Tuesday, April 04, 2017

How many prior sentenced federal prisoners might now have "Dean claims" (assuming Dean is retroactive)?

As reported in this post from yesterday, and as explained a bit more via this write-up I provided to the fine folks at SCOTUSblog, the Supreme Court yesterday in Dean v. United States, No. 15-9260 (April 3, 2017) (available here) ruled that the Eighth Circuit had been wrong to hold that, "in calculating the sentence for [a] predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)."  According to the government's briefing in Dean, most of the circuits had also ruled like the Eighth Circuit (incorrectly) on this statutory sentencing issue — though I suspect that, in practice, a number of district courts did not consistently ignore 924(c) mandates when sentencing predicate offenses.

Given this background, I was surprised I did not think of the question in the title of this post until former AUSA Steven Sanders sent me an email with this query: "Any thoughts on whether Dean applies retroactively on 2255, on the (Montgomery) theory that the decision opens up the range of punishment and thus is substantive for Teague purposes?"   Regular readers familiar with my views about finality rules and sentencing errors (basics here, law review article here) should expect me to have plenty of thoughts about Dean retroactivity, most of which center around the view that Dean qualifies as retroactive.  Put simply, Dean seems to me to be a substantive ruling that applies retroactively.

Assuming Dean is retroactive, this recent "Quick Facts" publication from the US Sentencing Commission suggests there could be thousands (perhaps even tens of thousands) of federal prisoners with plausible Dean claims.  Specifically, that publication indicates that, in Fiscal Year 2015, over 1100 federal defendants were convicted under both section 924(c) and another predicate offense not carrying a mandatory minimum, and that the average sentence for this group was over 11 years in prison. Assuming 2015 was a fairly representative year — and the USSC publication actually suggests a larger number of defendants getting longer sentences in prior years — it is possible that well over 10,000 defendants (and maybe many more) could be in federal prison serving sentences that were imposed based on an understanding of applicable sentencing principles that Dean has now disrupted.

For various procedural and practical reasons, I doubt we will see thousands of "Dean resentencings" in the federal courts in the coming months even if thousands of prisoners got sentenced based on the wrong understanding of the applicable laws here.  But I do expect that there will be many more than just a handful or "Dean resentencing" efforts.

April 4, 2017 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Could Proposition 66 turn the California Supreme Court into a specialty death penalty appeals court?

The question in the title of this post is prompted by this recent lengthy Los Angeles Times article headlined "Trying to speed up executions could deal 'mortal blow' to California Supreme Court." Here are excerpts:

If a November ballot measure to speed up executions goes into effect, the California Supreme Court will have to decide hundreds of death penalty appeals in rapid succession. That mandate would turn the state’s highest court into what analysts say would be “a death penalty court,” forced for years to devote about 90% of its time to capital appeals.

Proposition 66, sponsored by prosecutors and passed by 51% of voters, gave judicial leaders 1½ years to make new legal rules and then five years to decide a crushing backlog of appeals. “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder,” said Jon Eisenberg, president of the California Academy of Appellate Lawyers.

Legal analysts and four bar associations say the measure would inundate all the courts with extra work but hit the top court’s seven justices hardest.  In a friend-of-the-court brief, 11 law professors and a nonprofit legal center contended Proposition 66 would “grind the wheels of justice to a halt” in California.

Death penalty advocates acknowledge the measure would mean extra work for the courts, but say that it is necessary to fix a system that has produced the largest death row in the country and no executions in more than a decade.  They contend the workload will be tolerable, and that the courts will have some flexibility in meeting the deadlines.

The California Supreme Court is considering whether the measure can go into effect. Two opponents of the measure sued in November, contending it illegally usurped the powers of the judicial branch and violated a constitutional rule that says ballot measures must deal with one subject only. The California Supreme Court put the measure on hold until the justices resolve the case, probably within the next few months.

The appellate lawyers’ academy takes no position on the death penalty but opposed the initiative on the grounds that it would disrupt the courts and prevent litigants in civil matters from having their cases decided in a timely manner. It joined the bar associations of Los Angeles, Beverly Hills and San Francisco in a January letter written to the state Supreme Court saying that Proposition 66 “threatens to deal a mortal blow” to California’s courts....

Given a backlog of more than 300 death penalty appeals already at the court, the justices would have to decide at least 66 of them each year for the next several years just to catch up, Eisenberg said. Calculations based on the court’s typical annual production indicate the justices would be spending 90% of their time on capital cases, Eisenberg said. Civil case rulings would decline from about 50 a year to just a handful, he said. “That leaves virtually no time for anything other than death penalty cases,” Eisenberg said....

UC Berkeley's David A. Carrillo, director of a center that studies the California Constitution, described the initiative as a new unfunded mandate. "There is no way the courts can get through the existing backlog in five years with their current resources," Carrillo said.

Law enforcement groups have filed several friend-of-the-court briefs in favor of the initiative, arguing that voters have made their will clear. “California voters have elected to retain the death penalty every time the issue has been placed before them,” the leaders of several county prosecutor groups reminded the court in one brief.... “Despite the abiding and long-standing will of the voters, death penalty opponents have used the legal process as a mechanism to frustrate imposition of the death penalty,” the prosecutors argued in their brief.

Kent Scheidegger, who helped write Proposition 66, said the portrait of court chaos predicted by the bar associations and some analysts was overblown. Although the measure would require the California Supreme Court to move quickly to dispatch the backlog of capital appeals, the initiative would also shift initial responsibility for habeas challenges from the high court to trial judges, he noted. That provision, Scheidegger argued, would save the court time.

Rulings by Superior Court judges on those cases would likely be appealed to intermediate appellate courts and up to the state Supreme Court, but Scheidegger said the trial judges would do the heavy lifting. “I know that all judges hate time limits, but I do think that moving the habeas cases is a reform that most of the justices probably would agree with,” said Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for the death penalty.

Even if the Supreme Court were to strike down the measure’s deadlines, other requirements of the initiative would still speed up executions, he said. He cited a provision that would limit public review of the state’s lethal injection method. Legal challenges involving the method have kept the execution chamber empty since 2006. Eighteen inmates who have exhausted their appeals could be executed immediately once that part of the initiative took effect, he said.

Former El Dorado County Supervisor Ron Briggs and the late former Atty. Gen. John Van de Kamp, who filed the lawsuit, argued that the entire measure should be tossed because it violated the rule limiting initiatives to a single subject. In addition to setting new deadlines and easing approval of an execution protocol, Proposition 66 would require death-row inmates to work to pay compensation to victims’ families and bar medical associations from disciplining doctors who participate in executions. It also would place a state agency assigned to represent death row inmates under California Supreme Court control and permit the corrections department to distribute condemned inmates among the general prison population.

I find so many interesting elements to this story, ranging from the telling reality that it has already taken five months to move along litigation about the status of an initiative designed to move along litigation to the interesting conflict created by state Supreme Court judges having to decide a case that will determine whether and how they have to decide a lot more cases a lot more quickly.  In the end, though, this story confirms my long-standing belief that unless and until a lot of elected officials in California start having a very strong interest in moving forward with a large number of executions, the death penalty will exist in the state more as a sentence on paper than as a sentence that actually gets carried out for any significant number of condemned murderers.

April 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, April 03, 2017

"Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process"

The title of this post is the title of this notable article just published in Justice Quarterly authored by Christi Metcalfe and Ted Chiricos.  Here is its abstract:

With the growing recognition of the salience of prosecutorial discretion, attention to biases in the earlier phases of case processing is increasing.  Still, few studies have considered the influence of defendant race and race/sex within the plea process.  The present study uses a sample of felony cases to assess the influence of race and race/sex on the mode of disposition, similarities and differences in the factors that predict the likelihood of a plea across race, and potential racial disparities in the plea value received pertaining to a charge reduction.

The findings suggest that blacks, and black males in particular, are less likely to plea, and are expected to receive a lower value for their plea.  Also, the factors that predict the likelihood of a plea are substantively different across race. Conditioning effects of race and sex are found in the likelihood of a plea and probabilities of a charge reduction.

April 3, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Supreme Court unanimously rules for defendant and district court sentencing discretion in Dean

I am intrigued and surprised and ultimately pleased that a unanimous Supreme Court this morning emphasized the significance of federal district court sentencing discretion through its ruling in Dean v. United States, No. 15-9260 (April 3, 2017) (available here). The Chief Justice authored a relatively brief opinion for the Court in Dean that was obviously convincing enough to get even the most pro-prosecution Justices comfortable with ruling against the prosecution.  Here are some key parts of the opinion, starting with the first paragraph that signals where the rest is headed:

Congress has made it a separate offense to use or possess a firearm in connection with a violent or drug trafficking crime. 18 U. S. C. §924(c). That separate firearm offense carries a mandatory minimum sentence of five years for the first conviction and 25 years for a second. Those sentences must be in addition to and consecutive to the sentence for the underlying predicate offense. The question presented is whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)....

The §3553(a) factors are used to set both the length of separate prison terms and an aggregate prison term comprising separate sentences for multiple counts of conviction. Under §3582 a court, “in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a).”...

As a general matter, the foregoing provisions permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts....

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory minimum under §924(c) is already punishment enough.  But no such intent finds expression in the language of §924(c).  That language simply requires any mandatory minimum under §924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence.  Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.

April 3, 2017 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Latest SCOTUS order list includes one complicated capital case grant

The Supreme Court via this order list granted cert in two cases, including a capital case out of Texas, Ayestas v. Davis. SCOTUSblog has this case page for Ayestas, where one can find this cert petition, where one can find the complicated question on which cert was granted:

2. Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an IAC claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.

April 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Charleston Church shooter Dylann Roof slated to plead guilty to state charges to avoid second capital trial

As reported in this local article, "mass killer Dylann Roof will plead guilty to state murder charges on April 10, sparing his nine victims' loved ones a second grueling death penalty trial and ensuring he spends the rest of his life in prison."   Here is more:

Roof, 22, was convicted in January of 33 federal charges, including hate crimes, and sentenced to death for killing nine black worshippers at Emanuel AME Church. However, 9th Circuit Solicitor Scarlett Wilson also was pursuing the death penalty for nine state murder charges, proceedings that had been on hold since the end of Roof's federal trial.

She let families of Roof's victims know early Friday she is accepting a guilty plea instead. "I write with great news that the state’s case is ready to wrap up. As I told you towards the end of trial and in other updates, at this point our goal is to provide an insurance policy to the federal conviction and sentence. The most effective way to do that is to secure a guilty plea for a life sentence and get the defendant into federal custody," Wilson wrote in a letter obtained by The Post and Courier.

Reached Friday, Wilson said the move will take the death penalty off the table in the state case and assist with moving the white supremacist along to federal prison. "The goal is to get him into federal custody so their sentence can be imposed," she said. She had no further comment on the decision, saying her letter speaks for itself.

After his April 10 plea, Roof likely will be moved from the Charleston County detention center to a federal Bureau of Prisons facility. Male prisoners sentenced to death usually are housed at a prison in Terre Haute, Ind., site of the federal execution chamber.

Loved ones of those killed have waited since the gut-wrenching federal trial's close to find out Wilson's plans. Many don't support the death penalty on religious grounds and several said they didn't want to go through a second trial.

The Rev. Sharon Risher, whose mother died in the shooting, was among them. Wilson called to tell her the news. "I totally appreciated that," Risher said. "I'm feeling glad we don't have to endure another trial. I believe in my heart that this is the right thing to do. He won't ever be able to step outside again. He won't ever feel the sun on his skin again."

April 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, April 02, 2017

"Briefing the Supreme Court: Promoting Science or Myth?"

The title of this post is the title of this new timely essay authored by Melissa Hamilton now available via SSRN. Here is the abstract:

The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders.  An issue that has arisen in the case is the state’s justification for the ban.  North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes.  The collective states contend that these three claims are supported by scientific evidence and common sense.  This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.

April 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Science, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, April 01, 2017

"Civilizing Criminal Settlements"

The title of this post is the title of this interesting new article authored by Russell Gold, Carissa Byrne Hessick and F. Andrew Hessick now available via SSRN. Here is the abstract:

Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways.  The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants.  This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor.  By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution.  Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously.  Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements.

This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements.  It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties.  In particular, it contends that the criminal system should heighten pleading standards, take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation.  Adopting these procedures would tend not only to produce more informed and more fair plea bargains, but also to reduce the prosecutor’s leverage in plea negotiations.  The Article also suggests preventing prosecutors from exercising their remaining leverage to demand that defendants waive these procedures by adopting some form of fee-shifting, also borrowed from civil practice.

April 1, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

"Conservatives Are Leading the Way as States Enact Criminal Justice Reform"

The title of this post is the headline of this extended Slate commentary (which is not an April Fool's Day joke). The piece is authored by LawProf Brandon Garrett, and it carries this subheadline: "Can their enthusiasm stop Donald Trump from pushing his backward 'tough on crime' agenda?". Here are excerpts:

The United States incarcerates its citizens at a higher rate than any other country in the world, but over the past few years, there’s finally been some progress. Rates of incarceration have finally begun to decline, mostly due to sweeping changes made in progressive states like California, New Jersey, and New York. According to Pew Charitable Trusts, adult incarceration has declined 13 percent since its peak in 2007, from 1 in 100 to 1 in 115.  Of course, this progress is threatened by Donald Trump and his administration: The president has not only promised to reinstate a long-outdated approach to criminal justice, he’s also made Jeff Sessions, who holds similarly antiquated views, his attorney general.  The two of them are preparing a task force to study violent crime — despite the fact that it’s already at historic lows — and are aiming to focus resources on drug cartels and drug use. They seem determined to return the federal government to the tough-on-crime era of the 1980s and 1990s, the height of the war on drugs.

But criminal justice reform is still marching forward—and the momentum is largely coming from conservatives, working in their state governments.  The conservative case for reform is obvious: Spending billions of dollars on prison expansion and lengthy sentences is outdated and ineffective. And the state level is where reform will be the most effective — the majority of people are incarcerated in state systems. Reducing that number helps states balance their budgets, said Lenore Anderson, president of Alliance for Safety and Justice, a criminal justice reform organization that centers on crime victims. “Continued budget problems mean that regardless of who’s in the White House, [criminal justice] is going to continue to be a ripe issue for reform.”...

Texas is one of several red states, along with Georgia, Kentucky, Mississippi, Oklahoma, and South Carolina, that has adopted a range of progressive initiatives in the past decade. Texas’ reputation as a gung-ho death penalty state may make its reform efforts a surprise, but in the past decade, fiscal conservatives joined forces with civil libertarians and reduced the state’s incarceration rate by 14 percent.  Part of that was thanks to forensic science and eyewitness identifications reforms that ended up putting fewer people behind bars. And rather than spend a half-billion dollars on building three new prisons, Texas instead invested in rehabilitation and re-entry, which has allowed it to close three prisons and saved billions. Crime has fallen to the lowest levels seen in Texas since 1968.

More than 30 other states have passed justice reinvestment legislation similar to Texas’. These laws divert low-level offenders from prison, use evidence-based risk methods to determine who really needs to be behind bars, reduce penalties for crimes, and aim to make it easier to get work after leaving prison. The cost savings from these reforms is then invested in rehabilitation and mental health and drug treatment, reducing crime even further....

But even with all this progress, a 10 percent to 20 percent drop in people going in won’t change the fact that our prisons are still vastly overstuffed — incarceration has risen 500 percent since the 1970s. Currently, more than half of the state prisoners in the country are serving time for violent crimes. Reducing prison populations to a manageable size must also include a closer look at how we legally define, prosecute, and punish violent crimes....

With Trump in charge, it’s possible that [some] will feel more empowered to push back against the progress that was starting to seem inevitable. The states that go back to this approach will likely see higher incarceration rates, and the costs — both human and fiscal — will fall on the public. But most lawmakers (not to mention the public) seem to have learned that these “tough” approaches failed in every way. We wasted billions to become the world’s leading incarceration nation. Such policies are simply an expensive and self-defeating type of posturing by politicians who value their own self-image over the well-being of the constituents. We already know what type of leader Trump is — let’s hope the state resistance is enough to fight him.

Though I support the sentiments of much of this commentary, I am disappointed that it fails to directly confront the tangible increase in violent crime over the last few years and the various ways in which this increase provides critical fodder for those eager to resist a move away from past "tough and tougher" approaches to crime and punishment. I surmise that AG Sessions and many of those around him sincerely believe crime remains low today only because of the laws, policies and practices of the "tough-on-crime era of the 1980s and 1990s," and these folks can and do now readily suggest that recent reforms to these laws, policies and practices may account in large part for recent crime increases. Past crime declines and now recent crime increases will likely lead these folks to persistently resist even the suggestion that a commitment to tough-and-tougher approaches is "self-defeating" in any way. In turn, they will contend that academics and other reformers are far too eager to put the interests of criminals ahead of victims.

April 1, 2017 in Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Friday, March 31, 2017

New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month

In this post last year, I noted the 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, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation.   The latest timely report from FPP is titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and here is how it gets started:

Since the Supreme Court reinstituted the death penalty in 1976, Arkansas has executed just 27 people.  It has not sent an inmate to the death chamber since 2005.  But beginning on April 17, Arkansas intends to execute an unprecedented eight men in just ten days.

This report examines the cases of those condemned men, and what we found is devastating.  At least five of the eight cases involve a person who appears to suffer from a serious mental illness or intellectual impairment.  One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score.  Another man suffers from paranoid schizophrenia and believes that he is on a mission from God.  He sees both his deceased father and reincarnated dogs around the prison.  A sixth condemned inmate endured shocking sexual and physical abuse–he was burned, beaten, stabbed, and raped, and his mother pimped him out to various adults throughout his preteen and teen years.  In the two remaining cases, there is no evidence to suggest that the attorneys ever conducted even a minimally adequate mitigation investigation to determine if their clients had any illnesses or disabilities.

Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness–one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. Taken together, these cases present a foundational challenge to the legitimacy and integrity of the death penalty in Arkansas.  The Governor should declare a moratorium on executions so these legal deficiencies can be given a closer look, or else the Courts must intervene to stop these executions in order to preserve public confidence in the rule of law.

March 31, 2017 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (7)

Perspectives on some changing prosecutorial perspectives

This New York Times article, headlined "Lock ’Em Up? Prosecutors Who Say ‘Not So Fast’ Face a Backlash," discusses the debate over a new local Florida prosecutor's announcement that she will not pursue capital cases together with the broader dynamic that more local prosecutors are running and winning on a criminal justice reform platform. (The companion piece briefly profiles "5 Prosecutors With a Fresh Approach.") Here are excerpts:

In Tampa, the top prosecutor says too many children are charged as adults. In Houston, the district attorney will no longer press charges in low-level marijuana cases. And in Chicago, prosecutors will no longer oppose the release of many nonviolent offenders who cannot afford to post bond. Two more newly elected prosecutors, in Denver and Orlando, have vowed not to seek the death penalty, even for the most egregious killers.

They are part of a new vanguard that has jettisoned the traditional lock-’em-up approach, instead winning over voters by embracing alternatives to harsh punishment. But in their eagerness to enact changes, some are facing a backlash from law enforcement groups and more conservative politicians.

In Texas, Lt. Gov. Dan Patrick, a Republican, warned that failing to punish drug crimes would make Houston akin to a “sanctuary city” for illegal enterprise. In Chicago, a suburban police chief warned that a move to classify more shoplifting cases as misdemeanors was “a slippery slope.”

But nowhere has there been more vitriol than in Florida, where a battle over the death penalty shows just how volatile an issue capital punishment remains, especially when the death of a police officer is involved....

The new breed of prosecutors was helped into office by voters skeptical of wrongful convictions, mass incarceration and evidence of racial bias in law enforcement. As candidates, many received help from the liberal billionaire George Soros, who spent millions on campaigns in states including Arizona, Mississippi and Missouri. Of the 15 candidates supported by his political action committees (including one for sheriff), 12 were victors.

But some change-minded prosecutors won without Soros money, showing that attitudes across the country are changing regardless of outsize political contributions, said David A. Sklansky, a professor at Stanford Law School who closely follows the issue. “It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment,” he said. “That was unheard-of 10 years ago.”

Bob Ferguson, the attorney general of Washington State, said, “I think our public’s view of our criminal justice system has evolved.” Speaking out against the death penalty, he added, “is not the third rail people think it is.”

March 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, March 30, 2017

White House adviser Jared Kushner and Senate Judiciary Chair Charles Grassley meet on federal criminal justice reform

This new AP article reports that "Senate Judiciary Committee Chairman Chuck Grassley met with White House adviser Jared Kushner about criminal justice reform Thursday, giving supporters a small sign of encouragement that the issue could be revived under President Donald Trump."  Here is more context (but not much of substance) about the meeting:

[A reform] bill died in the Senate last year over conservative opposition, and its future has seemed unclear under Trump.  Attorney General Jeff Sessions, then a senator from Alabama, was a fierce opponent.  Former President Barack Obama was an enthusiastic backer of the effort, and supporters were skeptical that Trump would be as well, since he had dubbed himself "law-and-order candidate" and talked about a country in crisis, with terrorism in big cities and attacks on police.

Grassley, R-Iowa, confirmed the meeting with Kushner, Trump's adviser and son-in-law, which was first reported by BuzzFeed News, but would not comment on its substance.  The White House did not have immediate comment.  On whether the bill could be revived, Grassley said, "We're trying to reach some accommodation, if there needs to be any adjustment to the bill we had last year."

An unusual coalition — including the American Civil Liberties Union and the conservative Koch Industries — says the system is broken and supports changes.  Grassley and Texas Sen. John Cornyn, the No. 2 Republican in the Senate, and Illinois Sen. Dick Durbin, the No. 2 Senate Democrat, were sponsors of the bill.  House Speaker Paul Ryan, R-Wis., has also been a strong supporter of the effort.

Advocates were encouraged by the meeting.  Holly Harris of the Justice Action Network said she is hopeful that lawmakers in Congress are paying attention to several successful state efforts to make similar changes.  And given the bipartisan support, she said, it's legislation that has a real chance of passing. "Congress needs to prove it can accomplish something, and this is the perfect issue," she said.

I am disinclined to call this one meeting a sign that federal statutory sentencing reform is in the works again, but it is an encouraging developments nonetheless for those eager to see Congress do some more reform work in this space.

March 30, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection

As reported in this local article, headlined "Suit over Arkansas execution drug gets dismissal; Griffen: Justices stole men’s rights," a trial judge in Arkansas is none-too-pleased he felt compelled to dismiss a challenge to lethal injection brought by state prisoners in the wake of a state Supreme Court ruling on the matter. Here are the basics of a notable ruling in a state seemingly poised now to conduct eight executions in the coming weeks:

The Arkansas Supreme Court's decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state's execution procedures, and it forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.

"It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial," the judge wrote.

The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state's execution protocols. Griffen's dismissal of the inmates' Circuit Court lawsuit comes as eight of those inmates face lethal injection next month in four two-per-day execution sessions.

The prisoners have filed two federal lawsuits this week attempting to halt the process. On Tuesday, they sued to stop the ongoing clemency hearings, arguing that the state is moving forward with their executions so quickly that their clemency petitions are not getting the consideration required by law. A federal lawsuit that they filed Monday disputes that the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections that bar the infliction of cruel and unusual punishment.

The inmates had disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen. But they were not allowed to present their evidence in court because the Supreme Court ignored "decades" of case law to dismiss their entire lawsuit even before all of the issues the inmates had raised had been decided, Griffen wrote in Tuesday's order and memorandum.

"To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent," Griffen wrote.

State lawyers asked Griffen on March 16 to dismiss the killers' lawsuit based on the Supreme Court's June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus. Arkansas has not carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature has made to the state's execution procedures over the past several years.

On March 17, the inmates' attorneys asked Griffen to rule in their favor on issues in the lawsuit that they stated the Supreme Court holding did not address. But the judge wrote that the Supreme Court decision required him to dismiss the lawsuit.

His 10-page ruling also states that the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests that the justices violated the oath all attorneys take to uphold the law to reach their conclusions. "It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.

March 30, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, March 29, 2017

Notable review of recent ups and downs in federal prosecutions

FT_17.03.23_prosecutions_numberIn this new posting over at the Pew Research Center, John Gramlich has assembled interesting data on federal modern criminal justice realities under the headline "Federal criminal prosecutions fall to lowest level in nearly two decades." Here are highlights:

After peaking in 2011, the number of federal criminal prosecutions has declined for five consecutive years and is now at its lowest level in nearly two decades, according to a Pew Research Center analysis of new data from the federal court system. The decline comes as Attorney General Jeff Sessions has indicated that the Justice Department will reverse the trend and ramp up criminal prosecutions in the years ahead.

Federal prosecutors filed criminal charges against 77,152 defendants in fiscal year 2016, according to the Administrative Office of the U.S. Courts. That’s a decline of 25% since fiscal 2011, when 102,617 defendants were charged, and marks the lowest yearly total since 1997. The data count all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They exclude defendants whose cases were handled by magistrate judges.

Prosecutions for drug, immigration and property offenses – the three most common categories of crime charged by the federal government – all have declined over the past five years. The Justice Department filed drug charges against 24,638 defendants in 2016, down 23% from 2011. It filed immigration charges against 20,762 defendants, down 26%. And it charged 10,712 people with property offenses such as fraud and embezzlement, a 39% decline.

However, prosecutions for other, less frequently charged crime types have increased slightly. For example, prosecutors charged 8,576 defendants with gun crimes in 2016, a 3% increase over 2011 (and a 9% single-year increase over 2015). And they charged 2,897 people with violent crimes such as murder, robbery and assault, a 4% increase from five years earlier.

Several factors may play a role in the decline in federal prosecutions in recent years. One notable shift came in 2013, when then-Attorney General Eric Holder directed federal prosecutors to ensure that each case they bring “serves a substantial federal interest.” In a speech announcing the policy change, Holder said prosecutors “cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law.”

Sessions, who took office as attorney general in February, has indicated that the Justice Department will take a different approach under his leadership. In particular, he has pushed to increase prosecutions for drug- and gun-related offenses as part of a broader plan to reduce violent crime, which rose nationally in 2015 and in the first half of 2016, according to the FBI. (Despite these increases, violent crime remains far below the levels recorded in the 1990s.)...

Since 2001, the Justice Department’s prosecution priorities have changed. Immigration offenses, for instance, comprised just 15% of all prosecutions in 2001; by 2016, they accounted for 27%. During the same period, drug crimes fell from 38% to 32% of all prosecutions, while property crimes declined from 20% to 14%.

Such revisions by the Justice Department are not unusual. In 2013, for example, after two states legalized the recreational use of marijuana, the department announced new charging priorities for offenses involving the drug, which remains illegal under federal law. Federal marijuana prosecutions fell to 5,158 in 2016, down 39% from five years earlier.

March 29, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Tuesday, March 28, 2017

Ruling 5-3, SCOTUS rejects Texas effort to limit definition of intellectual disability for death penalty application

The Supreme Court this morning handed down an opinion in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), in favor of a capital defendant.  Because I am on the road, I will not be able to provide context for this ruling until later today.  Short story seems to be that the more liberal Justices were not impressed by the more conservative standard Texas courts have used to apply the Atkins and Hall precedents concerning Eighth Amendment limits on executing the intellectually disabled.

UPDATE:  Now with a few minutes at a desktop, I can quote Justice Ginsburg's opinion for the Court:

Bobby James Moore fatally shot a store clerk during a botched robbery.  He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution.  A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.”  The habeas court therefore recommended that Moore be granted relief.

The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S.W.3d 1 (2004).  See Ex parte Moore, 470 S.W.3d 481, 486–487 (2015).  The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S.W.3d at 526.

We vacate the CCA’s judgment.  As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U.S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7).  That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus.  Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source.  Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” 572 U.S., at ___ (slip op., at 1).  Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.

March 28, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Federal prosecutors seeking 3-year prison terms for "Bridgegate" defendants

I have covered in a few prior posts the convictions and coming sentencing of Gov Chris Christie staffers who are now felons thanks to federal prosecutions in the wake of the so-called Briedgegate scandal.  This local article, headlined "Bridgegate: Feds seek 'meaningful' jail term for former Christie allies," reports on final filings as sentencing approaches:

Calling their crimes a "stunningly brazen and vindictive abuse of power," federal prosecutors urged a federal judge to sentence both Bill Baroni and Bridget Kelly, convicted last year in the Bridgegate scandal, to a "meaningful term of imprisonment."

But in a pre-sentence report filed Monday, the U.S. Attorney's office did not ask for the maximum term. Instead, they recommended a sentence for the two Bridgegate defendants to be "at the bottom or modestly below" the federal sentencing guidelines of between 37 to 46 months in prison.

Such a term, though, would still stand in stark sentence to the year of home confinement handed down earlier this month to David Samson, the former chairman of the Port Authority of New York and New Jersey, after he pleaded guilty to bribery in connection with the shakedown of United Airlines so he could get a more convenient flight to his country estate in South Carolina. Facing two years in jail, the former Port Authority chairman, David Samson, instead was sentenced to probation after attorneys, calling his actions a one-time lapse in judgment, asked the court to grant leniency for the ailing 77-year-old attorney, who was Christie's mentor.

Indirectly referencing the Samson ruling, the prosecutors said a sentence that could be perceived as a mere "slap on the wrist" would "send precisely the wrong message to the public, as well as to thousands and thousands of New Jersey public officials, elected and appointed."

Defense attorneys challenged the sentencing guidelines, which call for far longer prison terms than the typical corruption case, in large part because the Bridgegate convictions included charges of civil rights violations. "This sentencing is not about how much hyperbole the government can use in its sentencing brief," said Baroni's attorneys in a brief, also filed Monday. "Indeed, Bill accepts full responsibility for his actions and failure to act at a critically significant moment in his life. He will bear that cross forever, no matter (how) the court impose(s) sentence." But they asked the judge as well to "exercise the most leniency possible when tailoring a sentence based upon Bill's dedication to the altruistic service of others."

Both Baroni and Kelly are seeking a probationary sentences. "A non-custodial sentence including probation, home confinement and community service as punishment, is an appropriate sentence for Bridget Kelly," said her attorney, Michael Critchley.

Prosecutors said the defense challenges should be denied. "Defendants like Baroni and Kelly, who have had the opportunity to do good work and build relationships with influential people, are not entitled to a get-out-of-jail-free card, particularly for serious crimes," they wrote.

The two former members of Gov. Chris Christie's inner circle are scheduled to be sentenced on Wednesday....

"Baroni and Kelly took all of these actions for the pettiest of reasons: to punish a local mayor and send him a nasty political message because he did not endorse Gov. Christie for re-election," wrote assistant U.S. attorneys Vikas Khanna, Lee Cortes Jr. and David Feder in a 55-page brief. "Nothing about Baroni's and Kelly's actions or motivations in committing these crimes mitigates their conduct." At the same time, they cited the "complete lack of remorse for their wrongful conduct."

The self-admitted architect of the scheme, David Wildstein, a former political blogger and friend of the governor who landed a patronage job at the Port Authority, testified against Baroni and Kelly. He pleaded guilty and is awaiting sentencing.

Prior related posts:

March 28, 2017 in Celebrity sentencings, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

After Hurst brought down Delaware death penalty, state legislators seek to bring it back

As reported in this lengthy local article, "legislators from both parties say they will try to re-institute the death penalty in Delaware this year with a measure expected to be introduced next week." Here is more:

“Delaware has a long history of applying capital punishment cautiously, judiciously, and infrequently,” said State Sen. Dave Lawson.  “These proposed changes would raise the imposition of such a sentence to a new level, removing what the court found objectionable and strengthening protections afforded defendants.”

The state Supreme Court last year ruled the capital punishment law unconstitutional because it allowed a judge, not a jury, to determine that "aggravating circumstances" made a crime heinous enough to deserve a death sentence.  There are 22 of those aggravating factors, such as crime committed against a police officer, crimes in which hostages are taken or if the crimes that are "outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind."  The Court's 4-1 decision also faulted the law for allowing juries to find those aggravating circumstances without a unanimous vote, using a standard of proof that was too low.

On Monday, a bipartisan group of legislators unveiled the "Extreme Crimes Prevention Act," which would change the law to address those concerns, effectively reinstating the punishment. It would require that juries unanimously decide that the aggravating circumstances merited a death sentence, and requires proof of those circumstances "beyond a reasonable doubt."  It also would require the judge and jury to weigh "mitigating factors," which would suggest the death penalty was unjust, against the "aggravating factors."...

In a news release, six legislators said they would co-sponsor the bill, including three Democrats and three Republicans. The release says the bill will be introduced in the House of Representatives next week. “It is impossible to quantify a crime not committed, but I believe the threat of capital punishment has altered criminal behavior and saved lives,” said State Rep. Steve Smyk, R-Milton, also a former police officer. “The reforms our bill will apply will restore an aspect of the Delaware Code that I believe deters crimes and protects the public.”

Brendan O'Neill, Delaware's chief public defender, immediately criticized the proposal. “History has proven us wrong every time we have passed a law authorizing state-sponsored execution of Delawareans," O'Neill said. "The current nationwide trend in criminal justice is to move away from the death penalty. Delaware should not once again put itself on the wrong side of history."  O'Neill argued capital punishment is not proven to be a deterrent, has a history of racial disparities and has proven expensive to prosecute and defend....

Rep. Sean Lynn, D-Dover and one of the death penalty's most vocal opponents, said he thinks the bill could make headway, but hopes it will be defeated.  "I think it passes the House based solely upon the vote count from the repeal effort last year," Lynn said.  "The mystery is, the question is, what happens in the Senate."

March 28, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Monday, March 27, 2017

Dynamic SCOTUS week for criminal law fans

I am on the road and thus going to be on-line and blogging only intermittently over the next few days. Perhaps for that reason, I am anticipating that the Supreme Court is going to be up to some interesting criminal work, given that this morning there will be an order list and Tuesday and Wednesday opinions may be released. In addition, a majority of cases up for oral argument this week involve criminal law issues.  Via SCOTUSblog postings, here are links/previews for the criminal law cases the Justices will be hearing on Tuesday and Wednesday:

Lee v. United States, No. 16-327, to be argued March 28, 2017

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Argument preview: Immigration, ineffective assistance and plea bargaining

 

Turner v. United States, No. 15-1503 to be argued March 29, 2017

Issue: Whether the petitioners' convictions must be set aside under Brady v. Maryland.

 

Honeycutt v. United States, No. 16-142 to be argued March 29, 2017

Issue: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

Argument preview: Can a conspiracy defendant be ordered to forfeit proceeds he never obtained?

March 27, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, March 26, 2017

"Recognizing Redemption: Old Criminal Records and Employment Outcomes"

The title of this post is the title of this new essay authored by Peter Leasure and Tia Stevens Andersen available via SSRN. Here is the abstract:

Upon completion of their sentences and when attempting to ‘reenter’ society, offenders face large barriers, often referred to as the ‘collateral consequences’ of conviction.  One of the largest barriers, given the stigma of a criminal record, is finding employment.  The problem primarily arises because of increases in the use of background checks by employers and the use of a criminal record to eliminate candidates.  Such a practice is partly understandable for employers, as a recent conviction is one of the best predictors of future criminal activity.

However, recent evidence suggests that an offender’s risk of reoffending decreases over time and can eventually come “close enough” to that of one who has never offended, even becoming lower than that risk for a random person within the general population.  However, no study has examined whether such knowledge has reached potential employers.  Our study sought to determine whether knowledge such as this has reached potential employers and asked whether there are employment outcome differences for hypothetical applicants with older criminal records.  Results indicate that those possessing older criminal records still face barriers when seeking employment.  Based on these findings, we present policy considerations.

March 26, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (13)

Notable perspectives on state and direction of modern criminal justice reform efforts

James Forman has this lengthy new commentary in the New York Times under the headlined "Justice Springs Eternal." I recommend the full piece to anyone and everyone seeking to take stock and reflect upon the current moment in the modern criminal justice reform movement.  Here are some extended excerpts:

After almost 50 years of relentless prison-building in the United States, of aggressive policing and a war on drugs that goes after our most vulnerable citizens, the movement for a more merciful criminal justice system had begun to seem, if not unstoppable, at least plenty powerful.

In 2015, the number of American prisoners declined more than 2 percent, the largest decrease since 1978.  By 2014, the incarceration rate for black men, while still stratospheric, had declined 23 percent from its peak in 2001.  Even growing numbers of Republicans were acknowledging the moral and fiscal imperative of shrinking the prison state.

And then came President Trump, who caricatures black neighborhoods as killing fields in desperate need of more stop-and-frisk policing, and Attorney General Jeff Sessions, who shrugs off evidence of systemic police abuses in cities like Chicago and Ferguson, Mo., and says that marijuana is “only slightly less awful” than heroin. (In fact, nearly 13,000 Americans died from heroin overdoses in 2015, while zero died from marijuana overdoses.)

Such dangerous, ill-informed pronouncements naturally induce weariness and dread.  Yet despite this bleak news from Washington, the movement to reduce the prison population and make our criminal justice system more humane is not in retreat. In fact, it is stronger than ever....

The most unexpected victories came in local races for prosecutor.  For decades, district attorney candidates competed to prove they were tougher on crime than their opponents.  That makes what happened last November so extraordinary: Prosecutors around the country campaigned on promises to charge fewer juveniles as adults, stop prosecuting low-level marijuana possession and seek the death penalty less often. And they did so in places with well-deserved reputations for rough justice, including Chicago, Houston and Tampa, Fla....

These state and local election results get less attention than Mr. Trump and Mr. Sessions, but they may have a bigger impact on incarceration rates.  While mass incarceration is a national crisis, it was built locally.  Ninety percent of American prisoners are in state, county and local jails, and around 85 percent of law enforcement officers are state and local, not federal.

Of course, the federal government exerts influence on law enforcement at all levels, both through rhetoric (the tone set in Washington filters down) and funding (Congress can encourage states to build more prisons by offering to foot part of the bill).  But most crime policy is set by state and local officials: police officers, pretrial services officers, local prosecutors, defense lawyers, juries (in the rare cases that don’t end in a plea agreement), judges, state legislatures, corrections departments and state parole boards.  During the tough-on-crime era that began in the 1970s, each of those entities became more punitive, and the cumulative impact of their policies and actions caused the number of people in prison or under criminal justice supervision to skyrocket.

Now, the reverse could also prove to be true.  If multiple individuals across multiple systems were to become less punitive, the prison population would fall.  This is why each state and local electoral victory — even those that don’t make news — is so significant. Mass incarceration will have to be dismantled the same way it was constructed: piecemeal, incrementally and, above all, locally.

The question is, what can be done to sustain such progress — especially at a time when crime is rising in some cities and the “law-and-order” mantra pioneered by Barry Goldwater and Richard Nixon in the 1960s has regained currency at the federal level?  The answer lies with a new breed of activism that has emerged in response to mass incarceration.  Reform groups and nonprofits are tackling issues and adopting strategies that an earlier generation of reformers did not....

[N]o aspect of our criminal justice system is as overworked and underfunded as public defender services.  Of the more than $200 billion that states and local governments spend on criminal justice each year, less than 2 percent goes to public defense.  Yet improving indigent defense gets scant attention in the conversation about how to fix our criminal justice system.

President Barack Obama “wrote a 55-page article about criminal justice reform and didn’t mention public defenders,” said Jonathan Rapping, the founder of Gideon’s Promise, an Atlanta-based group that is building a movement of public defenders to drive justice reform. “Eighty percent of the people charged with crimes in this country can’t afford a defense attorney,” Mr. Rapping added. “That means that 80 percent of the people in court depend on their public defender to be their voice, to tell their stories and to assert their humanity in a system that routinely denies it. Until we invest in public defenders, our system cannot and will not change.”

But what about the prosecutors whom public defenders and their clients face in court? This question points to one more critical item on the criminal justice reform agenda.  We must continue to recruit progressive prosecutors to run in local elections, support those who do, and hold them accountable if they win.  And let me go one step further: Law students and midcareer lawyers committed to criminal justice reform should consider signing up as assistant district attorneys in offices run by the new crop of progressive prosecutors.

This last suggestion, I confess, doesn’t come naturally to me. I’ve taught law school for almost 15 years, and during that time I’ve repeatedly counseled progressive students against working as prosecutors.  I had lots of reasons, but the main one was straightforward: You might go in as a reformer, but the office will change you, not the other way around.

I still believe this is true for most prosecutors’ offices.  But the recent election of prosecutors who criticize racial disparities and challenge wrongful convictions has caused me to change my mind.  Prosecutors committed to reform need talented staff members who share that commitment, and our best legal talent should flock to their offices.

Mr. Sessions and Mr. Trump have the largest microphones and will get the most attention.  But their agenda faces a rising countermovement across the country.  If we stay local and continue to learn from past defeats and recent victories, the movement for a fairer criminal justice system can outlast them and prevail.

March 26, 2017 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, March 24, 2017

Thanks to voter approval of Prop 57, "California prisons to free 9,500 inmates in 4 years" based on new early-release credit rules

The middle title of this post quotes the title of this new AP article and provides a bit of context.  For more explanation, here is more from the AP article:

Corrections officials adopted new criminal sentencing rules on Friday that aim to trim California’s prison population by 9,500 inmates after four years.

They include steps like reducing inmates’ sentences up to six months for earning a college degree and by up to a month each year for participating in self-help programs such as alcohol and substance abuse support groups and counseling, anger management, life skills, victim awareness, restorative justice, and parenting classes. Virtually any inmate except those on death row or those serving life-without-parole sentences is eligible to earn the credits and lower the sentence.

It’s the latest step in a years-long drive to dramatically lower the state’s prison population in response to federal court orders stemming from lawsuits by prison advocates and pressure to turn away from mass incarceration.

The changes follow voters’ approval of Proposition 57 in November. The initiative lets certain felons seek parole more quickly and gave corrections officials broad discretion to grant early release credits. “I think that it’s a monumental change for the organization and I think across the state, across the nation, I don’t think that anybody has altered how they are incarcerating offenders as much as what Prop 57 does,” Corrections Secretary Scott Kernan told The Associated Press.  The goal, he said, is to encourage inmates to start “doing something with their incarceration and not just sitting on their bunks.”

The changes in parole eligibility will take effect April 12 if they win initial approval from state regulators, with final approval by October after a public comment period. The earlier release credits and earlier parole consideration will be phased in starting May 1 while the public review is underway.

Police and particularly prosecutors fought the ballot initiative, arguing that it will release dangerous offenders sometimes years earlier than called for in their sentences. It also will put convicts more quickly into county probation systems that already are stretched. Kernan said he took some of their objections into account, for instance by barring sex offenders and third-strike career criminals from seeking earlier parole.

The changes are projected to eventually lower California’s prison population by about 7 percent and keep the state below the federal court-ordered population of about 116,000 inmates in the 34 adult prisons. The changes also will let the state phase out a long-running program that currently keeps nearly 4,300 inmates in private prisons in other states.

[T]he bulk of the reductions would come from steps like doubling the credits inmates receive for completing education and training programs, to a maximum of three months in any 12-month period, and expanding them to include violent offenders. Inmates would also start getting expanded credits for not violating prison rules starting May 1. That would typically reduce a violent offender’s sentence by 19 days each year, Kernan said, calling the reduction “relatively modest.”

March 24, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Former Penn State Prez convicted of single misdemeanor court of child endangerment for role in Sandusky sex offense scandal

As reported in this local article, "Graham B. Spanier, the former Pennsylvania State University president once considered one of the nation’s most prominent college leaders, was convicted Friday of endangering children by failing to act on signs that Jerry Sandusky was a serial sex predator." Here is more (with key sentencing factors highlighted):

After nearly 12 hours of deliberation, the jury of seven women and five men found Spanier guilty of a single misdemeanor count of endangerment. He was acquitted of a second endangerment count, as well as a felony count of conspiracy.

Still, the guilty verdict was a stunning blow to Spanier, 68, who had long proclaimed his innocence, and to his supporters, who had fiercely defended him and accused prosecutors of overreaching and unfairly staining the university. Many, including his wife, Sandra, a Penn State English professor, were in the Dauphin County Courtroom to hear the verdict. Spanier didn't appear to react when the verdict was read in a hushed courtroom.

Prosecutors said he agreed in 2001 with two Penn State administrators at the time, Athletic Director Tim Curley and Vice President Gary Schultz, not to report assistant coach Mike McQueary's claim that Sandusky was caught after hours with a young boy in a campus locker-room shower.

Pennsylvania Attorney General Josh Shapiro, who this year took over the office that spent had nearly a decade investigating and prosecuting the Sandusky case, said the verdict showed no one is above the law. "There are zero excuses when it comes to failing to report the abuse of children to authorities," he said.

Spanier's lawyer, Sam Silver, said they were heartened by the jury's acquittal on two counts and would appeal the guilty verdict on the third. That count had originally been a felony count, but jurors downgraded it to a misdemeanor.

Emails show that the three men knew Sandusky, a longtime assistant to head football coach Joe Paterno, had been investigated by university police after a similar claim in 1998. They first decided to report the 2001 incident to child-welfare authorites, but then changed that plan. Instead, they agreed to talk to Sandusky, bar him from bringing boys on campus, and share the report with the president of Second Mile, the charity Sandusky started for vulnerable children.

Sandusky sexually assaulted at least four more children after the 2001 incident, including another boy in a campus shower the next year, jurors were told. That victim was among the witnesses who testified this week. Both Schultz and Curley pleaded guilty and testified for the prosecution, although a deputy attorney general told jurors in her closing argument that they were not the government's star witnesses.

Spanier opted not to testify. His lawyers argued that the prosecution didn't present any evidence that Spanier knew Sandusky was a child sex abuser or that he knowingly conspired to cover up a crime. Spanier, who rose to national prominence as Penn State's leader for 16 years, has maintained that he acted appropriately in 2001 based on the information he had at the time. He contends he was told by his lieutenants that Sandusky's behavior with the boy in the shower amounted to "horseplay."

Followers of federal sentencing know that a jury's acquittal on some but not all counts may sometimes not be a huge sentencing benefit to defendants given that sentencing guideline recommendations can be based on acquitted and uncharged conduct established by merely a preponderance of the evidence.  But the impact of the split verdict in this high-profile state case is seemingly quite significant because the defendant is now only facing sentencing on a single misdemeanor count (which I presume means he could not get more than a year in jail).

I find it quite interesting (and somewhat curious) that a jury apparently has authority under Pennsylvania law to take a count that "had originally been a felony count" and decide it should be "downgraded to a misdemeanor."  This strikes me as fundamentally a sentencing decision being made by a jury, and as an interesting way for the jury in this particular case to send a (mixed) message about the defendant and his criminal activity.

March 24, 2017 in Celebrity sentencings, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, March 23, 2017

Those who can't federally prosecute anymore (thanks to Prez Trump), teach...

Especially because I come from a family of teachers, I have always found bemusing the old idiom "Those Who Can’t Do, Teach."  In this context, my latest bemusement (and the title of this post) is prompted by this new New Jersey Law Journal article headlined "Prosecutors Find Refuge in Law School Posts." Here is how the article starts:

What’s a federal prosecutor forced to resign by a new president to do? Rub elbows with the next generation of lawyers, apparently.

Three of the 46 recently ousted U.S. attorneys have in the past week unveiled plans to join law schools, eschewing — for now — the more well-traveled and lucrative path into Big Law.  A fourth U.S. attorney jumped over to the legal academy after resigning several months before President Donald Trump took office.

It’s not unheard of for former U.S. attorneys to find refuge on law campuses, though the concentration of such announcements over the past week is unusual and due to the simultaneous housecleaning of all holdover prosecutors appointed by former President Barack Obama.  Joining a law school can offer former prosecutors a way station as they mull their future endeavors, be it running for public office or diving into private practice. Or the academy can be their desired destination—several former federal prosecutors have gone on to serve as law deans or faculty fixtures.

“I think there will be more,” said David Hickton, the former U.S. Attorney for the Western District of Pennsylvania who resigned in November and two months later accepted a position at the University of Pittsburgh School of Law.  “There are two reasons for that: First, I think these things catch a little bit like a fever, and now that three of us have done it, others will look at it more closely than they would have before.  Secondly, the private practice of law is in a reshuffling and rebalancing.  There seems to be an oversupply of lawyers.”

The University of Michigan Law School kicked off the mini-trend on March 14 with an announcement that Barbara McQuade, who spent seven years as the U.S. Attorney for the Eastern District of Michigan, is joining the faculty in May to teach national security, criminal law, and criminal procedure.

Two days later, Seton Hall University School of Law announced that former U.S. Attorney for the District of New Jersey Paul Fishman will be a visiting fellow at the school. Then on Tuesday, New York University School of Law announced that Preet Bharara, former U.S. Attorney for the Southern District of New York and perhaps the most high-profile of the fired prosecutors, would join the school as a scholar in residence on April 1.

March 23, 2017 in Who Sentences? | Permalink | Comments (1)

Notable discussion of federal criminal justice issues at new Take Care blog

A new legal blog with a number of notable contributors, Take Care, has recently been created seeking to provide "insightful, accessible, and timely legal analysis of the Trump Administration." The blog has topical pages on Criminal Justice and Marijuana Legalization among many others, and here are a few recent posts from those pages readers might find of interest:

"Why Jeff Sessions’s Reversal on Private Prisons Is Dangerous" by Chiraag Bains

"Reliance Defenses in the Trump Era and Beyond" by Zachary Price

"Trump’s Approach to Crime & Punishment" by Chiraag Bains

March 23, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Wednesday, March 22, 2017

Department of Justice to host National Summit on Crime Reduction and Public Safety at the end of June

Acting Assistant Attorney General Alan Hanson gave this speech today at the Byrne Criminal Justice Innovation Program Symposium. The entire speech makes for an interesting and encouraging read, and here are a few passages that really caught my eye (including the reference to the coming National Summit mentioned in the post title):

As with any new Administration, I know there are lots of questions about priorities. The President just released his budget last week, and you can see that the White House is clearly focused on reducing crime in America’s communities. That’s good news for all us who care about public safety. I think it’s also important for everyone here to know — and this will come as no surprise — that for our Attorney General, the safety of our communities, and of those who protect them, is paramount.

Attorney General Sessions has made it clear that he’s willing to do what it takes to help cities reduce crime and violence. And having worked very closely with Jeff Sessions during his time in the Senate, I can tell you those are not empty words.  For anyone who cares about making sure our neighborhoods are places of promise and opportunity — where citizens can live, work and thrive — you can be sure you have an ally in our Attorney General.

In his short time in office, he has already set up a task force on crime reduction and public safety.  The goal of this task force is to work with federal, state and local law enforcement and community organizations to identify effective public safety strategies.  As part of this effort, the Department plans to host a National Summit on Crime Reduction and Public Safety at the end of June.  We hope to learn at that summit about local strategies that work and determine how we at the federal level can support those efforts....

As you know, the BCJI program offers a unique approach to public safety and neighborhood revitalization.  It’s place-based, community-oriented, driven by data and research and grounded in partnerships across agencies and across disciplines — all the elements you would expect in a successful public safety program.

The BCJI model builds on programs like Project Safe Neighborhoods that rely on coordination between federal, state and local law enforcement and prosecutors and on collaboration with researchers.  It focuses on crime hot spots, and on distressed areas where resources are most urgently needed.  Perhaps most importantly, it brings community leaders and law enforcement to the table together, which guarantees that this work isn’t being done in a vacuum.

This approach is not one we see often enough — which is a shame, because we know it works.  In Evansville, Indiana, for example, from 2013 to 2015, reported crime dropped 42 percent in the BCJI target neighborhood of Jacobsville.  Five hot spots in Milwaukee’s target area saw a 23 percent drop in violent crime over the same period. That’s compared to a 1 percent increase in the city as a whole.  And in Austin, Texas, during the 16 months of BCJI operation in the Rundberg neighborhood, violent crime dropped 15 percent.

These are impressive numbers, and they’re especially notable when many other cities are seeing a trend in the opposite direction....

This work — the work that you’re doing — is more important than ever.  Crime rates remain near historically low levels, but there’s no question that some cities are seeing troubling recent surges in violence — in some cases, dramatic increases.  This is a time for vigilance, not complacency, because, as the Attorney General said, “When crime rates move in the wrong direction, they can move quickly.”

March 22, 2017 in Criminal justice in the Trump Administration, National and State Crime Data, Who Sentences? | Permalink | Comments (2)

Interesting letters from and to US Senate about work of federal prosecutors in Trump era

Two new press pieces report on two notable new letters about the work of federal prosecutors in the new Administration.  Here are the headlines, links, and leads:

From Politico, "Senators press Sessions on drug policy changes":

Three Democratic senators are urging Attorney General Jeff Sessions not to return to policies that urge prosecutors to pursue long mandatory-minimum prison sentences against low-level drug offenders. Sens. Cory Booker of New Jersey, Dick Durbin of Illinois and Patrick Leahy of Vermont sent Sessions a letter Tuesday pleading with him not to abandon the Obama administration’s “Smart on Crime” initiative that generally led to earlier releases for those convicted of drug dealing in the federal system.

“Changes to current drug charging policies that lead to more mandatory minimum penalties in low-level, nonviolent drug cases will not increase public safety and will only increase taxpayer spending on our bloated federal prison system,” the senators wrote. “We are concerned about a possible shift in the Justice Department’s treatment of federal drug cases and the specter that mandatory minimum penalties may once again be used by the Justice Department on a routine basis as tools to prosecute low-level nonviolent drug offenses.”

From the Washington Examiner, "Groups urge greater oversight of US Attorney nominees":

Criminal justice reform advocates are urging the Senate Judiciary Committee to exercise greater oversight of United States Attorney nominees. Their letter, sent Tuesday and signed by the American Conservative Union Foundation, Families Against Mandatory Minimums, Right on Crime Coalition and R Street Institute, comes less than a month after the Trump administration dismissed 46 U.S. attorneys.

U.S. attorneys make up the 93 positions nationwide. After they are nominated by President Trump, the Senate Judiciary Committee must consider them and make recommendations to the full Senate about confirmation. The letter includes questions the four groups think the Senate committee should ask all nominees, noting that prosecutors "are central to the integrity of the entire criminal proceeding."

March 22, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Tuesday, March 21, 2017

Senate confirms two (holdover) nominees to US Sentencing Commission!!

Federal sentencing fans should be excited to hear that the full US Senate has now confirmed Judges Charles Breyer and Danny Reeves to be members of the United States Sentencing Commission.   (And, proving that somethings can still get done in a bipartisan manner inside the Beltway, this Senate reporting webpage indicates that the confirmation vote was unanimous.)  As previously noted, the original nominations of Judges Breyer and Reeves back in 2016 got stalled last Congress, but then outgoing Prez Obama thereafter renominated them for the US Sentencing Commission in January after the new Congress got to work.  I had been pessimistic about the prospects of these holdover nominees getting a hearing and a vote, but my pessimism was obviously misguided.  

Of particular importance, with Judges Breyer and Reeves now having been confirmed as full voting members of the US Sentencing Commission, they join Acting Chair Judge Bill Pryor and Commissioner Rachel Barkow to form a quorum on the USSC.  The Commission needs seven voting members to be fully staffed, but four members are sufficient to get stuff done if they all vote together on amendments and other action items.  Though it is not ideal for the USSC to have only four Commissioners rather than the full seven, it is literally "good enough for government work" and thus presents the possibility that the USSC can and will be more than just an effective research agency this year. 

As previously flagged here and now highlighted here at the USSC website, the Commission promulgated some notable proposed amendments in late 2016 when it still had a nearly full compliment of Commissioners.  Those proposed amendments have generated a whole lots of public comment, and I think they could prove to be quite consequential if formally passed in the coming months.  (A USSC hearing on the amendments is now scheduled for April 18.)  So, if the two new Commissioners agree to move forward with some form of the amendments promulgated late last year (which seems likely, especially because Judge Breyer was on the USSC during their development), it is now quite possible that the first big tangible federal sentencing development of the "Trump era" could involve significant federal sentencing guideline amendments.

March 21, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Ruling 6-2, SCOTUS holds in Manuel that Fourth Amendment claim can be brought contesting pretrial confinement

The one criminal ruling handed down by the Supreme Court this morning, Manuel v. City of Joliet, No. 14–9496 (S. Ct. March 21, 2017) (available here), has a majority opinion authored by Justice Kagan than gets started this way:

Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime.  The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement.  Our answer follows from settled precedent.  The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U. S. 103, 111 (1975).  And those constitutional protections apply even after the start of “legal process” in a criminal case — here, that is, after the judge’s determination of probable cause.  See Albright v. Oliver, 510 U. S. 266, 274 (1994) (plurality opinion); id., at 290 (Souter, J., concurring in judgment).  Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below).

Justice Alito wrote the chief dissent (which is joined by Justice Thomas), and it gets started this way:

I agree with the Court’s holding up to a point: The protection provided by the Fourth Amendment continues to apply after “the start of legal process,” ante, at 1, if legal process is understood to mean the issuance of an arrest warrant or what is called a “first appearance” under Illinois law and an “initial appearance” under federal law.  Ill. Comp. Stat., ch. 725, §§5/109–1(a), (e) (West Supp. 2015); Fed. Rule Crim. Proc. 5.  But if the Court means more — specifically, that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts — the Court stretches the concept of a seizure much too far.

What is perhaps most remarkable about the Court’s approach is that it entirely ignores the question that we agreed to decide, i.e., whether a claim of malicious prosecution may be brought under the Fourth Amendment.  I would decide that question and hold that the Fourth Amendment cannot house any such claim.  If a malicious prosecution claim may be brought under the Constitution, it must find some other home, presumably the Due Process Clause.

March 21, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Prez Trump to nominate District Judge Amul Thapar to Sixth Circuit

As reported in this official press release, "President Donald J. Trump today announced his intent to nominate Judge Amul R. Thapar of Kentucky for the U.S. Court of Appeals for the Sixth Circuit." Here is more from the statement concerning what I believe is Prez Trump's first judicial nomination other than his selection of Neil Gorsuch for the Supreme Court:

The son of Indian-American immigrants, Judge Thapar serves on the District Court for the Eastern District of Kentucky. With his 2008 nomination by President George W. Bush and subsequent confirmation and appointment, Judge Thapar became the Nation’s first Article III judge of South Asian descent. Before his service on the bench, he was the U.S. Attorney for the Eastern District of Kentucky. Before that, he served as an Assistant U.S. Attorney in the Southern District of Ohio and the District of Columbia. He began his legal career in private practice, after clerkships with Judge S. Arthur Spiegel on the District Court for the Southern District of Ohio and then with Judge Nathaniel R. Jones of the Court of Appeals for the Sixth Circuit.

I know Judge Thapar personally and think very highly of him (in part because he asked me to file an amicus brief in one of his highest-profile sentencing cases).  I expect that Judge Thapar will be easily confirmed by the Senate to the Sixth Circuit (though I suppose some Democrats may want to contest even lower-court confirmations as a show of resistance to Prez Trump in particular and to the GOP more generally).  In addition, shrewd SCOTUS watchers might also view this nomination as a sign that Prez Trump will again consider seriously Judge Thapar for the next Supreme Court opening.

March 21, 2017 in Who Sentences? | Permalink | Comments (0)

Monday, March 20, 2017

Continued consternation concerning capital charging decision in central Florida

I noted here on Friday the capital kerfuffle that has emerged in central Florida after newly-elected State Attorney Aramis Ayala announced that she would not pursue the death penalty for a cop killer or any other case during. As previously reported, Florida Governor Rick Scott reassigned the cop killer's case to another State Attorney.  But now, as this local article reports, today Ayala indicated she might try to contest having the case reassigned:

Orange-Osceola State Attorney Aramis Ayala on Monday said she is not willing to surrender the case of accused cop killer Markeith Loyd. Gov. Rick Scott removed her from the case Thursday, outraged when she said she would not seek the death penalty. He appointed a special prosecutor, Brad King.

At a court hearing in Orlando on Monday, Ayala sat one seat away from King, the state attorney for Florida’s Fifth Judicial Circuit. What the governor did was unprecedented, she told Orange-Osceola Chief Circuit Judge Frederick Lauten, and “overstepped his bounds.” She said she may file a legal challenge and asked the judge temporarily to halt the two murder cases involving Loyd while she figures out what to do.

Loyd is charged with killing Orlando police Lt. Debra Clayton on Jan. 9 and, several weeks earlier, his pregnant ex-girlfriend, Sade Dixon. Ayala said she at least wants to be part of Loyd’s prosecution.

More than 100 lawyers, including two former Florida Supreme Court justices and Gil Garcetti, who prosecuted celebrity O.J. Simpson during his 1995 murder trial, are backing Ayala. They have signed a letter asking Scott to give the case back to her. She is an independently elected official, and Scott is guilty of overreach, they say.

In Tallahassee, Scott defended his decision. When asked whether he would consider removing Ayala from office, he said, “We’ll continue to look at our options. Right now I’m focused on Markeith Loyd.” Asked if he would get involved in other potential death-penalty cases in Orange and Osceola counties, he said, “I’ll deal with that at the time.”

On Monday, the assistant finance director at the Seminole County Clerk of Court Office was placed on paid administrative leave after posting Facebook comments saying Ayala “should be tarred and feathered if not hung from a tree” because she refuses to seek the death penalty. Stan McCullars, author of the post, later deleted it. He could not be reached for comment. His boss, Grant Maloy, said those comments “don’t reflect my beliefs.”

Ayala is the first African-American state attorney in Florida and took office Jan. 3, serving Orange and Osceola counties. During her five-month election campaign, she did not state her position on the death penalty.

There are many interesting elements of this battle over prosecutorial discretion, and the intersection of race and gender and southern politics just adds layers to the story. And speaking of race, former prosecutor Chuck Hobbs has this interesting new Hill commentary on these matters which includes these interesting closing observations:

The irony in this is that the Black Lives Matter movement began in earnest after George Zimmerman was acquitted of murdering Trayvon Martin by a Sanford, Florida jury in 2013. A year before his acquittal, Gov. Scott replaced then Sanford State Attorney Norm Wolfinger with Jacksonville State Attorney Angela Corey after Wolfinger dragged his feet for almost 50 days before finally recusing himself. Scott's move back then was applauded by many black lawyers, civil rights activists and concerned citizens who wanted to ensure that the highest charges and attendant punishments would be sought against Zimmerman.

Today, Scott is being blasted by some lawyers and activists for meddling in Ayala's use of discretion not to seek the death penalty. Now the key distinction is that Wolfinger recused himself while Ayala did not, one that could lead to a fascinating legal battle where the courts may have to determine whether Scott illegally overreached by replacing Ayala, or whether her refusal to follow his dictates allowed him leave to replace her.

March 20, 2017 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (25)

"Capital Jurors in an Era of Death Penalty Decline"

The title of this post is the title of this notable paper authored by Brandon Garrett, Daniel Krauss and Nicholas Scurich.  Here is the abstract:

The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s.  Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty.  In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty.

We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California.  What we found was surprising.  Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty.  Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors.  Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility.

A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death.  Rare punishments may seem more arbitrary, even to those who find them morally acceptable.  We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed.

March 20, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Split Louisiana Supreme Court refuses to allow jury to hear about potentially applicable mandatory minimum sentence for habitual offender

I just learned today about an interesting set of opinions handed down last week by the Louisiana Supreme Court in Louisiana v. Guidry, No. 2016-KK-1412 (La. March 15, 2017) (available here).  This lengthy local article about the decision, headlined "Jurors shouldn't be told possible mandatory minimums for repeat offenders, La. Supreme Court rules," provides this basic summary of the ruling and its context:

Louisiana jurors should not be told of possible mandatory minimum sentences defendants might face under the state's habitual offender law, because the knowledge could distract from their duty to determine guilt or innocence in a case, the Louisiana Supreme Court said in a split decision issued late Wednesday (March 15).

In a 5-2 ruling, the high court said the issue of possible mandatory minimums for repeat defendants "is too far attenuated from the guilt phase of trial to be discussed before a jury," and for a trial judge to allow such disclosure constitutes error. Chief Justice Bernette J. Johnson and Justice John L. Weimer dissented.

The decision comes in response to the Orleans Parish case of Corei Guidry, an accused drug dealer whose trial before Criminal District Court Judge Byron C. Williams has been stayed over this issue since last July.  Guidry, 29, faces 10 to 50 years if found guilty of possession with the intent to distribute heroin. Should he be convicted of what would be his fourth felony offense, District Attorney Leon Cannizzaro's office would have the post-trial option to file a multiple-offender bill.  If Guidry's prior history of three or more felony convictions can be proven at a post-conviction hearing, the judge would be required under state law to impose a mandatory minimum sentence of 50 years to life.

Here is how the majority opinion in this case begins:

The issue presented in this case is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by the defendant if, after a conviction on the offense being tried, he were to be sentenced under the Habitual Offender Law. For the reasons set forth below, we find the district court erred in denying the State’s motion in limine, which sought to disallow the defendant from mentioning in argument the mandatory minimum sentence the defendant could be subject to under the Habitual Offender Law should the State seek to enhance his sentence under that law and should the court find the State has proved all of the elements to warrant enhancement of the sentence. We find the issue of the possible mandatory minimum sentences that may be imposed if the defendant is convicted and the State successfully pursues enhancement of the sentence under the Habitual Offender law is too attenuated from the guilt phase of trial to be discussed before a jury, because it shifts the focus of the jury from its duty to determine guilt or innocence to issues regarding sentencing, possibly causing confusion of the issues and inviting the jury to speculate as to why a defendant may be facing such a term of imprisonment. Accordingly, we reverse the district court’s ruling.

And here is how the chief dissenting opinion starts:

I respectfully dissent and would deny the writ because the state has shown no abuse of discretion in the trial court’s denial of the state’s motion to prohibit the defense from referencing the possible life sentence that defendant will all but certainly face if convicted and adjudged a habitual offender. It has long been settled that it is within the trial judge’s discretion, in instances in which a specific punishment is not statutorily mandated, to permit or deny instruction or argument as to sentencing. The majority has accepted the invitation of the Orleans Parish District Attorney’s Office to establish a new per se rule which will substantially limit trial court discretion to control the information given to the jury. Under this new rule, any reference — whether by the court or in argument from the parties — to the enhanced sentence a defendant will face if he is convicted and adjudged a habitual offender, will be impermissible, unless perhaps the defendant elects to testify and subject himself to cross-examination about his prior convictions.

The trial court has the discretion to permit or prohibit references to sentencing, other than for those sentences automatically mandated by statute, because the trial judge sits in the best position to determine whether the penalty provisions at issue, including those applicable under the Habitual Offender Law, constitute “law applicable to the case,” of which the jury should be apprised under the circumstances of the particular prosecution.

I am unpersuaded that the trial court abused its discretion here by refusing to prohibit the defense from referencing the potential habitual offender sentence, especially in light of the overwhelming evidence that the Orleans Parish District Attorney’s Office almost reflexively (through his assistant district attorneys) institutes habitual offender proceedings upon securing the conviction at trial of a defendant with a prior felony. The prosecuting attorneys in Orleans Parish routinely wield the Habitual Offender Law, both during pre-trial plea negotiations and, in the event that tactic fails to yield a guilty plea, after obtaining a conviction at trial, to secure the harsher punishment of even non-violent offenders.

As the start of the dissenting opinion hints, there is a significant back-story to both the substantive and procedural issues surrounding this Louisiana case and the application of the state's Habitual Offender law.  Because various opinions in Guidry engage in that back-story in various ways, the full opinion is definitely worth a full read.

March 20, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, March 19, 2017

What crime and punishment questions might you like to see asked of SCOTUS nominee Neil Gorsuch?

I am not really expecting any tough sentencing questions to be directed toward Judge Neil Gorsuch at his coming Supreme Court confirmation hearings, but that will not stop me from imagining what such questions might sound like or from encouraging readers to share their ideas on such questions.  And though I might readily spin out a long list of such questions here, I will be content for now to rattle off just two that come to mind on a Sunday afternoon during a brief break from bracket obsession:

A few prior related posts on Judge Gorsuch:

March 19, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"

The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:

In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication.  Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.

Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact.  It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.

In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution.  This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution.  Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.

March 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19)

Remarkable accounting of hundreds of Arizona offenders believing they were getting life with parole after parole abolished in state

The Arizona Republic has fascinating reporting here and here on the significant number of offenders in the Grand Canyon State who were seemingly given life with parole sentences after such sentences had been legislatively abolished. This lengthy main article is headlined "Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist." Here are excerpts: 

Murder is ugly, and murderers are not sympathetic characters. But justice is justice, and a deal is a deal.

We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly. Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years....

Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.

The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.

Valdez should have been sentenced to “life with chance of release after 25 years.” “Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician.  But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. Parole hasn't existed in Arizona since 1994.  Even if a judge's sentence includes parole, it still won't happen.  Yet since then, hundreds of defendants have been sentenced to life with chance of parole.

No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing.  He found out when he received a letter last December from The Republic.  He didn’t want to believe it. "Why would they sentence me with parole if it was abolished?" he asked in a return letter. “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”...

Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years.  The sentence has not existed since the law was changed in 1993.  But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.

Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it.  He took the issue to the Arizona Supreme Court, which oversees all state courts.

Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman. “I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”

Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences. Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides.  “People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said. But he also worried about whether it could be grounds for reversing a sentence.  “We don’t want to go back to the public and say we paved the way to letting go a murderer.”...

Several prisoners contacted by The Republic were unaware they were not really eligible for parole.  “When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic.  Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole. “The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”...

Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place. The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.

Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death.  Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.

The two sentences sound very similar.  And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result.  But they are substantially different.  Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner.  It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison.  And if denied, the prisoner could re-apply after six months to a year.

But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those.   In essence, the process ceased to be a rehabilitation matter and became a political decision. The earliest “life with chance of release” cases will reach the 25-year mark in 2019.  But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.

March 19, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

A Canadian perspective on constitutional proportionality review

Given the US Supreme Court's various struggles with proportionality review of sentences under the Eighth Amendment, I was intrigue to see this article recently posted on SSRN discussing how the Supreme Court of Canada has approached this same issue. The article authored by Lauren Witten is titled "Proportionality As a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties," and here is its abstract:

This article reconceives proportionality in sentencing as a constructive reasoning process rather than as an instrumental means of achieving a fair quantum of punishment.  It argues that the Supreme Court of Canada has wrongly adopted the latter view by determining the constitutionality of mandatory minimum sentences according to hypothetical outcomes. R v. Nur is a paradigmatic example of how this error presumes a false objectivity in proportionality assessments that leaves the Court vulnerable to critiques of judicial activism.

This paper claims that a process-based conception of proportionality offers a stronger defence of judicial discretion in sentencing than the current framework offers; it better respects institutional roles and provides a more principled basis for declaring the current structure of mandatory minimum penalties unconstitutional. The proportionality as a process theory contends that judges alone are capable of reconciling the values of three constituencies in sentencing — the offender, the judge, and the public — and that this tripartite justification is integral to moral punishment.  This paper shows how the process view of proportionality in sentencing is an implicit, but under-theorized, current in the law that should be explicitly developed as part of Canadian constitutional theory.

March 19, 2017 in Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (4)

Friday, March 17, 2017

Capital debates in central Florida after new prosecutor says she will no longer bring capital charges

This lengthy local article, headlined "Gov. Scott appoints special prosecutor after Ayala says she won't pursue death penalty," reports on a set of interesting developments in the heart of Florida concerning the heart of prosecutorial discretion and application of the death penalty.  Here are the details:

Gov. Rick Scott on Thursday removed Orange-Osceola State Attorney Aramis Ayala from the case of accused cop killer Markeith Loyd after she announced that she would not pursue the death penalty in his or any other case during her tenure.

In an executive order, Scott gave the case to Lake County State Attorney Brad King. “Earlier today, I called on State Attorney Ayala to immediately recuse herself from this case,” Scott said in a statement.  “She informed me this afternoon that she refuses to do that. She has made it clear that she will not fight for justice, and that is why I am using my executive authority to immediately reassign the case.”  Scott cited a state law allowing Florida’s governor to appoint a different prosecutor if he finds a “good and sufficient reason” to take it away from the original prosecutor.

Ayala issued a statement late Thursday, implying that her office would abide by Scott’s order. “Upon receipt of any lawful order, my office will follow that order and fully cooperate to ensure the successful prosecution of Markeith Loyd,” she said.

Ayala created a firestorm of criticism Thursday morning when she announced she would not seek the death penalty against Loyd or anyone else. “I have determined that doing so is not in the best interest of the community or the best interest of justice,” she said.

During a Thursday afternoon press conference, law enforcement leaders and families of victims expressed disappointment in Ayala’s intentions. Orlando Deputy Police Chief Robert Anzueto stood in front of Clayton’s widower, Seth Clayton, and spoke on his behalf. “My closure will be when Markeith Loyd is six-feet under,” Clayton told Anzueto....

Ayala’s announcement was a surprise and a position she had not made public before, despite a five-month campaign for public office, during which she was repeatedly asked about her stance. It also ran counter to information her employees had provided the Orlando Sentinel as recently as Tuesday.

Reaction came swiftly from state and local law enforcement officials, who were sharply critical. Attorney General Pam Bondi called the announcement “dangerous” and “a neglect of duty.”

But Ayala’s decision was heralded by death penalty opponents. “Ending use of the death penalty in Orange County is a step toward restoring a measure of trust and integrity in our criminal justice system,” said Adora Obi Nweze, president Florida State Conference NAACP. Orlando pastor Gabriel Salguero said, “By naming a broken program, Ms. Ayala creates hope in the community for working together to find better alternatives." Salguero leads the Calvario City Church and is president of the National Latino Evangelical Coalition....

Law enforcement officials, meanwhile, expressed their anger with the decision. Demings said he supported Scott’s decision to take the case away from Ayala. “To put it bluntly, the law enforcement officers of Central Florida are outraged,” Demings said....

State attorneys have wide discretion in who to charge with a crime, what charge to file and what penalty to seek. State law does not require them to seek the death penalty.  Ayala, 42, has been state attorney for Orange and Osceola counties since Jan. 3.  She upset incumbent Jeff Ashton in a primary election in August with the help of $1.4 million in donations from a political action committee with ties to billionaire George Soros, a liberal activist.

Ashton said Thursday that when Ayala worked for him, she did not oppose the death penalty. He called her newly-declared position “ridiculous.”...  When he was her boss, she was assigned the capital murder case of David Lewis Payne, who’s accused of abducting his ex-girlfriend, putting her in the trunk of her car then killing her in 2015. “She came to me. She was really excited because she got her first death penalty case,” he said of Ayala.

During her news conference, Ayala cited several reasons she will not pursue the death penalty.  Studies have shown, she said, that it provides no public safety benefits, that it is not a deterrent and that it winds up costing the state more than cases in which a defendant is sentenced to life in prison. It also gives victims’ families false hope, she said.

“Some victims will support and some will surely oppose my decision, but I have learned that death penalty traps many victims’ families in decades long cycle of uncertainty,” she said. “ … I cannot in good faith look a victim’s family in the face and promise that a death sentence handed down in our courts will ever result in execution.”...

Former State Attorney Lawson Lamar, who served six terms prior to Ashton, and before that was Orange County Sheriff, had this reaction to Ayala’s announcement: “I, frankly, was flabbergasted. … When you don’t have a death penalty, bad things happen.” He predicted it would mean more homicides in Orange and Osceola counties. Murders, rapists and criminals whose crimes carry a life sentence now have an incentive to kill witnesses, knowing that they face no greater penalty, he said.

“I’ve been telling people, ‘Give Aramis a chance. … She’s smart. She’s well spoken.’ I think this is a big mistake. I hope the backlash from it causes her to reconsider, because in life, as an elected official, you’re supposed to protect, defend and represent the people.”

March 17, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Taking a critical perspective on the work of former US Attorney for SDNY Preet Bharara

David Patton, executive director of the Federal Defenders of New York, penned this notable commentary for the Daily News concerning the work of fired SDNY US Attorney Preet Bharara.  The piece is headlined "An honest assessment of Preet Bharara's record: Harsh prosecutions put more African-Americans and Hispanics behind bars," and here are excerpts:

Last week the U.S. attorney for the Southern District of New York, Preet Bharara, was fired by President Trump, and the news media rushed to characterize his seven-year tenure.  Was he the "sheriff of Wall Street" for his insider trading prosecutions, a "showy pragmatist" for his affinity for television cameras, or the drainer of political swamps for his political corruption cases?  At least in part, he was surely all of those things.

But none of the tags do much to describe the actual work of his office and the overwhelming number of prosecutions it brings that have nothing to do with Wall Street or Albany.  Federal criminal cases rarely involve the rich or powerful.  Consistent with the rest of the country, 80% of federal defendants in the Southern District of New York are too poor to hire a lawyer.  Seventy percent are African-American or Hispanic.  The most commonly prosecuted offense type, by far, is drugs.

Last year, 45% of all federal criminal prosecutions in the Southern District were for drugs.  Two other leading offense types are firearms and immigration. The firearms cases are mostly gun possession cases transferred from state prosecutions in the Bronx.  They arise when NYPD officers search a car, apartment or person and claim they find a gun. Those arrested are plucked out of state court and brought to federal court for the express purpose of imposing lengthier sentences.  The immigration cases, so-called "illegal re-entry" cases, are prosecutions of people who were previously deported from the United States and came back.  Depending on their criminal history they typically face anywhere from two to seven years in prison before being removed from the United States again.

Bharara surely deserves credit for his efforts to clean up the financial industry and the political system.  But federal prosecutors should be judged primarily on how wisely, or not, they use the awesome power of their office to impose the many years of imprisonment on the thousands of people they choose to prosecute.  

And choose to prosecute they do. Unlike state and local prosecutors who largely react to police investigations and arrests, federal prosecutors have enormous discretion to decide who and what to prosecute.  Their jurisdictions are wide-ranging and overlapping, and many of the people they charge would otherwise be prosecuted in state court under less punitive laws.

Judging Bharara by those standards, his tenure was decidedly mixed.  His office greatly increased the prosecution of poor people of color using sprawling conspiracy and racketeering statutes to charge many low level drug dealers and addicts together with bigger players in the same indictments.  Some of the people charged were already serving time in state prisons for the same conduct.  Many others were caught up in "sting" operations in which the criminal conduct was initiated by agents and informants.

He also continued the programs begun by his predecessors in the Bush administration of prosecuting people for street crimes that were once considered the exclusive province of state courts.  Once again, those charges are brought almost entirely against poor people of color from the Bronx.  And across the board in drug and immigration cases, his office too often sought unnecessarily severe sentences....

When we evaluate the performance of top prosecutors, we should pay attention to whether they advance the goals of maintaining public safety while also reducing unnecessary and unequal terms of punishment.  And we should spend a lot less time concerned about how they handle the small sliver of cases that make the headlines.

March 17, 2017 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Eleventh Circuit panel declares Alabama murderer incompetent to be executed

A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed.  The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:  

Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent.  Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986).  The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007).  This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive.  See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013).  The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.

This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago.  In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline.  His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti.  Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing.  At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution.  To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him.  The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.”  Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed.  Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.

In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti.  See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)).  But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys.  Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.  One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection.  The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision.  We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.

A dissent authored by Judge Jordan gets started this way:

After reviewing the record, I believe that Vernon Madison is currently incompetent.  I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

March 17, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Wednesday, March 15, 2017

AG Sessions talks again about "the challenge of violent crime and drugs" and about support for law enforcement

Jeff-sessions-attorney-general-630x354The Department of Justice now has posted here an extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia (which just happens to be where I am headed tomorrow for a faculty workshop).  Those who have been following what AG Sessions has been saying in recent months (and really throughout his whole career) will likely not find anything all that new or surprising in this latest speech.  Nevertheless, I still found the entire speech and especially the following passages worth flagging in this space.  And I have highlight two particular sentences in the discussion of drugs that I have not previously seen and that could and perhaps should capture a lot of attention:

First, we should keep in mind some context. Overall, crime rates in our country remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak....  In the past four decades, we have won great victories against crime in America. This happened under leadership from both political parties, and thanks above all to the work of prosecutors and good police using data-driven methods and professional training.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen warning signs that this progress is now at risk.  The latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 10 percent — the largest increase since 1968.  And all of this is taking place amid an unprecedented epidemic of heroin and opioid abuse....

My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend.  I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place.  While we can hope for the best, we can’t afford to be complacent.  When crime rates move in the wrong direction, they can move quickly....

Last month the President gave us clear direction, issuing three executive orders that direct the federal government to reduce crime and restore public safety. This task will be a top priority of the Department of Justice during my time as Attorney General. I’d like to talk briefly about how we’re tackling this challenge.

First, we’re making sure the federal government focuses our resources and efforts on this surge in violent crime.  Two weeks ago, I announced the formation of a Department of Justice Task Force on Crime Reduction and Public Safety. It includes crime reduction experts from throughout the Department of Justice, including the heads of the FBI, the ATF, the DEA and the U.S. Marshals Service.  The task force will evaluate everything we are doing at the federal level.

Second: We need to use every lawful tool we have to get the most violent offenders off our streets. In recent years, we have seen a significant shift in the priority given to prosecuting firearms offenders at the federal level.  This trend will end.  This Department of Justice will systematically prosecute criminals who use guns in committing crimes....

Third: To turn back this rising tide of violent crime, we need to confront the heroin and opioid crisis in our nation — and dismantle the transnational cartels that bring drugs and violence into our neighborhoods.

Our nation is in the throes of a heroin and opioid epidemic.  Overdose deaths more than tripled between 2010 and 2014.  According to the CDC, about 140 Americans on average now die from a drug overdose each day.  That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks.  Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery.  We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention.  Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.  One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital. But treatment often comes too late to save people from addiction or death.  So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use.  But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store.  And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction.  We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

Finally: The federal government alone cannot meet the challenge of violent crime and drugs — so we need to protect and support our brave men and women in law enforcement. About 85 percent of all law enforcement officers in our nation are not federal, but state and local. These are the men and women on the front lines — the ones doing most of the tough and often dangerous work that keeps our neighborhoods safe....

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. We need to resist the temptation to ignore or downplay this crisis. Instead, we must tackle it head-on, to ensure justice and safety for all Americans. We will enforce our laws and put bad men behind bars. We will fight the scourge of drug abuse. And we will support the brave men and women of law enforcement, as they work day and night to protect us. Together, let us act to meet this challenge, so that our children will not look back and say that we let slip from our grasp all we had done to make America a safer place.

I find it quite interesting and significant that AG Sessions, in the first sentence highlighted above, has highlighted the severity of the current US drug problem in term of the number of deaths caused by the worst and deadliest terrorist attack in US history.  The decision to frame the problem in these terms reveals just how seriously the Attorney General sees the problem, and I am in some sense inclined to respect and applaud this framing in part because I fear a lot of people who have not been directly touched by the modern opioid epidemic do not fully appreciate how many lives are being lost to it.

Ironically, though, the kind of wise intensity I see reflected in the first sentence highlighted above is undercut but what strikes me as a misguided intensity reflected in the second sentence highlighted above.  Because tens of thousands of individuals are dying for opioid overdoses and nobody dies from a marijuana overdoes, it make a whole lot of sense to me that a whole lot of people would see a whole lot of value in encouraging people to trade an opioid dependency for a marijuana dependency.  (And this simple analysis, of course, leaves out the statistically reality that the vast majority of people who use marijuana do not become dependent on it.) 

March 15, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Gun policy and sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (20)

Noting how prisons serve as a kind of public works program in rural areas

This recent Business Insider commentary authored by John Eason provides an important reminder of some economic realities integral to the modern American prison system. The piece is headlined "The prison business is booming in rural America and there's no end in sight," and here are excerpts:

While much has been written about mass incarceration, less is known about the prison building boom and the role it plays in slowing reform of the criminal justice system.  As I explain in my book, "Big House on the Prairie," the number of prisons in the US swelled between 1970 and 2000, from 511 to nearly 1,663.  Prisons constructed during that time cover nearly 600 square miles, an area roughly half the size of Rhode Island. More than 80 percent of these facilities are operated by states, approximately 10 percent are federal facilities and the rest are private.

The prison boom is a massive public works program that has taken place virtually unnoticed because roughly 70 percent of prisons were built in rural communities. Most of this prison building has occurred in conservative southern states like Florida, Georgia, Oklahoma and Texas.  Much of how we think about prison building is clouded by the legacy of racism and economic exploitation endemic to the US criminal justice system. Many feel that prison building is the end product of racist policies and practices, but my research turned up a more complicated relationship.

People of color have undoubtedly suffered from the expansion of prisons, where they are disproportionately locked up, but they have also benefited. Blacks and Latinos are overrepresented among the nation’s 450,000 correctional officers.  Prisons are also more likely to be built in towns with higher black and Latino populations. Many may be surprised to learn that residents of these often distressed rural communities view local prisons in a positive light....

Because rural communities have grown increasingly dependent on prisons, they will not be easily convinced to give them up.  My research shows that for many struggling rural communities plagued by problems most associate with urban neighborhoods — poverty, crime, residential segregation, de-industrialization and failing schools — prisons offer a means of survival. Prisons provide a short-term boost to the local economy by increasing median family income and home value while reducing unemployment and poverty....

It doesn’t look like the footprint of prisons will be shrinking any time soon. Given our current political climate, it’s more likely we will see more prisons built. Weaning rural communities off the prison economy will mean considering alternative investment strategies like green industries. If we do not provide creative alternatives to depressed rural communities, we stand little chance in reducing their over-reliance on prisons.

March 15, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Tuesday, March 14, 2017

Split en banc Eleventh Circuit writes at length restricting habeas authority in ACCA case

The Eleventh Circuit has a massive new en banc opinion about federal habeas law in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., No. 12-14989 (11th Cir. March 14, 2017) (available here). The start of the majority opinion in McCarthan, which was authored by Judge Willaim Pryor, should provide enough context for interested readers to figure out why this McCarthan decision engendered a bunch of concurring and dissenting opinions. Here is the start of a whole set of opinions that together runs nearly 200 pages:

This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence.  Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).  When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e).  He did not appeal that sentence.  When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus.  McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.

For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice.  See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013).  Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them.  We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner’s sentence “inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e).  We affirm the dismissal of McCarthan’s petition for a writ of habeas corpus.

March 14, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Prison Policy Initiative releases 2017 version of "Mass Incarceration: The Whole Pie"

Pie2017The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report, which is available at this link (along with a larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:

Wait, does the United States have 1.3 million or more than 2 million people in prison? Are most people in state and federal prisons locked up for drug offenses? Frustrating questions like these abound because our systems of confinement are so fragmented and controlled by various entities. There is a lot of interesting and valuable research out there, but varying definitions make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

Pie chart showing the number of people locked up on a given day in the United States by facility type and the underlying offense using the newest data available in March 2017.Pie chart showing the number of people locked up on a given day in the United States in jails, by convicted and not convicted status, and by the underlying offense, using the newest data available in March 2017. Graph showing the number of people in jails from 1983 to 2014 by whether they have been convicted or not. The number of convicted people stopped growing in 1999, but the number of unconvicted people continues to grow.Graph showing, for the years 2007 to 2015, the number of people ~~ 10.9 to 13.6 million ~~ a year who are admitted to jail per year and the number of people ~~ about 700,000 to 800,000 ~~ who are in jail on a given day.Graph showing the incarcerated populations in federal prisons, state prisons, and local jails from 1925 to 2015. The state prison and jail populations grew exponentially in the 1980s and 1990s, and began to decline slowly after 2008, while federal prison populations have always been smaller and show less change over time.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 641,000 people walk out of prison gates, but people go to jail over 11 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (187,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses.

All of the offense data presented comes with an important set of caveats. A person in prison for multiple offenses is reported only for the most serious offense so, for example, there are people in prison for “violent” offenses who might have also been convicted of a drug offense. Further, almost all convictions are the result of plea bargains, where people plead guilty to a lesser offense, perhaps of a different category or one that they may not have actually committed.

And many of these categories group together people convicted of a wide range of offenses. For example, “murder” is generally considered to be an extremely serious offense, but “murder” groups together the rare group of serial killers, with people who committed acts that are unlikely for reasons of circumstance or advanced age to ever happen again, with offenses that the average American may not consider to be murder at all. For example, the felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. Driving a getaway car during a bank robbery where someone was accidentally killed is indeed a serious offense, but many may be surprised that this is considered murder.

March 14, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Florida law now officially requires jury unanimity for death verdicts

Roughly fourteen months after the Supreme Court in Hurst found constitutional problems with the way Florida operationalized juries in its capital punishment scheme, and after some legislative and litigation fits and starts, the state's lawmakers have now reformed its system to require jury unanimity at sentencing.  This local article, headlined "Gov. Rick Scott signs new unanimous jury standard for death penalty into law," reports on the basics:

It now takes a unanimous jury to sentence someone to death in the state of Florida. Gov. Rick Scott on Monday night signed into law a new requirement that raises the jury standard for death penalty cases from 10-2.  The legal change was made necessary by a Florida Supreme Court ruling in October that found the state's sentencing laws unconstitutional.

The Legislature passed the new rules (SB 280) overwhelmingly last week.  The death penalty fix is the first major law passed and signed in the 2017 session.  Florida joins most other states in requiring unanimous juries....  "Our goal was that the death penalty cases proceed in an orderly manner under a law that was constitutional," Senate President Joe Negron, R-Stuart, said last week.

Scott's signature also allows prosecutors to move forward with cases in which they plan to seek the death penalty.  Uncertainty around the court's order in Hurst vs. Florida put a pause on new death sentences.

In passing the death penalty fix, the Legislature opted not to address the hundreds of existing death row inmates whose cases were decided under sentencing laws thrown out by the courts.  Rep. Chris Sprowls, R-Palm Harbor, a former prosecutor and the House Judiciary chairman, said he wanted to deal with this issue and left it up to the courts to handle existing death cases decided by a nonunanimous jury.  Some of those inmates have already been granted a new sentencing hearing.

Just three lawmakers voted against the death penalty fix: Two House Democrats, Joseph Geller of Aventura and Robert Asencio of Miami, who oppose the death penalty on moral grounds; and Republican Rep. Blaise Ingoglia of Spring Hill. His was a protest vote, Ingoglia said.  "With a unanimous jury, you need all 12," he said Friday.  "You can have one activist and one vote and prevent the death penalty from kicking in."

March 14, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, March 13, 2017

A notable pitch (from a notable author) to look at criminal justice reform as a "women's issue"

The Hill today published this notable new commentary authored by Mia Love and Holly Harris under the headline "Criminal justice reform: A women’s issue." I recommend the piece in full, and here are excerpts:

The media has devoted a lot of ink and airtime to the sky-high incarceration rates here in the U.S., but sadly, that coverage often ignores a key demographic: women.  The female prison population has spiked in recent years, and since Wednesday marked International Women’s Day, we thought this would be a good time to shed more light on this disturbing trend.

Between 1980 and 2014, the number of women in prison grew by an alarming 700 percent — increasing at a rate 50 percent higher than men. Over the same period, the number of women in local jails has increased 14-fold. This impact falls disproportionately on African-American women, whose rate of imprisonment is double that of white women.

Those statistics are even more disheartening when you consider approximately 60 percent of women in prison are mothers. We need to take a serious look at what it means for those women — and the children they leave behind....

Women in the federal system are more likely to be incarcerated for a nonviolent offense.  Some 94 percent of women in federal prison are serving a sentence for nonviolent drug, property or public-order offenses, as well as 63 percent of women in state prisons.  Our system needs to do better addressing the root causes of these crimes and offering alternatives to incarceration for women who pose no grave threat to society.  We need to pursue policies that offer better access to community supervision programs and treatment instead of jail time for those with drug addictions....

While female incarceration declined 2 percentage points between 2014 and 2015, criminal-justice reform is still as critical as ever.  As the laboratories of democracy, red and blue states across our nation have enacted innovative reforms that have prioritized public safety while strengthening families, ultimately benefiting society as a whole.

We must pay more attention to the spike in female inmates and, more importantly, the emotional and financial costs of women in and out of prison.  As a society we are not only failing ourselves, we are failing our mothers, wives, and sisters.  For that reason — and so many others — we hope Congress moves comprehensive criminal-justice reform to the president’s desk in 2017.

Astute readers perhaps recall that Mia Love holds the notable distinction of being the first black Republican woman ever elected to Congress. As this post from 2014 after her election reveals, I had an inkling that Mia Love might be inclined to become an important voice in support of criminal justice reform.  This latest commentary suggests that inkling is proving accurate.

March 13, 2017 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

Sunday, March 12, 2017

"Reassessing Prosecutorial Power Through the Lens of Mass Incarceration"

The title of this post is the title of this new and notable book review authored by Jeffrey Bellin. Here is the abstract:

Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff’s highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform."  The book concludes that police, legislators, and judges are not to blame for Mass Incarceration.  Instead, “the most powerful actors in the entire criminal justice system” (prosecutors) have used their “almost unfettered, unreviewable power to determine who gets sent to prison and for how long.”

Locked In’s data-driven thesis aligns neatly with the academic consensus.  If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product — Mass Incarceration.  The only problem is that it probably isn’t right.  While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data.  With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators.  This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration.  It also says something profound about prosecutorial power.

Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction — to dictate sanctions — fold under scrutiny.  When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.

March 12, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Reviewing why a Justice Gorsuch "might be hard to pigeonhole on criminal justice issues"

We are now only a week from the start of confirmation hearings for Supreme Court nominee Neil Gorsuch, and this new extended AP article reviews Judge Gorsuch's record on the cases that I usually give the most attention.  The article is headlined "Gorsuch has ruled for police, and suspects, in crime cases," and here are excerpts:

Judge Neil Gorsuch wasn't convinced that a teenager who made burping sounds in a classroom should be arrested, handcuffed and taken to juvenile detention in a police car. Gorsuch said the 13-year-old student from Albuquerque, New Mexico, should have been able to sue the arresting officer for excessive force. His powerful dissent in the case last year offers a glimpse of how Gorsuch — a favorite among conservatives — might be hard to pigeonhole on criminal justice issues if he is confirmed to the Supreme Court....

During a decade on the federal appeals court in Denver, Gorsuch has raised concerns about intrusive government searches and seizures that he found to violate constitutional rights.  He generally has ruled against defendants appealing their convictions and those who claim they received unfair trials.  But he also has warned in writings and speeches about the danger of having too many criminal laws on the books.

"What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?" he said in a 2013 speech.  That skepticism seems to align him with the late Justice Antonin Scalia, a strong believer in protecting people from overzealous police and prosecutors. Scalia at times sided with liberals in tossing out evidence that breached privacy rights and in strengthening the right to confront accusers in court.

Liberal groups are opposing Gorsuch's nomination, in part based on views that his overall record on criminal justice is too harsh.  "At a time when the abuses of our criminal justice system are becoming a national crisis, we cannot confirm a justice who does not understand the role of the Supreme Court to protect the most vulnerable among us," said a report from People for the American Way, a liberal advocacy group.

When Gorsuch has said there are too many criminal laws, he has often focused on business regulations, such as requirements that mattress sellers preserve mattress tags or that lobster importers use cardboard instead of plastic....

Some of his opinions have faulted police for seizing evidence in violation of the Fourth Amendment, which bars unreasonable searches.  In a case last year, Gorsuch parted from the two-judge majority in a ruling that said police had a right to walk onto a man's property to knock on the front door even though there were several "No Trespassing" signs in the yard.  Gorsuch mocked the majority's opinion, saying it gave government agents the right to "invade" a homeowner's property "whatever the homeowner may say or do about it."...

Paul Rothstein, a professor at Georgetown University Law Center, said Gorsuch appears to have a mixed record in criminal cases and "seems to call them as he sees them."  "I think his primary area of concern for the citizen is in the privacy of your home or your private belongings," Rothstein said. "He believes there is a private area and he's pretty strong about that."

Gorsuch has been less sympathetic to defendants in other rulings.  In a 2012 case, Gorsuch dissented from a majority opinion in which his colleagues sided with an Oklahoma man seeking to overturn his murder conviction due to an ineffective lawyer.  The lawyer had advised his client to reject a plea agreement that called for a 10-year sentence. Instead, the man went to trial, was convicted and sentenced to life in prison.

The majority said the lawyer's decision to reject the plea had "disastrous results" for his client.  But Gorsuch said the man's right to effective representation was not violated because he was later convicted in a fair trial.

A few prior related posts on Judge Gorsuch:

March 12, 2017 in Who Sentences? | Permalink | Comments (3)

Thursday, March 09, 2017

Group of Senators revive idea of a National Criminal Justice Commission

Long time readers may recall that, way back in 2009, then-Senator Jim Webb introduced legislation to create a National Criminal Justice Commission.  As reported here by The Crime Report, what was old is now new again, and might this time have a chance to become a reality:

A bipartisan group of more than 20 U.S. senators is making another attempt to establish the first national commission in 50 years to study the criminal justice system and make recommendations on improving it.  Smaller groups of senators have pursued the idea in recent years, but it has failed to amass enough support to pass.

One of the lead sponsors, Sen. Gary Peters (D-MI), said, “Our criminal justice system is built on the pillars of fairness and equality, but too many Americans see growing challenges in our justice system ranging from overburdened courts and unsustainable incarceration costs to strained relationships between law enforcement and the communities they serve.”

Joined by Sens. John Cornyn (R-TX) and Lindsey Graham (R-SC) as primary sponsors, the bill would establish a 14-member, bipartisan National Criminal Justice Commission that would conduct an 18-month, comprehensive review of the national criminal justice system. It would then issue recommendations for “changes in oversight, policies, practices, and laws to reduce crime, increase public safety and promote confidence in the criminal justice system.”

The panel would be composed of appointees of President Trump and congressional leaders of both parties, including experts on law enforcement, criminal justice, victims’ rights, civil liberties, and social services....

Under an order from President Trump, Attorney General Jeff Sessions recently set up a Task Force on Crime Reduction and Public Safety, but that panel is being run by heads of federal law enforcement agencies and does not include officials and advocates outside the Justice Department.

The senators’ proposal reflects a longstanding priority of the International Association of Chiefs of Police, and is also backed by the Fraternal Order of Police, which supported Trump’s election. Officials of a range of other organizations immediately backed the idea, including the Leadership Conference on Civil and Human Rights, the NAACP, the National Urban League, National Sheriffs’ Association, International CURE (Citizens United for the Rehabilitation of Errants), and the Major County Sheriffs of America.

It has already attracted support from an ideological mix of senators, ranging from Republicans Marco Rubio of Florida and Orrin Hatch of Utah on the right to Democrats Bill Nelson of Florida, Kirsten Gillibrand of New York, and Kamala Harris of California on the left.

March 9, 2017 in National and State Crime Data, Who Sentences? | Permalink | Comments (2)

Wednesday, March 08, 2017

AG Sesssions issue memo directing US Attorneys focus on "drivers of violent crime" ... and indicating change to Holder's charging memos forthcoming

As reported via this official DOJ Press release, "Attorney General Jeff Sessions today directed federal prosecutors nationwide to engage in a focused effort to investigate, prosecute and deter the most violent offenders." Here is more from the release:

This builds on the announcement last week of the creation of the U.S. Department of Justice Task Force on Crime Reduction and Public Safety, which is central to the Attorney General’s commitment to combatting illegal immigration and violent crime, such as drug trafficking, gang violence and gun crimes, and to restoring public safety to all of the nation’s communities.

“Turning back our nation’s recent rise in violent crime is a top priority for the Department of Justice, and it requires decisive action from our federal prosecutors,” said Attorney General Sessions. “I’m urging each of them to continue working closely with their counterparts at all levels, and to use every tool we have to put violent offenders behind bars and keep our citizens safe.”

In a memo to federal prosecutors in the department’s 94 United States Attorney’s Offices, the Attorney General made clear that prosecuting violent criminals is a high priority and prosecutors should work closely with their federal, state, local and tribal law enforcement partners to target the most violent offenders in each district. Working together, law enforcement at every level should determine which venue – federal or state – would best get those identified immediately off our streets and punished appropriately for their crimes.

The memo states when federal prosecution is determined appropriate, federal prosecutors should ensure the individuals driving violent crime in their district are prosecuted using the tools at their disposal, which may include firearms offenses, including possession and straw purchasing offenses; possession of a firearm during and in relation to a violent crime or drug trafficking offense; Hobbs Act robbery; carjacking; violent crime in aid of racketeering; Racketeering Influenced and Corrupt Organizations Act; and drug offenses under the Controlled Substances Act, among others.

The memo is available at this link, and hard-core federal sentencing fans might be most intrigued by a line that appears at the end of the memo which states that "an updated memorandum for charging in all criminal cases will be forthcoming."  That line suggests to me that pretty soon we will be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013.

March 8, 2017 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10)

"Public Crime Registries Rarely Work, So Why Do They Continue to Grow?"

The question in the title of this post is the headline of this new Pacific Standard commentary authored by Emmanuel Felton. Here are excerpts: 

[T]he idea of making information about offenders public has proven immensely popular. A 2005 Gallup poll showed that virtually all Americans  —  94 percent  — supported public sex offender registries and about two-thirds of those surveyed said they weren’t even somewhat concerned about how the public nature of registries affected those forced to sign up. With the Internet providing states with a cheap and easy way to get information into the hands of citizens, lawmakers soon found registries to be a relatively inexpensive solution to complex problems, says Amanda Agan, a Rutgers University professor who studies the economics of crime.

“These policies were well intentioned and they sounded like they might work. And on top of that they are relatively low cost,” Agan says. “But now we have all of this evidence that they just don’t work, but the problem is it’s very difficult to start pulling back. There would be a public outcry.”

The Murderer and Violent Offender Against Youth Registry started off as a fix for a legislature-made problem. In the mid-1990s, at the height of the tough-on-crime movement, Illinois added a host of offenses against children to their sex offender rolls, including first-degree murder, kidnapping, and child abduction, regardless of whether the crime involved a sex offense. Responding to concerns that it was unfair to include those offenders  —  take, for example, the case of a 13-year-old girl who stabbed her older brother with a kitchen knife after a fight over a shower cap  —  on the sex crime list, the state created this new violent offender registry. That created a registry for people convicted of a set of violent crimes against children. That list was later expanded to include murderers like Armstrong, whose crimes didn’t involve children, when, in 2011, state lawmakers passed Andrea’s Law, named for a college student strangled to death by her ex-boyfriend.

While Illinois lawmakers may be the most zealous employers of public registries  —  the state also maintains an online list of those convicted of making methamphetamine  —  the state is far from alone. Oklahoma also has a violent crime registry similar to Illinois’ and Kansas has a meth registry like Illinois’. Indiana, Kansas, and Montana still have combined sex and violent offender registries. Florida, on the other hand, makes folks convicted of three violent felonies sign up for a public registry. Tennessee also had a meth registry, before expanding it into a much more encompassing drug offender registry. And among the more original uses, Tennessee also has an animal abuser registry and Utah recently launched a registry for people convicted of certain white-collar crimes.

While there isn’t much research about the effectiveness of newer crime registries like those for murderers, there has been a lot of research into sex offender registries. Jill Levenson, a professor of social work at Barry University, says that research has been conclusive: those registries simply haven’t reduced sex crimes. She says that’s because they obscure the real threat to children, being abused by someone close to them, and greatly overemphasize the incredibly rare occurrences of children being abducted by people they don’t know.

“Stranger abductions of children happen just 115 times a year in this country,” says Levenson, who studies the effectiveness of policies that aim to reduce sexual violence. “While there’s no question that that’s 115 too many, there are 80 million children in this country. The problem with sex offender registries is they obscure the real threat — over 90 percent of children who are sexually abused are abused by people they know.”

St. Louis University Law School professor Molly Wilson says the concept of cognitive availability helps explain why threats like stranger danger remain so prominent in the making of our criminal codes. Cognitive availability describes a logical fallacy where decision-makers tend to overemphasize the importance of examples that quickly come to mind. That leads people to overestimate threats with really salacious details, Wilson says. “When you ask someone to estimate how serious a threat is, they search their minds,” says Wilson, who also holds a doctorate degree in psychology. “What they come to first is what is cognitively available, and that’s these really vivid examples that from an empirical standpoint are pretty rare. The human mind is designed to think of the sensory cases that imprint details — an image of the bicycle that a girl was riding sticking out of the bushes.”

Cognitive availability is a particularly compelling explanation for why many registries quickly expanded to murderers despite the fact that just 1 percent of murderers kill again. Similarly, just 6 percent of people convicted of rape or sexual assault repeated in the five-year follow-up period covered by a recent Bureau of Justice Statistics report. That’s compared to a 13 percent same-crime recidivism rate for robbers and a 34 percent rate for those convicted of assault. Despite repeated attempts by researchers to link lower sex offender recidivism rates with the passage of registration laws, there’s been no conclusive evidence supporting that hypothesis. In fact, there is some evidence that these laws actually increase recidivism as they effectively act as anti-re-entry programs.

Arthur Lurigio, a clinical psychologist and a professor of criminal justice and psychology at Loyola University Chicago, says the rise of registries underscores a central failure of America’s criminal justice system: “ We are failing to recognize the possibility of human change.”...

Wayne Logan — whose 2009 book, Knowledge as Power: Criminal Registration and Community Notification Laws in America, charts the rise of crime registries over 75 years — says there has been some relaxing of registration rules for sex offenders in recent years. He points to California’s public registry, which no longer includes those caught soliciting prostitutes and so-called Romeo and Juliet offenses—those are the cases where there’s consensual sex between teenagers, one of whom is a minor. “You see some unwinding,” says Logan, a professor of law at Florida State University. “But the overall trend is expansion. It’s a very flexible technology, it can work for arsonists or meth makers or white-collar criminals. It’s social control on the cheap.”

March 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)