventh Circuit judges explaining why they think the Circuit's precendents for dealing with prisoner petitions based on the Supreme Court's landmark ruling in Johnson v. United States, 133 S. Ct. 2551 (2015), are so very wrong and unjust. A helpful reader made sure that I did not miss this recent Bloomberg commentary on this topic authored by Noah Feldman headlined "This Is What 'Travesty of Justice' Looks Like." Here are excerpts:
Call it Scalia’s revenge. In one of the last cases that he authored before he died in February, Justice Antonin Scalia convinced his colleagues to strike down a key clause of the Armed Career Criminal Act because it was unconstitutionally vague. As a result, thousands of convicted felons are now asking courts to have their sentences reduced.
The legal rules for considering such post-conviction requests are tricky and technical. But in most of the country, prisoners are getting another day in court to have their ACCA convictions reviewed in the light of the new legal principle. In the Eleventh Circuit, which includes Alabama, Georgia and Florida, the process has gone badly awry [and] a judge on the circuit's court of appeals cried foul, calling for a fundamental change in how its handling these cases....
Before a prisoner can go back to the district court for what’s called a “second, successive” post-conviction petition, he or she needs special permission from a federal court of appeals. The stakes are high for the prisoners. In some cases, the difference might be between the 15-year minimum imposed on felons with three prior convictions, and a sentence of 10 years or less for fewer convictions.
Consequently, the U.S. Court of Appeals for the Eleventh Circuit has been immersed in the time-consuming process of figuring out who should be allowed a second chance to file a petition in District Court seeking review of their sentence. It's studying presentence reports to ascertain whether any of the prior convictions should still count, and, if so, how that might change the petitioner's sentence. Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.
Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion ... declaring that the process in her court wasn’t working. Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.
To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request. The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means. And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.
What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.
The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit. And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem. But real people are spending potentially many extra years in prison on the basis of an unconstitutional law. That’s wrong. In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.
Tuesday, July 26, 2016
"The Death Penalty and the Fifth Amendment"
The title of this post is the title of this essay authored by Joseph Blocker and just published online by the Northwestern Law Review. Here is part of the introduction:
Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?
The dueling opinions in Glossip v. Gross have brought renewed attention to the constitutionality of the death penalty. In a dissent joined by Justice Ginsburg, Justice Breyer identified “three fundamental constitutional defects” with the death penalty.... Justice Breyer’s dissent marked the first time that two members of the current Court have announced a belief that the death penalty is likely unconstitutional “in and of itself,” and the opinion has justifiably been treated as a significant development.
In a blistering concurrence, Justice Scalia (joined by Justice Thomas) wrote that the dissent was full of “gobbledy-gook,” and that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.” Justice Scalia argued that the Fifth Amendment afforded a textual basis for the capital punishment’s continued constitutionality.... Announcing his concurrence from the bench, Justice Scalia made the point even more strongly, saying that “the death penalty is approved by the Constitution.” He and many others have made some version of this point...
The Fifth Amendment contains prohibitions, not powers, and there is no reason to suppose that it somehow nullifies other constitutional prohibitions — most importantly, the ban on cruel and unusual punishment. The real target of the Fifth Amendment Argument can only be the Court’s longstanding Eighth Amendment doctrine, which is not limited to the punishments considered cruel and unusual at the time of the Constitution’s framing. Unless and until that doctrine changes, the Argument itself carries no weight.
To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so, only that the “constitutional defects” Justice Breyer identifies cannot be dismissed out of hand. Glossip, along with other developments in law and practice, have made the continuing constitutionality of capital punishment a pressing question. That question should be answered without the distraction of the Fifth Amendment.
Monday, July 25, 2016
How much (and what kind of) criminal justice reform talk can we expect to hear at the DNC?
I am going to be off-line much of today, and thus I am genuinely interested in having folks spend the day discussion what I see as the most interesting criminal justice reform question for this work-week. I was not too surprised that we heard relatively little criminal justice reform discussion at the RNC last week, although arguably the emphasis by GOP Prez nominee Donald Trump on being the "law and order" candidate was an indication that the new GOP leader is inclined to get Republicans back to "tough-and-tougher" rhetoric and realities.
Meanwhile, Democratic Prez nominee Hillary Clinton seems likely to be eager to reach out (and motivate) voters interesting in significant sentencing (and police and marijuana) reforms, and these topics even were addressed this past weekend when she officially announced her VP pick Tim Kaine. Consequently, I am expecting to hear a lot more express and significant reform talk at the DNC than at the RNC. But how much, and what will be the main focus and more-frequent "talking points"?
In addition to hoping many folks will respond to this post with predictions about what we will hear at the DNC, I would also love to see folks explain just what they are hoping to hear. So if you could, for example, script two of three sentences that would be in the speech to be given by Clinton or Kaine or others, what would they be?
A few recent related posts:
- "Two Parties, Two Platforms on Criminal Justice: The Republicans nod to reforms, then take a sharp right turn."
- Why Donald Trump's "law and order" vision and voice is so important to advocates of sentencing reform (and marijuana reform)
Sunday, July 24, 2016
Covering VP candidate Tim Kaine's history on crime and punishment issues (especially the death penalty)
The folks at FAMM now have this very helpful and timely webpage reviewing some recent and prior statements by Tim Kaine, the former Viginia Gov and current US Senator whom Hillary Clinton has now picked as her running mate. That page also provides this interesting accounting of "Kaine’s record on criminal justice issues"
- 1999: As Mayor of Richmond, Kaine was a supporter of Project Exile, a program launched in Virginia’s capital city as a response to rising crime rates that moved gun offenses involving drugs and convicted felons out of state courts and into the federal system, where gun offenders would face mandatory minimum sentences. Kaine claimed the program was restoring hope to the city, telling the New York Times, “In Richmond, there has been an intense need for people to become believers in their own community. High crime has been our psychological downer. But Project Exile is driving the crime rate down, and that is starting to make Richmonders believers again.”
- 2005: During his gubernatorial campaign, Kaine’s website highlighted the role of Project Exile in making Virginia’s capital safer: “Richmond’s success in reducing violent crime was built in part on Project Exile. Project Exile is based on a strong working relationship among federal, state, and local law enforcement officials to maximize the punishment of criminals who commit crimes with guns.”
- 2007: As Governor, Kaine blocked death penalty expansion bills that would allow capital charges to be brought against accomplices and those indirectly involved in first degree murders.
- 2012: During his senatorial campaign, Kaine said he would “continue Senator Jim Webb’s effort to focus attention on the overuse of incarceration in this nation, especially as applied to African-American males.”
- 2014: Senator Kaine supported the Smarter Sentencing Act, saying it “would reduce mandatory minimums for non-violent drug offenders and give judges greater authority to determine the right sentence for the crime – saving billions in taxpayer dollars and putting faith back into our criminal justice system.”
- 2015: Senator Kaine supported the Sentencing Reform and Corrections Act, the most recent major bipartisan attempt at criminal justice reform. He said the country has “an embarrassingly high number of people in prison compared to other countries” and that he believed reform could “reduce the costs of incarceration and promote fairness within our criminal justice system without compromising public safety.”
In addition, a number of mainstream and new media sources have now run a number of articles about Kaine's criminal justice history (most of which, notably, are focused on the death penalty). Here are headlines and links:
From BuzzFeed News here, "Tim Kaine Has A Long, Complicated History With The Death Penalty"
From the Huffington Post here, "As Governor, Tim Kaine Stepped In To Halt The Execution Of A Mentally Incompetent Man"
From the New York Times here, "On Death Penalty Cases, Tim Kaine Revealed Inner Conflict"
From Reuters here, "Kaine's crime-busting past may hurt Clinton's outreach to blacks"
Saturday, July 23, 2016
Split Virginia Supreme Court deems unconstitutional mass effort by Gov to restore felon voting rights
As reported in this local article, the "Supreme Court of Virginia on Friday struck down Gov. Terry McAuliffe’s executive order restoring voting rights to 206,000 felons, dealing a severe blow to what the governor has touted as one of his proudest achievements in office." Here is more about the ruling:
In a 4-3 ruling, the court declared McAuliffe’s order unconstitutional, saying it amounts to a unilateral rewrite and suspension of the state’s policy of lifetime disenfranchisement for felons. The court ordered the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered” under McAuliffe’s April 22 executive order and subsequent orders.
As of this week, 11,662 felons had registered to vote under McAuliffe’s orders. The court gave a cancellation deadline of Aug. 25.
McAuliffe, a Democrat, took the sweeping action in April, saying he was doing away with an unusually restrictive voting policy that has a disproportionate impact on African-Americans. In a legal challenge, Republican leaders argued McAuliffe overstepped his power by issuing a blanket restoration order for violent and nonviolent felons with no case-by-case review.
The court majority found that McAuliffe did indeed overstep his authority. “Never before have any of the prior 71 Virginia governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request,” Chief Justice Donald W. Lemons wrote in the majority opinion. “To be sure, no governor of this commonwealth, until now, has even suggested that such a power exists. And the only governors who have seriously considered the question concluded that no such power exists.”
In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.
“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”...
Republicans have attacked the order as a political power grab, accusing McAuliffe of trying to help his friend and presumptive Democratic presidential nominee Hillary Clinton win a swing state by adding thousands of Democratic-leaning voters to the polls. GOP leaders called the court’s ruling a victory for the rule of law. “He spent 90 days bragging about this being the high point of his governorship,” said Del. Robert B. Bell, R-Albemarle, who’s running for attorney general in 2017. “And the court made it very clear that he acted unconstitutionally.”
In a joint statement, House Speaker William J. Howell, R-Stafford, and Thomas K. Norment Jr., R-James City, said: “Our nation was founded on the principles of limited government and separation of powers. Those principles have once again withstood assault from the executive branch. This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority.” Howell and Norment were two of the plaintiffs behind the legal challenge. They argued that their future election bids could be tainted by participation of invalid voters.
Justices Cleo E. Powell and S. Bernard Goodwyn — the court’s two African-Americans — dissented from the ruling, arguing the plaintiffs lacked standing to bring the case. Justice William C. Mims also dissented over the issue of standing, saying the court lacked sufficient evidence — most notably the governor’s list of the 206,000 felons affected — to fully consider the order’s impact....
Republicans argued McAuliffe lacks the authority to issue blanket restorations, but Attorney General Mark R. Herring and top constitutional scholar A.E. Dick Howard said McAuliffe was on firm legal ground. “The majority’s opinion is terribly disappointing, especially for the thousands of Virginians who will be thrown off the voter rolls after experiencing the joy, excitement, and fulfillment of getting back their voice and their vote,” Herring said in an emailed statement.
McAuliffe’s Democratic allies blasted Republicans for celebrating a legal victory that will block thousands of Virginians from voting. “It’s a sad and disappointing day when the Virginia Supreme Court bows to political pressure from right-wing ideologues who would rather bar citizens from the polls than compete for every vote,” said Anna Scholl, executive director of Progress Virginia. Scholl said the “deciding vote” was Justice Stephen R. McCullough, whom Republicans elected to the Supreme Court this year after refusing to approve McAuliffe’s interim pick, former Justice Jane Marum Roush, for a full term. McCullough sided with the majority....
The legal rebuke comes at an awkward time for McAuliffe, who is scheduled to speak at next week’s Democratic National Convention celebrating Clinton and her newly selected running mate, U.S. Sen. Tim Kaine, D-Va. Clinton praised McAuliffe after the order in April. When he was Virginia’s governor, Kaine declined to issue a blanket rights restoration order like the one pursued by McAuliffe, despite pressure from activists. The Supreme Court ruling referenced Kaine’s position, saying Kaine “correctly understood” he did not have blanket restoration power.
The full opinion from the split Virginia Supreme Court is available at this link.
Michigan prosecutor wants 71-year-old "juve lifer" to still have no chance of parole
This local AP article, headlined "Prosecutor: No sentencing break for Michigan's oldest juvenile lifer," reports on the disinclination of a Michigan prosecutor to be open to considering even the possibility of parole for an elderly prisoner given LWOP more than a half-century ago. Here are the details:
Oakland County prosecutor Jessica Cooper said Friday she'll seek another no-parole sentence for a 71-year-old man who is the oldest so-called juvenile lifer in the Michigan prison system. Sheldry Topp has been in prison for nearly 54 years. He was 17 in 1962 when he ran away from a state hospital, broke into an Oakland County home and fatally stabbed the owner.
Life sentences with no chance for parole are no longer automatic for anyone under 18. Juvenile lifers have a right to new hearings as a result of a U.S. Supreme Court decision. Judges now have discretion and can consider an offender's childhood, education and a variety of other factors.
Prosecutors across Michigan are filing their sentencing proposals this week in more than 350 cases.
The prosecutor said she'll seek no-parole sentences again for 44 people who are in prison, including Topp. She declined to explain her position in Topp's case during an interview with The Associated Press, referring a reporter to a court filing, which wasn't available after business hours.
"When we talk about doing due diligence, we did an incredible amount of due diligence in these cases," said Cooper, a former judge. "The cases that we've been reviewing are not the kids who were at the wrong place at the wrong time. We're talking about stabbings, shootings and strangulations. ... I'm shocked."
Topp, who turns 72 in September, is in a prison in Muskegon. In a recent court filing, attorney Deborah LaBelle said he was in a hospital with heart problems. She couldn't be reached for comment Friday. In 1987 and 2007, the state parole board recommended that Topp's sentence be reduced, but governors declined.
Meanwhile, in Wayne County — the state's largest — prosecutor Kym Worthy said she would seek no-parole sentences again for at least 60 prisoners who were convicted of murder as teens.
Worthy said she'll ask that 81 people be given a certain number of years in prison instead of a no-parole sentence. That could lead to freedom for some who already have been locked up for decades.
Thursday, July 21, 2016
Guest posting from Prof Mark Osler with advice to US Sentencing Commission on revising drug sentencing guidelines
Earlier this month, federal sentencing reform guru Mark Osler informed me that he put together some suggestions for the US Sentencing Commission in response to its request for public comment about proposed priorities. In turn, I urged Mark to put together a guest-post for this space to ensure his insights can be seen outside the Beltway. Here is what he sent my way:
Each year, the United States Sentencing Commission goes through a seasonal cycle; it starts and ends in May, when the Commission publishes proposed amendments (closing out one cycle) while setting out proposed priorities and inviting public comments to begin the next cycle. This year the public comment period lasts until July 25. You can get more complete information at www.ussc.gov.
The proposed priorities for this year are strikingly broad and encouraging for reform advocates. They include some specific items, including “consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c),” but also some fascinating broader priorities. The line that really caught my attention was this one: “the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.”
For those fascinated by federal sentencing, could there be a more enticing invitation?
I have submitted my own comment, which Doug has kindly linked here [down below]. It grows out of the response I got to a New York Times op-ed I wrote in 2014, suggesting that the weight of narcotics used in a conspiracy is a lousy proxy for the culpability of any one conspirator, and that it would be much better to instead simply enhance sentences for those individuals who make the most money from a narcotics operation. After that piece ran, I was surprised at the group I heard from the most: sentencing judges. A few pointed out (correctly) that they had proposed this decades ago, while others simply affirmed the problem with weight of narcotics as the central metric for a drug sentence. And, of course, they had depressing stories to share of sentences they had been forced to give out (pre-Booker) to low-level players in large narcotics organizations.
Here is how my comment begins:
Currently, because of the structure and importance of the Drug Quantity Table at Guideline §2D1.1(c), the primary input of sentence computation in narcotics cases is the weight of the drugs at issue, either by an individual or conspiracy. However, weight of narcotics is not a good proxy for culpability because it unfairly punishes the actions of too many low-level traffickers. If a true kingpin imports 150 kilograms of cocaine into the country and pays a trucker $1,000 to haul it, both of them fall under Guideline §2D1.1(c)(2), which provides for a base offense level of 36. While guideline sections §3B1.1 & 1.2 (distinguishing roles in the offense) provide some level of differentiation, that differentiation will likely be at most a swing of six offense levels.
We all know that the one-off trucker is not nearly as culpable as the kingpin, but the guidelines don’t reflect that because weight-driven sentences are mandated by Guideline §2D1.1(c). Sentencing judges have chafed at the resulting failure of proportionality ever since the beginning of the guideline era.
The false proxy of narcotics weight creates problems with proportionality and disparities because it too often obscures actual role and culpability. Moreover, it imposes a complexity to the guidelines that is unnecessary.
After discussing the benefits and challenges of making such a change, I suggest three alternate ways to amend the guidelines and accomplish this goal.
Perhaps you agree with me, maybe you don’t, or it could be that you think there is a much cleaner route to simplicity, proportionality, and the reduction of disparities. I urge you not only to read the rest of my comment, but to submit your own while the window is still open.
"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"
The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:
The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues. These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates. Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer. The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances. Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States. Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.
As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world. African American and Latino communities suffer even higher incarceration rates. Our incarceration rates increased dramatically in the 1980s and into the 1990s. Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period. Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes. One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest. Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.
This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration. This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration. Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process. This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining. First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements. Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining. This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.
Should we all share Senator Grassley's optimism about federal statutory sentencing reform's prospects?
Long time readers know my hopefulness about significant federal sentencing reform moving through the current Congress has waxed and waned, especially as key leaders and members of both houses of Congress have expressed more or less optimism about the prospects for draft legislation getting full votes. And, as this post a few weeks ago revealed, I have lately been gespecially pessimistic about the prospects for Congress to summon the spirit or find the time to get any reform bill to President Obama's desk.
But this new local article from Iowa, headlined "U.S. Sens. Grassley, Scott optimistic on sentencing reform," prompts me to become a bit more hopeful again. Here are excerpts:
U.S. Sen. Chuck Grassley, joined by a fellow Republican lawmaker from South Carolina, is expressing optimism about the prospects for passing federal criminal sentencing reform legislation.
The senior Iowa senator spoke at a news conference Wednesday at the Des Moines International Airport with U.S. Sen. Tim Scott, who gave a powerful speech on the Senate floor last week in which he described being targeted by police because of he is black. Scott was stopped by law enforcement seven times in one year while he was an elected official, sometimes for speeding, but other times simply because he was driving a new car in the wrong neighborhood or other insignificant reasons, he said.
Scott saluted Grassley's work Wednesday on justice reform issues, saying the proposed legislation has attracted a broad coalition from the far left to the far right. "This is an unusual time when we seem to have the stars aligning," he added. He described the legislation as serving the best interests of communities as well as individuals.
The Sentencing Reform and Corrections Act is authored by Grassley and co-authored by Scott. The package would reduce mandatory minimum sentences for nonviolent drug offenders and would expand prison programs intended to reduce the likelihood that inmates will re-offend. It would also reduce sentences for inmates who successfully complete those programs. In addition, the bill would make changes to the federal justice system, such as allowing people convicted of certain crimes as juveniles to expunge their criminal records if they turn their lives around.
The bill has cleared the Senate Judiciary Committee, which is chaired by Grassley, and is awaiting action by the full Senate. Meanwhile, House Speaker Paul Ryan, R-Wis., has announced the House will consider several separate pieces of legislation to address criminal justice reform. Grassley said the House proposals include addressing such issues as asset forfeiture, but he expressed confidence any differences can be ironed out in a House-Senate conference committee.
Grassley said the legislation responds to Iowans who have expressed concerns about a rising federal prison population, costs of housing them and the possibility that some people with relatively minor criminal backgrounds are receiving lengthy sentences intended for hardcore criminals. "Successfully addressing the different perspectives has not been an easy task, especially if we want to ensure that career criminals and the most violent offenders are not allowed to wreak havoc once again in their communities," Grassley said. "The work that we started more than a year ago has been a thoughtful, bipartisan deliberation that will promote opportunities to reduce recidivism while protecting our communities from violent career criminals."
My prior post expressed fear that the Sentencing Reform and Corrections Act was essentially dead in Congress, but I am certain Senator Grassley knows a lot more than I do about whether it may still have some legislative life left in it. I sure hope so.
Wednesday, July 20, 2016
"How Judges Think about Racial Disparities: Situational Decision-Making in the Criminal Justice System"
The title of this post is the title of this intriguing new article authored by Matthew Clair and Alix Winter from the jounral Criminology and available at this link. Here is the abstract:
Researchers have theorized how judges’ decision-making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system. Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them. By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing.
Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates. To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist. Noninterventionist strategies concern only a judge’s own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws.
We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision-making in organizational contexts.
Why Donald Trump's "law and order" vision and voice is so important to advocates of sentencing reform (and marijuana reform)
Two new commentaries about current politics together help explain why I continue to view GOP Prez candidate Donald Trump as the most important (and also most opaque) national figure with respect to the future direction of a lot of on-going criminal justice reform movements. The full headlines of the commentaries provides a window into my thinking:
From the New Republic here, "The GOP Will Be the Party of Trump for a Long Time: He's not the outsider anymore, but the most important voice in his party."
From the Atlantic here, "The Precarious New Republican Orthodoxy on Crime: Steve Teles explains the genesis of the conservative movement for criminal-justice reform — and how the rise of Donald Trump might bring about its end."
Here are a few passages from these pieces, respectively:
From Jeet Heer: "With the Republican National Convention in Cleveland, Trump’s approach to politics has become squarely mainstream in his party. The Trumpification of the GOP is not likely to go away soon. It’s rooted in some fundamental demographic facts that the party has been struggling with for decades: that it’s increasingly a party of old white people in a nation that is becoming more diverse. Even if Trump loses by a blowout in November, the party is likely to become even more Trumpified because the #NeverTrump people will have left the party — or at least become inactive — while the politicians and activists who are most responsive to his message will have stayed on. That’s how Barry Goldwater conservatism continued to be a force after his epic defeat of 1964, and it’s likely to replicate itself with Trumpism. Like it or not, the GOP will be the Party of Trump for many years to come."
From Steve Teles: Trump [i]s like a throwback to New York in the 1980s.... The Right on Crime movement depends upon, in some important ways, the transformation of the Republican Party into a more consistently anti-statist party in the wake of the Tea Party, combined with the role that evangelical leaders have played in encouraging an emphasis on second chances and forgiveness. Neither of those changes in conservatism is characteristic of the conservatism of Trump. I could imagine him going all-in on a back-to-the-80s, Charles Bronson-ish approach to crime, and if he’s able to rebrand the Republican Party in that way, that would be very troublesome [for those supportive of criminal-justice reform].
Tuesday, July 19, 2016
Federal judge refuses to accept plea of LA County Sheriff Lee Baca for obstruction because of inadequacy of maximum sentence of six months in
As reported in this lengthy Los Angeles Times piece, headlined "Judge throws out ex-L.A. County Sheriff Lee Baca's plea deal, saying six months in prison not enough," a federal judge decided that a high-profile federal defendant had cut too sweet a plea deal to resolve charges of obstruction of justice. Here are the interesting details concerning a rare (but not unprecedented) district court decision:
A federal judge on Monday threw out a plea agreement that would have given former Los Angeles County Sheriff Lee Baca a maximum of six months in prison, saying the sentence was too lenient considering Baca’s role in obstructing an FBI investigation into the county jails. Addressing a downtown courtroom packed with Baca’s supporters, U.S. District Court Judge Percy Anderson said the deal “would trivialize the seriousness of the offenses … the need for a just punishment [and] the need to deter others.”
Baca, 74, had pleaded guilty in February to a single charge of lying to federal investigators. But the former sheriff’s involvement in trying to derail the investigation reached further than that, Anderson said. At stake was what the investigators were trying to expose, Anderson said: an “us-versus-them” culture in which deputies covered up for one another and responded to inmates with enough violence to send them to the hospital.
Six months in prison for the man who ran the Sheriff’s Department “would not address the gross abuse of the public’s trust … including the need to restore the public’s trust in law enforcement and the criminal justice system,” Anderson said.
The judge said he would allow Baca to withdraw his guilty plea, setting a new hearing date for Aug. 1. The maximum sentence for the false statement charge is five years -- the same amount of time that Baca’s former No. 2, Paul Tanaka, received last month after going to trial in a related obstruction-of-justice case. Seven lower-ranking sheriff’s officials who have been convicted and sentenced in the obstruction case received a year and a half to more than three years in prison.
Baca’s plea agreement had called for a sentence ranging from probation to six months in prison. Prosecutors have said they agreed to the deal in part because of Baca’s willingness to plead guilty. Baca’s attorney, Michael Zweiback, argued that the former sheriff should not serve any prison time because he is in the early stages of Alzheimer’s disease.
Baca must now choose among several unappealing options. He could go ahead with the sentencing and accept whatever punishment Anderson has in mind. He could withdraw his guilty plea and go to trial, taking his chances with whatever charges the government might decide to bring. He could negotiate a new deal with federal prosecutors for a longer sentence that the judge would find more acceptable.
After Monday’s hearing, Zweiback said he was disappointed with the judge’s decision but hoped to resume talks with prosecutors. He said that if he cannot reach an agreement that includes a specific sentence, rather than an open-ended guilty plea, he will not leave his client’s fate in Anderson's hands. “At that point, we might as well take our chances at trial,” Zweiback said.
Baca’s Alzheimer’s could be a factor if the case heads to trial and his ability to understand the proceedings deteriorates. The trial could be put on hold if he is declared mentally incompetent. “If the government believes it’s two years in ... getting to trial and sentencing him, that could leave Mr. Baca in very bad shape,” Zweiback said....
Legal experts said Anderson's move was unusual but not unexpected, considering his law-and-order reputation and comments he has made during sentencing in the related cases. “We already knew the defendant was facing a federal judge who believed these kinds of acts were as serious as they come,” said Miriam Krinsky, a former federal prosecutor who was the executive director of a county commission that investigated brutality by jail deputies and who served as a top aide to Baca’s successor, Jim McDonnell, during his first year in office....
Laurie Levenson, a Loyola Law School professor and former federal prosecutor, said Anderson was not likely to be “swayed by sympathy or the emotional aspects of the case.” She said he was likely to be especially unforgiving of law enforcement officials who did not fulfill their duties. “He views this type of abuse of trust more seriously, notwithstanding Baca’s health concerns,” Levenson said.
Federal sentencing law provides that people who are higher up in an organization -- mob bosses, for example — are more culpable than lower-level members, said Joseph Akrotirianakis, another former federal prosecutor now in private practice. “Today’s events are not entirely surprising in light of the sentence that Mr. Tanaka received,” Akrotirianakis said. “That was not a fact known to the government at the time that Baca entered into his plea.”...
Brian Moriguchi, head of the union that represents Sheriff’s Department supervisors, said Baca is responsible for the actions of his subordinates, especially Tanaka, and should receive more than six months considering the sentences the others will serve.
Many sheriff's deputies have been closely watching the criminal prosecutions to see if the punishments for former bosses would approach those of lower-ranking employees following their orders. “It’s not only widespread in the department, it’s widespread in society — the feeling that those who have power seem to be exempt from the same rules as everyone else,” Moriguchi said.
Perhaps previewing coming SCOTUS work in Beckles, four Eleventh Circuit judges make case against circuit's refusal to apply Johnson to guidelines
In this post after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career offender guideline of the US Sentencing Guidelines. Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with that career offender guideline, which in turn has led to most circuit courts finding Johnson-based constitutional problems with sentences based on that guideline.
But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines. I considered this ruling suspect, but an amicus brief I helped put together urging en banc review in Matchett did not led to its reconsideration. As blogged here last month, though, we know have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.
For a variety of reasons, I am expecting that SCOTUS will ultimately agree with the majority of circuits that Johnson's holding applies to the career offender guidelines and thereby reject the Eleventh Circuit's Matchett precedent. What I did not expect was that a number of Eleventh Circuit judges would set forth, in essence, some amicus briefing to SCOTUS in order to explain in detail why they think their own circuit's work in Matchett was wrong. But that is what I see via a series of recent concurring opinions in In Re: William Hunt and In re: Charles Therion Clayton, cases in which a panel felt duty-bound to reject habeas applications due to the Matchett precedent but then followed up with separate opinions by Circuit Judges Wilson and (Jill) Pryor and Rosenbaum and Martin all explaining why they think Matchett is so wrong and so troublesome as we await a SCOTUS ruling in Beckles.
If you have read this far into this post, you probably have some interest in the application of Johnson and its impact on the career offender guidelines, which in turns means you ought to find the time to read all the judicial thoughts shared in Hunt and Therion. I know that is my plan for this evening, and to whet everyone's appetite I will close this post by quoting the closing paragraph authored by Judge Pryor in these cases:
If the Supreme Court decides in Beckles that the residual clause in the career offender guideline is void for vagueness, there may be new hope for the scores of inmates who have tried to obtain relief since Johnson, only to be turned away by this Court based upon Matchett. I hope next time around we will avoid the mistakes I have identified. And I hope that, rather than being behind the march of justice, we, as our nation’s designated guardians, will be at the front.
"Two Parties, Two Platforms on Criminal Justice: The Republicans nod to reforms, then take a sharp right turn."
The title of this post is the title of this timely new piece by Maurice Chammah, which includes a blow-by-blow accounting of how the party platforms have changed on criminal justice issues since 2012. Here is how the piece sets up the comparative look at how time changes platforms:
The 2016 Republican and Democratic party platforms — the GOP’s approved Monday night, the Democrats’ still in draft form — swing hard to the right and left, with Republicans amplifying their traditional positions against gay marriage, abortion, transgender rights, and immigration, and Democrats calling for expanded public healthcare and higher education, and a $15 minimum wage. Platforms are not binding on candidates, but they distill a consensus of the forces within the party at this point in history. That’s particularly clear this year on the subjects of crime and punishment.
In the new Democratic party platform, the fingerprints of the Black Lives Matter movement and Bernie Sanders are apparent, in calls for independent investigations of police-involved shootings, more body cameras, and training in de-escalation. There is a declaration that “states that want to decriminalize marijuana should be able to do so.” There is also a call for the end of the death penalty, something President Obama and Hillary Clinton have not endorsed. Parts of the Democratic draft platform clearly repudiate the tough language their party embraced a generation ago, when their current candidate’s husband was president. The mother of Sandra Bland, who died at a Texas jail last year and became a symbol of the Black Lives Matter movement, is scheduled to speak at their convention next week in Philadelphia.
The Republican document reflects recent tensions in conservative circles. It includes the language of conservatives who call for reducing incarceration — influential Republican patrons like the Koch brothers, politicians like Rick Perry, Rand Paul and Newt Gingrich — but it also includes plenty of traditional invocations of law and order. An ambitious bipartisan sentencing reform effort in Congress, which Sen. Ted Cruz supported and then abandoned, has been whittled down and allowed to languish. And it was opponents of that bill including Senator Tom Cotton of Arkansas and Milwaukee Sheriff David Clarke (who regularly attacks the "myths" of justice reform) who were in the lineup Monday night in Cleveland, where the evening’s theme was “Make America Safe Again.” It was those figures who dominated the party’s televised presentation.
To feel the tension, consider the 2016 passage on mandatory minimum sentences, which says such sentences served a good purpose and should only be rolled back sparingly: "In the past, judicial discretion about sentences led to serious mistakes concerning dangerous criminals. Mandatory minimum sentencing became an important tool for keeping them off the streets. Modifications to it should be targeted toward particular categories, especially nonviolent offenders and persons with drug, alcohol, or mental health issues, and should require disclosure by the courts of any judicial departure from the State’s sentencing requirements."
Conservative criminal justice reformers, who have gathered under the banner of “Right on Crime,” had gotten brief nods to rehabilitation and non-prison sentences for drug crimes into their 2008 and 2012 platforms. An April 2016 resolution they promoted, which was adopted by the Republican National Committee, points out that despite a massive growth in incarceration, many who are released from prison commit new crimes, meaning prisons might not be the best investment in public safety. They added language acknowledging the success of conservative lawmakers in traditionally red states to reduce incarceration and save money. “90% of the prisoners in this country are not federal,” says Ken Cuccinelli, the former attorney general of Virginia, “so it’s meaningful to talk about the experimentation and successes in the states.”
The rift in conservative circles was apparent when the 112 members of the full platform committee edited the document last week in Cleveland. At one point, April Newland, a delegate from the Virgin Islands, proposed adding a line supporting a national registry of child murderers, which had been in the 2012 platform. She described how her brother’s three and five year-old children were murdered by a man who went on to be released from prison, moved near a school, and molested more victims. Other delegates pushed back. “A federal mandate doesn’t work,” Maryland delegate JoeyLynn Hough said. “So, I’m sorry about your family, but I don’t think this is the answer.”
The committee also added support for “mens rea” reform, an effort to force prosecutors to prove a defendant intended to commit a crime, as well as strong language supporting drug treatment programs, particularly for first-time offenders. In other areas, the new platform’s language took a different tack, condemning the Supreme Court for limiting use of the death penalty, and Attorney General Loretta Lynch for her “present campaign of harassment against police forces around the country.”
At one of the hearings, delegate Giovanni Cicione, an attorney from Rhode Island, proposed language encouraging lawmakers to “fairly assess the social and economic costs of the failure of drug prohibition, and recognize that our states are sending a clear signal that a new approach is long overdue.”
“We have created with drug prohibition a multi-billion dollar underground economy, and a generation of Al Capones,” Cicione told the other delegates. “And if you want to respond to the Black Lives Matter protesters, if you want to respond to the families of those police officers who died in Dallas, if you want to respond to the families of Alton Sterling and Philando Castile... we can’t answer these questions without explaining how we demean and weaken law enforcement by forcing them to enforce unworkable laws.”
He admits he may have gone overboard in bringing up Black Lives Matter, and his suggestion failed. North Carolina delegate Ron Rabin worried his state “could be regionally surrounded by states where the use of drugs is legal and they come into our state to harass.” Cicione didn’t expect to win, but he did notice that the the average ages of the yes and no votes were “separated by 40 years,” which to him signalled that reformers will eventually get their way. “Those of us who grew up in a more tolerant environment about drugs are less afraid of them,” he said.
Sunday, July 17, 2016
Ninth Circuit rejects district court's decision to base sentence on drug amount higher than jury's special verdict
A helpful reader made sure I did not overlook the interesting Ninth Circuit panel decision in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016) (available here), which was handed down on Friday. Here is how the helpful reader helpfully summarized the decison: "Somewhat unusually, the jury returned a special verdict finding the defendant responsible for less than 50 g of meth. The Circuit Court vacated his sentence after the District Court based the guidelines range on 4.5 kg and gave a stat max sentence of 20 years. An interesting variation on using (or not) acquitted conduct at sentencing, I think." And here are a few paragraphs from the decision:
The principal question presented is whether the district judge was entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The district court believed it was entitled to do so because “[t]here is no increase in the statutory maximum sentence beyond the 20 years or 240 months that is charged in the [i]ndictment.”....
Some of our sister circuits seem to have held that a jury’s special-verdict finding that the quantity of drugs involved in the crime is less than a particular amount did not preclude the judge from finding a greater quantity for purposes of sentencing. [CITES] But those cases did not directly address the argument raised by Pimentel-Lopez — that the affirmative finding by the jury that the quantity of drugs involved was less than a specific amount precluded a contradictory finding by the district judge during sentencing....
Some of our sister circuits seem to have assumed that the juries’ findings merely acquitted defendants of possessing higher quantities of drugs, and that may have been warranted on the record before them.... Here, by contrast, the record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances.
Friday, July 15, 2016
"Prosecuting Collateral Consequences"
The title of this post is the title of this notable new paper authored by Eisha Jain and recently posted to SSRN. Here is the abstract:
Criminal law scholars have long agreed that prosecutors wield vast and largely unreviewable discretion in the criminal justice system. This Article argues that this discretion now extends beyond criminal penalties and broadly reaches civil public policy decisions, such as deportation and licensing.
As a result of ubiquitous plea bargaining and collateral consequences — state-imposed civil penalties that are triggered by criminal convictions — prosecutors can deliberately exercise discretion to trigger or avoid important civil consequences. This aspect of prosecutorial discretion has been underexamined, partly because of a lack of awareness of collateral consequences. But as a result of important new initiatives designed to promote information about collateral consequences, prosecutors as well as defendants are becoming more likely to know that even minor convictions can trigger much more serious civil penalties.
As some commentators have pointed out, prosecutors who are aware of collateral consequences may have powerful incentives to drop charges or otherwise structure pleas to minimize the likelihood of certain collateral consequences. But importantly, prosecutors also have strong structural incentives to take the opposite approach and reach pleas to maximize the likelihood of civil penalties. For some prosecutors, enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction, as a source of leverage, as a way to circumvent the requirements of criminal procedure, as a means of achieving deterrence or retribution, or as a way to promote their own public policy preferences.
This Article develops an analytic framework for understanding the structural incentives that lead prosecutors to influence collateral consequences; exposes legal and ethical problems associated with plea bargaining in light of collateral consequences; and argues that collateral consequences can undermine important interests in transparency and accountability.
Thursday, July 14, 2016
Scouting Mike Pence on criminal justice: likely Trump VP pick with notably mixed reform record
According to the latest headlines and alerts on my smart phone, the word today is that GOP Prez candidate Donald Trump is poised to select Indiana Gov Mike Pence as his running mate. As a supporter of sentencing reform, I am disappointed a bit that Newt Gingrich did not make the cut, as he has been a recent vocal and repeated supporter of the "Right on Crime" sentencing reform efforts. (That said, Newt often sounded like a member of the tough-and-tougher GOP crowd in the past, and thus I would not have felt confident that even a Newt pick would signal a Trumpian affinity for sentencing reform.)
Gov Pence's record on criminal justice reform is decidedly mixed, and these linked press stories about various aspects of his work as Indiana's chief executive document the basics:
From May 2013 here, "Indiana Gov. Mike Pence signs sentencing, expungement bills into law":
Indiana Gov. Mike Pence has signed bills to revamp the state's felony sentencing laws and give some offenders the ability to expunge their records. "Indiana should be the worst place in America to commit a serious crime and the best place, once you've done your time, to get a second chance," Pence said in a statement.
The sentencing legislation — House Bill 1006 — is the product of three years of work by lawmakers, judges, prosecutors and others. It's the first wholesale overhaul of the criminal code since the 1970s. It will move Indiana's system of four felony classes to one that has six felony levels. It also requires offenders to serve 75 percent of their sentences instead of the 50 percent currently required....
Pence had expressed concerns about an earlier version of the bill, saying it was too soft on offenders convicted of drug crimes. But lawmakers made changes that appeased the governor. Pence said Monday that the bill will "reform and strengthen Indiana's criminal code by focusing resources on the most serious offenses."
House Bill 1482 gives those Hoosiers previously convicted of crimes the opportunity to essentially have their records wiped clean — if they've had a sustained period without a new offense. The bill sets different standards for different crimes.
Pence the bill will strengthen their opportunities for gainful employment. Businesses will no longer be able to ask applicants if they've been convicted of felonies. Instead, they'll have to ask if they've been convicted of felonies that have not been expunged. The new law "will give a second chance to those who strive to re-enter society and become productive, law-abiding citizens," Pence said.
From March 2016 here, "Pence reinstates mandatory minimum prison terms for some drug crimes":
Gov. Mike Pence is toughening his stance toward drug dealers ahead of a likely bruising re-election campaign where he'll have to answer for Indiana becoming the nation's methamphetamine capital on his watch. The Republican signed into law House Enrolled Act 1235 on Monday, reinstating a 10-year mandatory minimum prison term for a person convicted of dealing meth or heroin who has a prior conviction for cocaine, meth or heroin dealing.
"Drug-abuse problems are not unique to our state, but I'm determined to meet this challenge head-on," Pence said. "We need to make it clear that Indiana will not tolerate the actions of criminals, and I'm pleased to sign into law HEA 1235 to increase penalties on drug dealers."
An analysis of drug-dealing convictions since criminal sentencing reform was enacted in 2014, conducted by the nonpartisan Legislative Services Agency, found just four of the 119 individuals convicted of meth or heroin dealing had a prior conviction and were sentenced to less than 10 years in prison — receiving on average 7.5 years.
More concerning for some lawmakers, including state Sen. Karen Tallian, D-Ogden Dunes, is Pence reversing course on his past actions to eliminate mandatory minimums by now reducing the ability of judges to issue the appropriate sentence for each criminal and giving prosecutors the upper hand in plea bargaining with an accused.
Given this governing histry, I am inclined to call Gov Pence comparable to Prez candidate Trump (and also Prez candidate Clinton) in the arena of criminal justice reform: if you try hard enough, you can readily find a basis to be very encouraged or a basis to be very discouraged by his statements and record.
Law Enforcement Leaders write letter to Prez candidates Trump and Clinton to urge sentencing reform
As reported via this press release from Law Enforcement Leaders to Reduce Crime & Incarceration, in a letter addressed "to Republican Donald J. Trump and Democrat Hillary Clinton, leading groups representing more than 30,000 current and former police chiefs, sheriffs, prosecutors, district attorneys, attorneys’ general and U.S. Attorneys from all 50 states call for sensible steps to address burgeoning prison populations." According to the press release, this letter "marks the first time the law enforcement community has united with one voice to ask major party candidates to support reducing imprisonment" and thus represents "a powerful reversal from law enforcement’s past support of rigid sentencing laws, and signatories asked the candidates to consider the expertise and perspective that led them to the change of heart."
The full letter is available at this link and it gets started this way
Dear Mr. Trump and Secretary Clinton:
We write to you as representatives of our nation’s largest law enforcement organizations. Collectively our membership includes more than 30,000 law enforcement professionals — current and former police chiefs, sheriffs, district and assistant district attorneys, attorneys’ general and U.S. Attorneys from all 50 states.
As the presumptive nominees for President of the United States, we hope that you will take into consideration the perspective of law enforcement as you set your policies. We believe there is an urgent need for the next Administration to help promote the public safety of this country, reduce recidivism, and reform sentencing policies.
As the men and women who dedicate our lives each day to protect this country’s people, public safety and the administration of justice is our utmost priority. Every day, we are required to make tough judgment calls. Sometimes, that judgment call involves locking-up individuals for a long period of time for a heinous crime that damaged a community. We want dangerous offenders off our streets, and behind bars. We want to make sure the people in the communities we serve are protected. Today we are proud that our country is safer than it has been in a generation, and we work hard every day to ensure it remains that way.
However, we also know that our burgeoning prison population is creating a new public safety challenge. Though this may seem counterintuitive, we know from our experience as law enforcement officials that over-relying on incarceration does not deter crime. As prison budgets have continued to rise, funding for state and local law enforcement has been slashed, negatively impacting innovative work in the field including diversion programs, updating information-sharing systems, and smart policing tactics. With finite prison space, we believe prison should be used for the most dangerous offenders.
Budget aside, law enforcement across the country has shifted to embrace rehabilitation and the opinion that certain individuals in our prison system are serving sentences that are too long for the crime they committed. We also realize that, as we see the same offenders reenter the criminal justice system time and time again, we must be creative and devise innovative programs to reduce recidivism, including job training, addiction counseling, and other productive activities.
Wednesday, July 13, 2016
Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
In prior posts here and here, I noted the notable Loomis case in Wisconsin in which the defendant was contesting on due process grounds the reliance by a sentencing court on risk-assessment tools. Today the Wisconsin Supreme Court issued this lengthy opinion rejecting the defendant's constitutional challenge. The Court's extended introduction to its extended opinion is thoughtful, and includes these passages:
In 2007, the Conference of Chief Justices adopted a resolution entitled "In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism." It emphasized that the judiciary "has a vital role to play in ensuring that criminal justice systems work effectively and efficiently to protect the public by reducing recidivism and holding offenders accountable." The conference committed to "support state efforts to adopt sentencing and corrections policies and programs based on the best research evidence of practices shown to be effective in reducing recidivism."
Likewise, the American Bar Association has urged states to adopt risk assessment tools in an effort to reduce recidivism and increase public safety. It emphasized concerns relating to the incarceration of low-risk individuals, cautioning that the placement of low-risk offenders with medium and high-risk offenders may increase rather than decrease the risk of recidivism. Such exposure can lead to negative influences from higher risk offenders and actually be detrimental to the individual's efforts at rehabilitation.
Initially risk assessment tools were used only by probation and parole departments to help determine the best supervision and treatment strategies for offenders. With nationwide focus on the need to reduce recidivism and the importance of evidence-based practices, the use of such tools has now expanded to sentencing. Yet, the use of these tools at sentencing is more complex because the sentencing decision has multiple purposes, only some of which are related to recidivism reduction....
Use of a particular evidence-based risk assessment tool at sentencing is the heart of the issue we address today. This case is before the court on certification from the court of appeals. Petitioner, Eric L. Loomis, appeals the circuit court's denial of his post-conviction motion requesting a resentencing hearing.
The court of appeals certified the specific question of whether the use of a COMPAS risk assessment at sentencing "violates a defendant's right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment's scientific validity, or because COMPAS assessments take gender into account."
Loomis asserts that the circuit court's consideration of a COMPAS risk assessment at sentencing violates a defendant's right to due process. Additionally he contends that the circuit court erroneously exercised its discretion by assuming that the factual bases for the read-in charges were true.
Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.
We determine that because the circuit court explained that its consideration of the COMPAS risk scores was supported by other independent factors, its use was not determinative in deciding whether Loomis could be supervised safely and effectively in the community. Therefore, the circuit court did not erroneously exercise its discretion.
Prior related posts:
- Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
- Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
What should we make of Donald Trump declaring himself the "law and order" and "compassion" candidate?
At the risk of prompting an excessive focus on politics over policy, I am genuinely interested in hearing reader thoughts on this recent Politico article, headlined "Trump: 'I am the law and order candidate'." Here are excerpts:
Hillary Clinton can add the title “secretary of the status quo” to her political résumé, according to Donald Trump, who on Monday also bestowed another moniker upon himself: “the law and order candidate.”
“We must maintain law and order at the highest level or we will cease to have a country, 100 percent,” he said during a speech in Virginia Beach, Virginia, in which he heaped praise upon America’s law enforcement officers. “We will cease to have a country. I am the law and order candidate.”...
“Hillary Clinton, on the other hand, is weak, ineffective, pandering, and as proven by her recent email scandal which was an embarrassment not only to her but to the entire nation as a whole,” Trump continued. “Not only am I the law and order candidate, but I am also the candidate of compassion, believe it. The candidate of compassion.”
Trump’s remarks backing America’s law enforcement officers came at the top of a planned speech in which he outlined plans to fix health care for U.S. military veterans and offered a 10-point proposal to reform the troubled Department of Veterans Affairs....
The presumptive Republican nominee was preceded at his rally by New Jersey Gov. Chris Christie, who likewise praised law enforcement. “We need a president who will once again put law and order at the top of the priority of the presidency in this country,” Christie said. “Our police officers, the men and women who stand each day to protect us need to understand that the president of the united states and his administration will give them the benefit of the doubt, not always believe that what they’ve done is somehow wrong.”
Two articles asking the hard questions about criminal justice reform circa summer 2016
These two recent pieces from two distinct sources ask, in their headlines, two astute questions about the prospects for significant criminal justice reform in the weeks and months ahead:
From The Marshall Project here, "Can Justice Reform Efforts Survive Dallas?"
From MTV news here, "Can Conservatives Make Criminal Justice Reform Happen?"
Monday, July 11, 2016
Spotlighting that the death penalty, practically speaking, is now really dying
BuzzFeed News reporter Chris Geidner has this lengthy and timely article highlighting some notable capital realities circa 2016. The piece carries this full headline: "Practically Speaking, The Death Penalty Is Disappearing In The United States: Although nearly 3,000 people are on death row in America, there has not been an execution in the country for two months — and few executions are expected in the coming months." Here is the start of a piece that merits a full read:
It has been two months since any state in the United States has carried out an execution. This marks the longest time between executions in the U.S. since the Supreme Court effectively halted them in the fall of 2007 through spring 2008 while considering a case about the constitutionality of lethal injection.
This time, the situation is very different. Although there are pending court cases about the death penalty’s application, the source of the two-month stoppage in executions isn’t the Supreme Court. It’s a variety of state-specific issues, ranging from the aftermath of Supreme Court rulings that come down earlier this year to drug availability to fallout from botched executions.
The pause on executions — since it is state-specific — won’t last forever. The stoppage could end as soon as Thursday if an execution scheduled for Georgia goes ahead as planned. It isn’t, however, only that there have been no executions in the past two months. This year, there have been fewer executions overall — just 14 in the first half of the year — than in years past. It’s extremely unlikely, moreover, that the number will be higher in the second half of the year.
There are, in fact, only three states — Georgia, Missouri, and Texas — that have executed anyone since January of this year. What’s more, these states appear to be the only ones that could hold an execution today — despite the nearly 3,000 people on death row across the country. The only other state where executions still seem to be a possibility this year is Arkansas, and that is only so if the state obtains a new supply of execution drugs — which is by no means a sure thing.
Before the 2007-08 gap in executions, the next most recent time when there was such a gap was nearly 25 years ago, when there were no executions held between Nov. 12, 1991, and Jan. 22, 1992. Even then, the stoppage is not entirely comparable to the current one because there often have been shorter periods with no executions surrounding the holiday season. Gaps prior to then were more common, but they were due to the fact the states were still passing and implementing their execution process in the wake of the Supreme Court’s 1976 decision approving execution statutes after a nationwide ruling against the death penalty laws four years earlier.
In short, this is an unprecedented moment in the modern era of the death penalty. Why, in the absence of any overarching federal prohibition on executions, is this so?
Saturday, July 09, 2016
Notable sparring over sequence of capital trials for Charleston mass murderer Dylann Storm Roof
In this post not long after the racist mass murderer committed by Dylann Storm Roof, I flagged the possibility of a double capital prosecution by both the feds and South Carolina in this post. Now that, a year later, this prospect has become a reality, the logistical dynamics are presenting interesting legal issues. And this new Wall Street Journal article, headlined "Death Penalty Freeze Puts Charleston Church Shooting Trials in Conflict: State prosecutors say likelihood of execution gives their case precedence," explores some of this novel capital ground:
The alleged shooter of a South Carolina church congregation is scheduled to appear in state court next week amid a dispute over whether a state or federal case against him should go to trial first.
State prosecutors said in June their case against Dylann Roof should happen first because, in part, it is more likely to result in the death penalty. There is currently an effective moratorium on executions in the federal prison system, due to an internal review of the drugs used to execute prisoners.
South Carolina prosecutors charged Mr. Roof, 22 years old, with nine counts of murder and three counts of attempted murder last year for the June 2015 slaying of nine parishioners at an African-American church, and Solicitor Scarlett Wilson has said she would pursue the death penalty. Federal prosecutors, who charged Mr. Roof within weeks of the state indictment, are also seeking a death sentence.
Mr. Roof has pleaded not guilty but his lawyers have said he would plead guilty if the state or federal governments dropped requests for the death penalty. A lawyer for Mr. Roof didn’t respond to a request for comment.
The federal trial is scheduled to begin in November, while the state trial is slated for January. A hearing in state court is set for Wednesday to discuss the scheduling issues.
The dueling prosecutions have raised complicated procedural issues. Ms. Wilson said in court papers that because Mr. Roof is in the state’s custody, if he were sentenced to death in the federal trial, but received a life sentence in the state trial, the state would likely never relinquish custody of him, defeating any chance of an execution.
Ms. Wilson also argued that because the federal government last executed a prisoner in 2003, the state couldn’t trust that a death penalty verdict in the federal trial will actually result in an execution. “Because of the apparent unwillingness of the United States to implement a sentence of death, the state submits that the outcome of the federal trial has little to no relevance to the defendant’s ultimate fate,” Ms Wilson wrote. “For that reason, it disserves the victims to ask them to endure two trials, but the United States nonetheless has imposed its contrary will.”
Lawyers for Mr. Roof argued in court papers filed Wednesday that issues surrounding scheduling could be easily resolved if prosecutors would remove their request for the death penalty and accept Mr. Roof’s plea. “It was predictable that the unprecedented decision of both the state and federal governments to seek the execution of the same man at the same time would lead to scheduling problems,” defense attorneys wrote.
Federal prosecutors haven’t responded to the requests for the state trial to go first. In a letter to victims’ families Wednesday, South Carolina U.S. Attorney Beth Drake wrote, “While it may appear in court pleadings that the state and federal court are both working towards a speedy trial, at the end of the day, we are all after the same thing—justice.”
Mr. Roof’s attorneys have moved to dismiss the federal case, saying it ignores the division between state and federal jurisdictions.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
Friday, July 08, 2016
The demise of irreducible life sentences in the Netherlands
I am pleased to be able to provide this guest posting from Dirk van Zyl Smit, who runs the Life Imprisonment Worldwide Project at the University of Nottingham, concerning a big recent ruling from the Netherlands:
The Netherlands has long been an exception to the general European rule that all persons sentenced to life imprisonment must have a realistic prospect of release before they are too old or ill to again lead a full life in free society. There are only a small number of life-sentenced prisoners in the Netherlands, 32 at the last count, but they all serve sentences akin to US-style life without parole, and are rarely, if ever, released. On 5 July 2016, that position changed dramatically. The Hoge Raad, the Supreme Court of the Netherlands, ruled that the remote possibility of a pardon, which hitherto has been the sole mechanism by which Dutch life-sentenced prisoners theoretically could be released, was inadequate. The current pardon system did not provide them with a clear prospect of being considered for release and was therefore contrary to Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment.
In coming to this conclusion the Hoge Raad quoted extensively from the standards developed by the Grand Chamber of the European Court of Human Rights (ECtHR) in 2013 in Vinter and others v United Kingdom and in 2016 in Murray v The Netherlands but then set them out and developed them further in its own words. (The translations are my own.)
The Hoge Raad began cautiously (para 3.2), noting
that the life sentence is not inherently contrary to the provisions of art. 3 of the ECHR, even if it is fully executed. From the jurisprudence [of the European Court of Human Rights] however, it follows that life imprisonment cannot be imposed if it is not already clear at the time of imposition that in due course there will be a real opportunity to reassess the life sentence, which in the appropriate cases can lead to the shortening of the sentence or (conditional) release. This does not mean that providing an opportunity for review of the sentence will always lead to a reduction of the penalty. Reassessment can indeed also lead to a finding that there is no ground for reducing the sentence.
The Hoge Raad then explained the various conditions it regarded as essential prerequisites for a review of a life sentence (para 3.3):
In the review, the question that needs to be addressed is whether there have been such changes on the part of the convicted person and whether he or she has made such progress in their resocialisation that the continued implementation of life imprisonment is no longer justified. The criteria used in this context should not be so stringent that release is allowed only when a serious illness or other physical obstacle stands in the way of the further implementation of life imprisonment, or upon reaching an advanced age. The review must be based on information with respect to the convicted person as an individual as well as the opportunities offered for resocialisation. Moreover, at the time of the imposition of a life sentence, it must be clear to the convicted person to a sufficiently precise extent what objective criteria will be applied in the review, so that he knows what requirements must be met, if he wants - eventually – to be considered for a reduction of his sentence or for (conditional) release.
The point of departure in the future must be that the review must take place after no more than 25 years after the imposition of life imprisonment and that after that period the possibility of periodical re-assessment is required. The reassessment shall be surrounded with sufficient procedural safeguards. The case law of the European Court of Human Rights does not require that a provision to curtail a life sentence can only consist of a statutory periodic review of the sentence by a judge. That does not detract from the view of the Hoge Raad that assigning the reassessment to a judge in itself represents an important guarantee that the implementation of life imprisonment will take place in accordance with Art. 3 of the ECHR.
Finally, in order to provide a real opportunity for reassessment, it is important that the convicted person during the execution of the life sentence - even before the reassessment takes place - must be able to prepare for a possible return to society and that, related to this, possibilities for resocialisation should be offered within the framework of the implementation.
The very basis of this decision is a rejection of official Dutch policy on the treatment of life-sentenced prisoners, for until now they have not been offered opportunities for resocialisation, because it had been presumed that they would never be released. The prison regimes for these prisoners will have to change.
The remedy that the Hoge Raad put forward is equally drastic. It ordered the Dutch government to legislate in order to reform the law relating to life imprisonment so that it would meet the standards it had spelled out. Such reforms have to be introduced by 5 September 2017. The Hoge Raad will remain seized with the case until then, when it will again consider the matter and decide whether the legislative reform meets the standards it has now set.
The decision of the Hoge Raad of 5 July 2016 is recognition that Dutch jurisprudence on life imprisonment must move forward to take account of the development in European human rights law that has led to a clear rejection of irreducible life sentences. It stands in contrast to the much more conservative approach of the English Court of Appeal, in R v Mcloughlin, which has insisted that English provisions that would allow life-sentenced prisoners, subject to a whole life order, to leave prison only when ill or dying are sufficiently flexible to be regarded as a form of release to meet the standards of Art. 3 of the ECHR. This interpretation of European standards by the Court of Appeal has been challenged before the Grand Chamber of the ECtHR in Hutchinson v the United Kingdom. Judgment in this last case, which was argued in October 2015, is keenly awaited. What remains to be seen is how the British authorities, including the UK courts, will respond if the ECtHR follows the trend that the Dutch Supreme Court has endorsed and rejects the interpretation of the Court of Appeal. The recent British referendum in favour of leaving the European Union does not affect the legal status of the United Kingdom as a party to the ECHR. However, there has been much press speculation that a decision against the United Kingdom in this latest case about irreducible life sentences may prompt a reconsideration of Britain’s relationship with the ECtHR and lead eventually to a formal withdrawal from its jurisdiction. The measured decision of the Hoge Raad on 5 July 2016 is an example of a less confrontational approach to European jurisprudence by a national apex court. One can only hope that the courts and indeed the government of the United Kingdom will learn from it.
Thursday, July 07, 2016
"Can Obama Pardon Millions of Immigrants?"
The question in the title of this post is the headline of this notable New York Times commentary authored by Peter Markowitz. Here are excerpts:
When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”
However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”
The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....
It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.
A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....
President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.
Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.
President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.
Wednesday, July 06, 2016
The title of this post is the title of this notable new paper authored by Perry Moriearty and now available via SSRN. Here is the abstract:
Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.
In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.
This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.
While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.
July 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Jackson and Miller Eighth Amendment cases, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Examining Justice Sonia Sotomayor's unique SCOTUS voice on criminal justice issues
This past week as brought these two notable examinations of the work of Justice Sonia Sotomayor on criminal justice issues:
From the New York Times here, "In Dissents, Sonia Sotomayor Takes On the Criminal Justice System"
From Slate here, "The court’s leading carceral critic: Why Sonia Sotomayor dissented on gun ban for domestic abusers: Sotomayor's vote reflects a consistent criticism of overcriminalization, excessive prosecution and abusive policing"
Might the Nebraska death penalty repeal referendum in 2016 be even more important symbolically than the dueling California capital initiatives?
As highlighted in prior posts here and here, death penalty opponents and supporters will surely be focused on California during the 2016 election season as voters there will be have a clear capital punishment reform choice between "end it" and "mend it" based on two competing ballot proposals. But this local article from Nebraska, headlined "Death penalty debate heats up," provides a useful reminder that citizens in a very different state will also be voting on the future of the death penalty in their jurisdiction. Here are the basics:
Nebraskans will go to the polls four month from now and vote for an array of issues-one being whether or not to reinstate the death penalty in Nebraska. The legislature voted 30-19 to repeal it in the Spring of 2015, but supporters of capital punishment were able to get enough signatures to get the issue on the November ballot.
“It's a very complicated system, the system is broken and it doesn't work,” said Retain a Just Nebraska campaign manager Darold Bauer [campaign website here]. “The repeal of the death penalty was very unpopular across the state,” said Rod Edwards, state director for Nebraskans for the Death Penalty [campaign website here].
Those for the death penalty say murder victim’s families want justice. “They want that just penalty for the people who killed their loved ones,” said Edwards.
However the group Retain a Just Nebraska said the system doesn’t work and actually harms murder victim’s families. “Eliminate years and years of appeals, and eliminate the possibility of executing an innocent person,” said Bauer.
Both sides of this issue are now ramping up their campaigns this summer coordinating their army of volunteers and getting their message out. “We are re-energizing those volunteers we are working with our Facebook followers to make sure they get the message out and working with those 166-thousands signature gathers to expand that to an electorate,” said Edwards.
Even churches are getting involved-handing out materials urging their people to vote for a specific item. This past weekend, some parishioners likely saw a bit of politicking in the pews. “We are getting help from a number of different churches and different denominations, we are not turning anyone away, if they believe what we do in eliminating the death penalty, we welcome their support,” said Bauer.
Both campaigns will start airing ads on TV and radio soon.
Because California has the nation's largest death row (as well as the largest population of any state in the nation), the outcome of the death penalty reform initiatives in that state will, practically and politically, be far more consequential in the short-term than whatever happens in Nebraska. But, as the question in the title of this post is meant to suggest, I think the vote in Nebraska could have more symbolically importance and long-term significance for the future of the death penalty in the United States.
California is, of course, a "deep-blue" state and its quirky and complicated history with the death penalty will make it relatively easy for whichever side that loses in November to claim that the result is not really representative of the views of the national as a whole. But Nebraska is a "deep-red" state, and its legislative repeal of the death penalty was driven by conservative elected officials. If Cornhusker voters embrace capital repeal at the ballot this November, I think death penalty abolitionists can and will assert forcefully that this vote shows that even conservative citizens want to see an end of capital punishment int he US. But if Nebraska voters reject the repeal, and especially if they do so by a large margin, supporters of capital punishment can and still will be able to point to the outcome as proof that most voters in most states still support the punishment of death for some murderers.
Tuesday, July 05, 2016
Detailing how challenges go up for federal probation officers as the federal prison population does down
The Wall Street Journal has this interesting new article discussing one of many echo effects of a large number of federal prisoners being released early in recent years due to various federal sentencing developments. The article is headlined "Changes in Sentencing Policy Raise Pressure on Probation Officers: Wave of early inmate releases raises concerns over preventing relapses among high-risk population." Here is how it gets started:
Karrie Springstead tries not to stand directly in front of the ex-inmate’s apartment door as she knocks. The veteran probation officer doesn’t expect trouble, but she never knows who might be on the other side. “It’s the third party that makes me a little more leery,” says Ms. Springstead, 31 years old. “It’s the people you don’t know, and they don’t know me.”
Ms. Springstead is one of 5,500 federal probation officers who oversee roughly 180,000 people across the country. The current push for shorter prison sentences is putting more work on the force, federal officials say, and raising concerns that critical details might be missed that could prevent relapses among a high-risk population.
Overhauling the criminal-justice system, including shorter sentences, is a hot topic in Washington, with some Democrats and Republicans increasingly coalescing behind a view that incarceration times have gotten too long. Even before any major bills have passed, however, federal officials have begun chipping away at sentences. Since 2010, 14,100 people have been freed early because of changes in sentencing law and policies, according to the Administrative Office of the U.S. Courts, and the federal probation case load has increased 7% since 2010. In the same period, the budget of the U.S. Office of Probation and Pretrial Services Office rose 0.5%, to $902 million.
The proportion of federal ex-inmates whose probation has been revoked dropped to 27% in 2015 from 29% in 2010. That decline has been attributed in part to improved risk assessments that are more sophisticated than previous ones and include a wider array of factors, from an offender’s education levels to family makeup.
But probation officials say the drop is due chiefly to the fact there are fewer officers, relative to the number of ex-inmates, to spot violations, so more offenders are remaining free. “There is a tie between revocation rates going down and a shortage of officers in the community checking on people,” said Steve Skinner, chief of the federal probation office in Oklahoma City, where Ms. Springstead works....
A change in 2014 by the U.S. Sentencing Commission to the way drug sentences are calculated shows the potential impact. The federal probation office asked for a year to prepare for the change, and hired 388 new probation officers, though attrition cut the net gain to 150, said Matthew Rowland, who heads the office. As a result of the sentencing change, a service that usually gets about 1,130 new charges a week got about 5,000 in the space of a weekend around last Nov. 1. Another 26,000 will be released early in coming years due to the change, according to the U.S. Sentencing Commission.
Anyone eager to discuss what likely will be the highest-profile "declination" in federal criminal justice history?
Lots of smart people recognize and discuss in lots of ways the unique and uniquely important role that prosecutors play in the operation of modern US criminal justice systems, and one theme of a lot of recent commentary and analysis is how little information we generally have about how prosecutors make decisions about who and how to prosecute (and who not to prosecute) for various alleged wrongdoing. In particular, it is sometimes said that too often we fail to even know about a decision and the decision-making process of a prosecutor to decline to bring charges after a significant criminal justice investigation.
I provide this context for anyone eager to discuss and debate this high-profile news as reported in this New York Times article headlined "F.B.I. Recommends No Charges Against Hillary Clinton for Use of Personal Email." As source materials for anyone eager to discuss this recommended declination, here is the full text of today's statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System." It includes these key passages:
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information....
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government....
In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.
As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.
UPDATE: The folks at Crime & Copnsequences already have this quartet of posts up discussing Comey's findings and statement:
- Q: Did Director Comey Make a Mistake?
- Claims v. Findings on the Clinton E-mail Issue
- Never Hillary
- Hillary Clinton Gets a Pass
New Philippines Prez wasting no time executing deadly "tough on crime" plans
In this post a couple of months ago, I noted then Philippine President-Elect Rodrigo Duterte was talking about bringing back capital punishment for drug users(!) and about give police shoot-to-kill powers to go after mobsters and drug dealers. As now reported in this Newsweek article, President Duterte has followed up his talk with action his first week on the job. The article is headlined "30 'Drug Dealers' Executed in Duterte's First Four Days as President," and here are the remarkable details:
The Philippines’s new president, Rodrigo Duterte, appears to be living up to his nickname after less than a week in office. Police in the island country have said that some 30 suspected drug dealers have been killed since Duterte — dubbed The Punisher for his hardline stance on drugs — was sworn into office Thursday.
Formerly the mayor of the southern town of Davao, Duterte, 71, was elected in May following an explosive campaign in which he vowed to kill thousands of criminals and “fatten the fish” in Manila Bay in the capital Manila by dumping their bodies there. Following his oath, Duterte urged his supporters to do away with drug traffickers, reportedly saying: “Go ahead and kill them yourself as getting their parents to do it would be too painful.”
The police chief for the Manila region, Oscar Albayalde, said that five drug dealers were killed following a gun battle with police Sunday, Reuters reported. Three other people were killed in other parts of Manila Sunday, while 22 were killed outside the capital. Police also made a seizure of 180 kilograms of methamphetamine — known locally as shabu — worth around 900 million Philippine pesos ($19 million), according to national police chief Ronald dela Rosa.
In total, more than 100 people have died — most suspected drug dealers, rapists and car thieves — in police operations since the election on May 9.
Prior related post:
Sunday, July 03, 2016
Draft DNC party platform calls for abolition of death penalty ... which means?
In this post last week, I wondered whether it really mattered what the traditional political parties had to say about criminal justice issues in their party platforms. But this latest platform news as reported by CNN from the Democratic National Committee will surely matter to those who are eager to see abolition of the death penalty in the United States:
Democrats are calling for an end to capital punishment. The latest draft of the party's platform, released Friday, says the death penalty "has proven to be a cruel and unusual form of punishment" that "has no place in the United States of America."
The inclusion of the provision represents a victory of sorts for Vermont Sen. Bernie Sanders -- a longtime opponent of the punishment who has said he is remaining in the presidential race in order to fight for progressive causes. Sanders offered mild praise for the platform Friday evening, tweeting, "The Democratic Platform includes some accomplishments that will begin to move this country in the right direction."
Presumptive Democratic nominee Hillary Clinton has supported the death penalty in the past, albeit on a limited basis, suggesting that there could be cases for "very limited use" of the punishment in "horrific" terrorist crimes. She was confronted over the issue during a CNN-TV One town hall event in May by an exonerated former death row inmate who spent 39 years in jail for a murder he did not commit.
For a host of reasons, I would be very surprised to hear Hillary Clinton now express opposition to the death penalty for the likes of Boston Marathon bomber Dzhokhar Tsarnaev or even Charleston mass murderer Dylann Roof. Thus, it would seem the DNC is charting a path toward adopting a party platform that will not be fully embraced by its Prez nominee. And that, in turn, means .... I have no idea.
Saturday, July 02, 2016
Can and will big data help reduce mass incarceration?
The question in the title of this post is prompted by this intriging Wired piece headlined "The White House Is on a Mission to Shrink US Prisons With Data." Here are excerpts:
The Obama administration believes better data within the criminal justice system could [help address mass incarceration. Last week,] the White House announced its new Data-Driven Justice Initiative, through which 67 cities and states will work with each other, as well as with leading tech companies like Amazon and Palantir, to find new ways to use data to shrink the size of their local prison populations.
“What we’ve seen as we’ve engaged with state and local leaders across the country is that there are people who simply do not need to be in our jails,” Valerie Jarrett, senior advisor to the President, said on a call with journalists today. Taking a closer look at the data, she said, can help identify who those people are. In some cities, that’s already starting to happen. The White House pointed to one example in Mecklenburg County, North Carolina, which began diving into its own data back in 2014 to find low-risk people in jail who could be released early. That intervention led to a 40 percent reduction in the county jail population. “That’s 40 percent, and they have had no increase in reported crime,” Jarrett said. “Pretty amazing.”
Of course, data mining is not the forte of most local law enforcement, which is why the White House is also asking for the tech industry’s help. As part of the announcement, Amazon is convening a consortium on data interventions in criminal justice that will be attended by companies like Palantir and organizations like Code for America. The goal of the summit, according to Lynn Overmann, senior policy advisor to the U.S. Chief Technology Officer, is to convene the country’s top data scientists, technologists, and developers together with local governments to figure out “the solutions most likely to work as broadly as possible.”
Some tech companies are donating their existing tools to the member cities and states. For instance, RapidSOS, a company that allows people to submit their exact location data to emergency personnel, is offering its product to five cities for free for the next 10 years. Several research institutions like New York University and the University of Chicago are also partnering with cities and states to research their data strategies.
In a time when Republicans and Democrats can’t seem to agree on anything, prison reform has become an unlikely unifier. Recently, House speaker Paul Ryan has become an outspoken advocate for sentencing reform. That type of across-the-aisle support could help these data efforts spread more quickly. Already, among the seven states that signed on to the Data-Driven Justice Initiative, three have Republican governors. As part of the commitment, they promise to merge criminal justice and health system data to identify people who are most at risk, create new protocols for first responders dealing with mental health issues, and inform pre-trial release decisions.
Of course, using technology to decide whether someone stays behind bars or not is sure to be fraught with controversy as these programs roll out all over the country. After all, if people are concerned about algorithms deciding the news they see, what happens when algorithms decide a person’s freedom?
Friday, July 01, 2016
With SRCA now "officially" dead ... send your "thanks" to (failings of) Prez Obama and bipartisan bungling
This Real Clear Politics article, headlined "Hopes Fade for Criminal Justice Reform This Year," serves essentially as an obituary for the effort to get significant statutory federal sentencing reform done before the end of the Obama Administration. Unsuprisingly, Bill Otis is dancing on the grave of these efforts via this post at Crime & Consequences titled simple "Victory." And Scott Shackford at Reason.com has this helpful post mortem titled "Federal Criminal Justice Reform May Fail, and Everybody’s Blaming Everybody Else," highlighting all the finger-pointing now taking place:
The Sentencing and Reform Act modestly updates federal mandatory minimum sentences to make them less brutal in non-violent drug cases and allows federal judges to invoke "safety valve" exceptions to sentence less than the mandatory minimum in certain cases. Probably the most important component of the law is that it would make the Fair Sentencing Act, which lowered the mandatory minimums for crack cocaine-related crimes to those of powder cocaine, retroactive. According to Families Against Mandatory Minimums (FAMM) this could help somewhere around 5,800 people currently serving sentences in federal prison. You can read FAMM's analysis of what's good and bad about the current incarnation of the Sentencing and Reform Act here.
So thousands of prisoners could be stuck serving outdated sentences for cocaine crimes that no longer even apply if this law is not passed. In response to frustration that the bill isn't going anywhere there's a chain of blaming that weaves throughout RealClearPoltics' report:
Grassley merely says he's "disappointed" because he worked hard to get more Republicans on board supporting the law.
Sen. Dick Durbin (D-Ill.), who wrote the bill, blames Republicans, particularly Senate Majority Leader Mitch McConnell (R-Ky.) for offering him "little to no hope" that the legislation would move forward. (He is undoubtedly also referring to conservatives like Arkansas Sen. Tom Cotton.)
Sen. John Corbyn (R-Texas) blames the House of Representatives for not moving more quickly, which he said would have created "momentum" in the Senate for passing the law.
Sen. Orrin Hatch (R-Utah) says the refusal to add reform to mens rea is holding back the legislation. "Mens rea" is the legal concept that convicting a person of a crime should require proving that they had criminal intent to do so. Not all federal laws have this mens rea requirement, and some Republicans want to add it. This has angered some Democrats and the Department of Justice because they believe it would make it harder to convict people (or more accurately, to force settlements) in white-collar criminal cases or cases of corporate misconduct.
Sen. Sheldon Whitehouse (D-R.I.) blames the Koch brothers for helping push the mens rea reform, calling it a "fatal poison pill." Cornyn, however, pointed out that the current Senate bill does not even contain this reform. There are concerns that it will be attached later on.
As the title of this post is meant to suggest, I think the main individual who should be blamed here is President Barack Obama, although lots of other blame can and should be spread around to all the folks who failed to fully appreciate that a series of small "smart on crime" bills would have been far superior and far more likely to become law than the mega-reform bill that was too complicated with too many controversial parts to make passage ever likely.
I will now likely use the long weekend (which I am about to start by going off-line for a while) to reflect on the current federal sentencing reform "big picture" circa mid-2016. I also think this news provides an approrpriate opportunity to begin a series of commentary posts about criminal justice reform during the Obama era, which I will be calling "Missed Opportunities: The Failure of Prez Obama to bring real Hope and Change to Federal Sentencing." Stay tuned.
July 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Campaign 2008 and sentencing issues, Campaign 2012 and sentencing issues , Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (11)
California initiative to reform death penalty in state qualifies for ballot (and will compete with repeal initiative)
As helpfully explained by Kent Scheidegger via this post at Crime & Consequences, an "initiative to fix problems that have obstructed the enforcement of the death penalty in California has qualified for the ballot." The group supporting the effort is called Californians for Death Penalty Reform and Savings, and its website has all the details of its reform efforts. Kent's post provides this additional context and information:
Four years ago, the friends of murderers came within four percent of repealing the death penalty because they had the money to qualify an initiative while the forces of justice did not. Many people believed that the choice was therefore one between repeal and the status quo of a penalty that is never enforced.
Not this time. The status quo will be history come November, and the people have a clear choice between "end it" and "mend it."
If both initiatives pass, the one that gets the greater number of "yes" votes will prevail.
The greatest problem, once again, will be the great disparity in funding. Softness on crime is the cause of deep-pocketed elitists who do not suffer the consequences of crime, while the base for toughness on crime consists mainly of regular folks of modest means who do. The other side will be able to run deceptive ads, and we will have limited ability to counter them with truthful rebuttal through paid advertising. Hopefully we will be able to get the truth out through other means.
Among the interesting aspects of this story to watch in the coming months is whether various prominent California (or national) officials will officially support/endorse the mend or the end proposal. I suspect most will try to avoid talking about the issue, but I am hopeful the press and advocates will press prominent politicans to express a position.
Prior related post:
Thursday, June 30, 2016
New report highlights huge role of a handful of local prosecutors on the size of death rows
This notable new report from Harvard Law School’s Fair Punishment Project highlights the consequential role of just a handful of local prosecutors on the modern US death penalty. The report, titled "America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive The Death Penalty," gets started this way (with footnotes removed):
Last year, a journalist asked Dale Cox, then the District Attorney of Caddo Parish, Louisiana, about the wisdom of the death penalty in light of the recent exoneration of Glenn Ford, a man who spent thirty years on death row for a crime that he did not commit. Cox told the reporter: “I think we need to kill more people.” “Revenge,” he said, “brings to us a visceral satisfaction.” Between 2010 and 2015, Cox alone secured one-third of Louisiana’s death sentences.
Cox’s disproportionate use of the death penalty illustrates a point that Justice Stephen Breyer recently made. “It is now unusual to find capital punishment in the United States,” Breyer wrote, because “capital prosecutions are being pursued in only a few isolated counties.” There are more than 3,100 counties, 2,400 head prosecutors, and thousands of line prosecutors in America — yet only a tiny handful of prosecutors are responsible for a vastly disproportionate number of death sentences. The question that this disparity prompts is: Why?
This report analyzes the records of five of America’s deadliest head prosecutors. Three of them personally obtained over 35 death sentences each: Joe Freeman Britt in North Carolina, Bob Macy in Oklahoma, and Donnie Myers in South Carolina. These men shared an obsession with winning death sentences at almost any cost. For example, Joe Freeman Britt, who committed misconduct in more than 36% of his death penalty prosecutions, said: “Within the breast of each of us burns a flame that constantly whispers in our ear ‘preserve life, preserve life, preserve life at any cost.’ It is the prosecutor’s job to extinguish that flame.” The remaining two prosecutors, Lynne Abraham (Philadelphia County, Pennsylvania) and Johnny Holmes (Harris County, Texas), did not personally prosecute as many death penalty cases as the three men above, but nonetheless oversaw the imposition of death sentences against a staggering 108 and 201 people, respectively, during their terms.
Of these five prosecutors, only one — Donnie Myers — remains in office, and he plans to retire at the end of the year. One of the most remarkable findings from our research is the fact that once these prosecutors and their protégés left their positions, death sentences dramatically declined in these jurisdictions — a pattern that has only become clear in the years since their departures.
We also highlight five additional prosecutors who came very close to becoming members of this notorious group. These runners-up have egregious records in their own states, and like the prosecutors above, the striking drop in new death sentences that has occurred in their respective jurisdictions since their departures illustrates their outsized impact on the death penalty.
Unfortunately, the problem of personality-driven capital sentencing has continued beyond the tenure of these prosecutors. Over the past fifteen years, prosecutors have pursued far fewer capital cases and juries have returned far fewer death sentences than in years past. Indeed, in 2015, juries returned just 49 death sentences, the fewest in recent history. This number represents an 84.4% drop from the 1996 high of 315 death verdicts. However, in the increasingly small number of the counties that still actively sentence people to death, a handful of prosecutors dominate death-sentencing statistics.
In the final section of this report, we offer a snapshot of three active prosecutors who, if they continue on their current trajectories, may soon join the ranks of the deadliest prosecutors in America. Taken together, the profiles featured in this report demonstrate that the death penalty has been, and continues to be, a personality-driven system with very few safeguards against misconduct and frequent abuse of power, a fact that seriously undermines its legitimacy.
Highlighting what brought Justice Thomas and Sotomayor together in Voisine
Noah Feldman has this effective Bloomberg commentary about the recent SCOTUS Voisine ruling headlined "When Opposites Converge Over Domestic Violence." Here are excerpts:
Some two-thirds of the states define assault in a way that includes reckless conduct. The court was therefore under substantial practical pressure to hold that reckless misdemeanor domestic assaults count for purposes of the federal gun law. If it had not, the federal law would have had to be changed or else it wouldn't have applied in those states....
Thomas’s vote [in dissent] can be explained partly on the basis that he doesn’t want to infringe gun ownership. He added a final section to his dissent suggesting as much. But Sotomayor, who didn’t join that section of Thomas’s dissent, can’t have been actuated by this motive. So why did the court’s most liberal member join its most conservative?
What Thomas and Sotomayor share in common -- along with being the court’s two members of racial minorities -- is a long-term concern with the overreach of federal criminal law. Thomas’s worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor’s concern is more with the status of the individual defendant, who may be subject to long federal sentences.
Yet it’s noteworthy that both right and left saw the court’s decision as potentially troubling. Neither Thomas nor Sotomayor is an apologist for domestic violence. But both saw the court as extending the reach of federal criminal law unnecessarily under the shadow of concern about the dangers of domestic violence. In their own way, each tries to be a conscience on a court that often acts pragmatically. This time, the two consciences converged.
Prior related post:
- By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants
Wednesday, June 29, 2016
Should more lenient treatment of alleged repeat Indiana University rapist garner even more national attention than Stanford swimmer sentencing?
The question in the title of this post is prompted by this remarkable new local story out of Indiana, headlined "Monroe County prosecutor frustrated in ex-IU student's plea deal in rape cases." Here are the basic troubling details:
The Monroe County Prosecutor’s Office admitted it was frustrated after a former IU student charged in two rape cases ended up spending one day in jail. John Enochs will serve one year of probation after pleading guilty to battery with moderate bodily injury as part of a plea agreement. Two rape charges against him were dismissed.
The most recent incident happened in April 2015. According to court documents, a woman told police she’d been raped at the Delta Tau Delta fraternity house but didn’t know her alleged attacker. She said she repeatedly told him to stop, but he held her down. Eventually she was able to leave the room and get away. Security video showed Enochs entering the room with the victim. She left 24 minutes later; health officials said she suffered a laceration to her genitals.
While that case was under investigation, police found a similar alleged rape from 2013. The woman involved in that case agreed to help investigators. DNA evidence and witness statements led them to Enochs.
In a statement Monday, the Monroe County Prosecutor’s Office said the case presented a “very unusual” set of circumstances; law prevented a jury in either case from learning about the other allegation if the cases went to trial.
Prosecutors also said there were “evidentiary” problems with both cases. In the oldest allegation, the one from 2013, witnesses couldn’t recall some important details because so much time had passed and they’d been drinking. Photographs also existed that contradicted “the assertion that the complaining witness was incapable of engaging in consensual activity shortly before the alleged assault.” In the more recent case, prosecutors said DNA evidence was problematic; prosecutors also said video before and after the alleged assault did “not support the assertion of a forcible rape.” They said that made it impossible for them to prove that Enochs caused the woman’s injury.
“This turn of events was frustrating for us as prosecutors, due to the fact that there were two complaints against the defendant. That fact is the reason we continued to pursue accountability on his part which led to this plea agreement,” Chief Deputy Prosecuting Attorney Robert Miller wrote in a statement. Miller said Enochs originally pleaded guilty to a felony; the battery charge was reduced to a misdemeanor at the court’s discretion....
Katharine Liell, who represented Encochs in the case, said Encochs was charged with crimes he didn’t commit. Liell pointed out that prosecutors dismissed both rape charges and blamed the lead investigators for presenting “false and misleading evidence” in the probable cause affidavit charging Encochs with rape. Liell called the charges “sensationalized and false,” adding that Enochs did indeed admit to a misdemeanor. Liell said he was “profoundly sorry for his lack of judgment.”
Because I can only infer various details about this case from this press report, I am deeply disinclined to "attack" the attorneys or the judge for their handling of this case. Still, it seems in this case we have allegations of repeat rapist essentially getting away with his crimes because he only ended up with a misdemeanor conviction and thus not only will not serve any prison time, but will not have to be on a sex offender registry or suffer any other lifetime collateral consequences that go with a serious felony conviction.
I fully understand why a "perfect storm" of factors turned the Brock Turner case into the national sentencing scandal of 2016. But, relatively speaking, the ultimate (in)justice that seems to have taken place in this case out of Indiana seems to be even more scandalous and likely ought to be of even bigger concern for those deeply troubled by the problems of sexual assaults on college campuses.
Tuesday, June 28, 2016
Final SCOTUS order list has nine Mathis GVRs ... and I suspect hundreds more cases will be impacted
The Supreme Court this morning finished up its work before heading out on summer vacation by issuing this order list. Though the Justices granted review in eight new cases, none appear to involve criminal justice issues. But the order list still had a bit of sentencing intrigue by including nine GVRs based on its Mathis ACCA ruling from last week (basics here).
Though it is never surprising to see a spate of GVRs in the wake of any significant ruling about a federal sentencing statute, I suspect that the fall-out from Mathis will extended to many more cases because, as reported via Justice Alito's dissent, it seems the ruling means that "in many States, no burglary conviction will count" as a possible ACCA predicate offense. That reality not only can impact many past, present and future ACCA cases, but also could also echo through the application of burglary (and even other crimes) in past career offender guideline cases.
Ultimately, I would be very surprised in the impact and import of Mathis end up nearly as grand or as complicated as last Term's Johnson ruling. But the consequential sentencing math of Mathis still may be major.
June 28, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Overview of state-level sentencing and criminal justice reform developments
The Pew Charitable Trusts has this new Stateline report headlined "Prisons, Policing at Forefront of State Criminal Justice Action." Here are excertps:
Faced with overcrowded prisons and evidence that lengthy sentences don’t deter crime, more states opted this year to revamp sentencing laws and send some people convicted of lesser, nonviolent crimes to local jails, if they’re locked up at all.
In an about-face after a half-century of criminal justice policies that favored long-term incarceration, Alaska, Kansas and Maryland this year joined at least 25 other states in reducing sentences or keeping some offenders out of prison.
The move to end lengthy prison stays for low-level offenders is one of several steps states took this year in reevaluating criminal justice policies during legislative sessions that have wrapped up in all but a few places. Other measures would help offenders transition back into their communities after release and hold police more accountable.
For years, many lawmakers were wary of appearing soft on crime. But states have recently retooled their criminal justice policies in response to tight post-recession budgets, shifting public opinion and court rulings demanding they ease prison overcrowding....
Alaska, Maryland and Kansas passed bills this year that divert all shoplifting and first-time DUI offenders away from prison, eliminate mandatory minimum sentences for low-level drug offenders, expand parole eligibility, and establish diversion programs for youth offenders, respectively.... And in Tennessee, lawmakers changed standards for property theft charges to help reduce the prison population, and established alternatives to re-incarceration for offenders who violate conditions of their parole or probation.
Many of the proposals enacted this year strike a complicated balance between boosting support for ex-offenders and ensuring that those convicted of crimes are held accountable. Relaxing sentencing and increasing the amount of good-time credits prisoners can earn toward an early release means hardened criminals might get out of prison sooner than they should, said Maryland Del. John Cluster, a retired police officer.
But he said his state could have gone farther to help offenders with job training and other re-entry assistance once they serve their time. “You clean an addict up and you let him out,” Cluster, a Republican, said. “[If] he doesn’t have a job, in less than a year he’s going to be back on the drugs.”
Many lawmakers are eager to reduce the expenses that come with running prisons. For example, prison systems cost taxpayers 14 percent more than state budgets indicate because they do not factor in expenses like benefits for correctional employees and hospital care for inmates. Prisons also strain local social services, child welfare and education programs.
But still, some elected officials want to build more. In Alabama, Republican Gov. Robert Bentley proposed spending $80 million to consolidate some of the state’s existing prisons and build four new ones. The state has one of the most overcrowded prison systems in the country, operating at 180 percent of capacity.
"The Criminal Justice Black Box"
The title of this post is the title of this notable new paper authored by Samuel Wiseman and now available via SSRN. Here is the abstract:
“Big data” — the collection and statistical analysis of numerous digital data points — has transformed the commercial and policy realms, changing firms’ understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely-dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct.
But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, no lucrative market for the data (apart from that for background checks) exists to induce the private sector to step in to fill the gap. As a result, bulk criminal justice data is largely limited to survey data collected by the Bureau of Justice Statistics. Unlocking the “black box” by uniformly collecting and reporting basic, anonymized data from criminal cases — including, e.g., the charges, pretrial release decision, appointment of counsel, and case disposition — would have significant benefits. It would allow researchers, reformers, and government actors to both more effectively study the system as a whole and to more easily identify jurisdictions violating the Constitution by, for example, routinely denying counsel or pretrial release and imprisoning defendants for inability (rather than unwillingness) to pay a fine or fee.
This Article documents this problem, explores its causes, and proposes a solution, arguing that the federal government should form a framework for the uniform collection of anonymized local, state, and federal criminal justice data. While participation in this uniform system is likely to be incremental, even partial data would improve our understanding of the system as a whole and aid efforts to enforce well established, but frequently violated, constitutional rights.
Monday, June 27, 2016
Eager to hear various perspectives on the SCOTUS sentencing Term that was
In this post last September, I previewed the SCOTUS Term that just wrapped up this morning by asking "Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?". (I thereafter followed up with a grand total of one post promoting the silly hashtag, #BESTEA = Best Ever SCOTUS Term for Eighth Amendment for this Supreme Court Term.)
Looking back now, I do not think this past SCOTUS Term proved to be truly monumental for the Eighth Amendment, although I do think the Montgomery ruling is a (so-far under-examined) big deal. Ironically, the surprising and sudden death of Justice Antonin Scalia may have been the biggest Eighth Amendment development: Justice Scalia had long been among the most vocal and frequent critics of the Court's modern "evolving standards" Eighth Amendment jurisprudence, and his eventual replacement, no matter who that ends up being, seems unlikely to be as hostile to this jurisprudence. Indeed, the next new Justice will be joining a Court that seems to already have at least five, and maybe even six, Justices open to continuing to interpret the Eighth Amendment as a serious limit on serious punishment other than just the death penalty. (I am counting the Chief Justice as the sixth, based in part on his surprising vote with the Kennedy majority opinion in the Montgomery case.)
Of course, there were a number of notable constitutional cases/developments outside of the Eighth Amendment context this past Term involving important sentencing issues. For death penalty followers, the Sixth Amendment ruling in Hurst was and will remain a very big deal for the forseeable future (especially in Alabama, Delaware and Florida). And the shock-waves of the Johnson Fifth Amendment ruling from the end of last SCOTUS Term has and will continue to rumble through the Welch retroactivity ruling and today's grant in the Beckle case to address the application of Johnson to the career offender provision of the federal sentencing guidelines.
In the coming days and weeks, I will likely to some writing about the SCOTUS sentencing Term that was along with some predictions about what the future might hold for SCOTUS sentencing jurisprudence. In the meantime, though, I would be eager to hear from readers (in the comments or via email) concerning what sentencing case(s)/opinion(s) they think were most important or significant or telling or consequential. And anyone who can provide perspectives on the SCOTUS sentencing Term that was wth a Tom Lehrer flair will be sure to get extra praise and promotion in this space.
Some recent highlights from Marijuana Law, Policy & Reform
Especially because there is likely to be a lot more marijuana reform news to cover (both in Congress and in the states) in the coming months than statutory sentencing reform news, I am likely this summer to make a habit of weekly reviews of recent postings from my Marijuana Law, Policy & Reform blog. These recent posts highlight these realities: