Tuesday, February 25, 2014
Thanks to Gov. Brown, Plata, budget woes, state court rulings and/or _____, California lifers now have a real chance for parole
The weird "Mad-Libs" title to this post is my reaction and query in response to this notable new AP report headlined "California 'lifers' leaving prison at record pace." Here are the details:
Nearly 1,400 lifers in California's prisons have been released over the past three years in a sharp turnaround in a state where murderers and others sentenced to life with the possibility of parole almost never got out. Gov. Jerry Brown has granted parole to a record number of inmates with life sentences since he took office in January 2011, going along with parole board decisions about 82 percent of the time.
Brown's predecessor, Arnold Schwarzenegger, authorized the release of 557 lifers during his six-year term, sustaining the board at a 27 percent clip. Before that, Gov. Gray Davis over three years approved the release of two.
This dramatic shift in releases under Brown comes as the state grapples with court orders to ease a decades-long prison crowding crisis that has seen triple bunking, prison gyms turned into dormitories and inmates shipped out of state.
Crime victims and their advocates have said the releases are an injustice to the victims and that the parolees could pose a danger to the public. More than 80 percent of lifers are in prison for murder, while the remaining are mostly rapists and kidnappers. "This is playing Russian roulette with public safety," said Christine Ward, executive director of the Crime Victims Action Alliance. "This is a change of philosophy that can be dangerous."
The governor's office said the overcrowding crisis plays no role in the parole decisions. Rather, the governor's office said, each case is addressed individually and Brown is bound by court orders that require state officials to ease the stringent parole requirements that have dramatically increased the time murderers spend in prison.
Today, an inmate convicted of first-degree murders can expect to serve an average of 27 years -- almost twice what it was two decades ago before California became the fourth state to give governors the politically fraught final decision on lifer paroles. Since then, the number of lifers has grown from 9,000 to 35,000 inmates, representing a quarter of the state prison population.
But two seminal California Supreme Court rulings in 2008 have significantly eased tough parole restrictions. The court ordered prison officials to consider more than the severity of the applicant's underlying crimes. It ruled that inmates' records while incarcerated plus their volunteer work should count heavily in assessing early release.
State figures show that since the rulings, the board has granted parole to nearly 3,000 lifers, including 590 last year and a record 670 in 2012. In the three decades prior to the 2008 rulings, only about 1,800 such prisoners were granted parole.
Davis allowed only two inmates released out of 232 board decisions granting parole between 1999 and 2002. Schwarzenegger sustained the board at a 27 percent clip during his seven years in office when he was presented with 2,050 paroles granted by the board. Brown has allowed 82 percent of the 1,590 paroles granted by the board.
Brown's office says he is operating under a different legal landscape than previous governors, and that he is following court rulings and a 23-year-old state law that gave governors the power to block paroles of lifers who the state board found suitable for release....
Gov. Pete Wilson, the first governor vested with veto power, used it sparingly, though the parole board was approving just a few dozen paroles a year compared with the hundreds the board has been approving in recent years. Between 1991 and when he left office in January 1999, he approved 115 of the 171, or 67 percent, of the lifers the board found suitable for release....
The few studies of recidivism among released lifers including a Stanford University report show they re-offend at much lower rates than other inmates released on parole and none has been convicted of a new murder. Of the 860 murderers paroled between 1990 and 2010 that Stanford tracked, only five inmates committed new crimes and none were convicted of murder. The average released lifer is in his mid-50s. Experts say older ex-cons are less prone to commit new crimes than younger ones.
Brown has reversed the parole board. On Friday, his office announced it blocked the parole of 100 inmates deemed fit by the board for release and sent two others back to the board for reconsideration. One of those inmates found fit for release by the board but blocked by Brown was James Mackey, a former University of Pacific football player found guilty of shooting his victim with a crossbow and then strangling him. Brown said Mackey hasn't sufficiently owned up to the crime. "Until he can give a better explanation for his actions," Brown wrote, "I do not think he is ready to be released."
Ernest Morgan on the other hand, is a lifer Brown did let free. Morgan, a San Francisco man convicted of the shotgun slaying of his 14-year-old stepsister burglarizing the family home, was turned down for parole five times before the board granted him parole, only to be overruled by Schwarzenegger.... "So I was devastated when Schwarzenegger denied my release," said Morgan, who now is majoring in business management at San Francisco State. "I felt I was a political pawn who would never get out."
In 2011, Brown approved his release after 24 years in prison. Brown made no comment in granting Morgan his release. Instead, the governor signaled his approval by taking no action within 30 days of the parole board's decision becoming official. "It's been a remarkable and unexpected change," said Johanna Hoffman, Morgan's lawyer who has represented hundreds of lifers vying for parole since becoming a California lawyer in 2008. "The overcrowding issue has a huge amount to do with it."
Notable emphasis on CJ reform in AG Holder speech to National Association of Attorneys' General
In Washington DC this morning, Attorney General Eric Holder delivered these remarks at the National Association of Attorneys General Winter Meeting. Here are sections that should be of distinct interest to sentencing fans:
In recent years, no fewer than 17 states — supported by the Department’s Justice Reinvestment Initiative, and led by state officials from both parties — have directed significant funding away from prison construction and toward evidence-based programs and services, like supervision and drug treatment, that are proven to reduce recidivism while improving public safety. Rather than increasing costs, a new report — funded by the Bureau of Justice Assistance — projects that these 17 states will save $4.6 billion over a 10-year period. And although the full impact of our justice reinvestment policies remains to be seen, it’s clear that these efforts are bearing fruit — and showing significant promise across the country.
From Georgia, North Carolina, Texas, and Ohio — to Kentucky, Arkansas, Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources. And I believe that the changes that have led to these remarkable results should be carefully studied — and emulated.
That’s why, last August — in a speech before the American Bar Association in San Francisco — I announced a new “Smart on Crime” initiative that’s allowing the Justice Department to expand on the innovations that so many states have led; to become both smarter and more efficient when battling crime, and the conditions and choices that breed it; and to develop and implement commonsense reforms to the federal criminal justice system.
Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal, drug-related crimes will now be reserved for the most serious criminals. We’re taking steps to advance proven reentry policies and diversion programs that can serve as alternatives to incarceration in some cases. And as we look toward the future of this work, we’ll continue to rely on your leadership — and close engagement — to keep advancing the kinds of data-driven public safety solutions that many of you have championed for decades.
This also means making good on our commitment to provide formerly incarcerated people with fair opportunities to rejoin their communities — and become productive, law-abiding citizens — once their involvement with the criminal justice system is at an end. With the Justice Department’s strong support, the ABA has done important work in this regard, cataloguing tens of thousands of statutes and regulations that impose unwise collateral consequences — related to housing, employment, and voting — that prevent individuals with past convictions from fully reintegrating into society. As you know, in April 2011, I asked state attorneys general to undertake similar reviews in your own jurisdictions, and — wherever possible — to mitigate or eliminate unnecessary collateral consequences without decreasing public safety. I’ve made the same request of high-ranking officials across the federal government. And moving forward, I’ve directed every component of the Justice Department to lead by example on this issue — by considering whether any proposed rule, regulation, or guidance may present unnecessary barriers to successful reentry.
Two weeks ago, at Georgetown University Law Center, I called upon state leaders and other elected officials to take these efforts even further — by passing clear and consistent reforms to restore voting rights to those who have served their terms in prison or jail, completed their parole or probation, and paid their fines. I renew this call today — because, like so many other collateral consequences, we’ve seen that the permanent disenfranchisement of those who have paid their debts to society serves no legitimate public safety purpose. It is purely punitive in nature. It is counterproductive to our efforts to improve reentry and reduce recidivism. And it’s well past time that we affirm — as a nation — that the free exercise of our citizens’ most fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.
I applaud those — like Senator Rand Paul, of Kentucky — who have already shown leadership in helping to address this issue. And I encourage each of you to consider and take up this fight in your home states.
Curious racial politics omission in otherwise astute analysis of Prez Obama's criminal justice reform record
New York Times big-wig Bill Keller has this interesting final column headlined "Crime and Punishment and Obama," which discusses his transition to a notable new job in the context of a review of Prez Obama's criminal justice record. Here are excerpts of a piece which should be read in full and which, as my post title suggests, does not discuss racial politics as much as I would expect:
[W]hen the former community organizer took office, advocates of reform had high expectations.
In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system. It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far....
In his first term Obama did not make this a signature issue; he rarely mentioned the subject....
In practice, the administration’s record has been more incremental than its rhetoric.
By the crudest metric, the population of our prisons, the Obama administration has been unimpressive. The famously shocking numbers of Americans behind bars (the U.S., with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row. However the overall downsizing is largely thanks to California and a handful of other states. In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.
Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it. And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered. That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.
The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.
“This is something that matters to the president,” Holder assured me last week. “This is, I think, going to be seen as a defining legacy for this administration.” I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking
This column covers a lot of modern criminal justice ground quite well, and gets me even more excited for Keller's forthcoming new journalistic venture called The Marshall Project. But I find curious and notable that this commentary does not directly address the racialized political dynamics that necessarily surrounds the first African-American Prez and AG if and whenever they prioritize criminal justice reform.
I have heard that Thurgood Marshall, when doing advocacy work with the NAACP before he became a judge, was disinclined to focus on criminal justice reform because he realized the politics of race made it hard enough for him to garner support for even law-abiding people of color. Consequently, while important federal elections in which Prez Obama is the key player still loom, I suspect the Prez and his team have made a very calculated decision to only move very slowly (and behind folks like Senator Rand Paul) on these matters.
And yet, just as Thurgood Marshall could and did make criminal justice reform a priority when he became a judge and Justice insulated from political pressure, so too am I expecting that Prez Obama will prioritize criminal justice issues once he in the last two lame-duck years of his time in the Oval Office. Two years is ample time for the Prez to make federal criminal justice reform a "defining legacy for this administration," and there is good reason to think political and social conditions for bold reform work will be in place come 2015 and 2016 (even with the inevitably racialized realities surrounding these issues).
February 25, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
With intriguing coalitions, SCOTUS limits right to challenge pre-conviction asset seizure
The Supreme Court handed down an opinion this morning in Kaley v. US, No. 12-464 (S. Ct. Feb 25, 2014) (available here), which is notable for its holding and the groups of Justices joining together. Here is the start of the opinion for the Court, which was authored by Justice Kagan and joined by Justices Scalia, Kennedy, Thomas, Ginsburg and Alito:
A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.
In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure's legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged. We hold they have no right to relitigate that finding.
Here is the start of the lengthy dissent in Kaley which was authored by Chief Justice Roberts and joined by Justices Breyer and Sotomayor:
An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.
We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense — the attorney he selects and trusts — by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent.
The Court also handed another criminal defendant another 6-3 loss today in a Fourth Amendment case from California. Here is how the majority opinion, per Justice Alito, gets started in Fernandez v. California, No. 12-7822 (S. Ct. Feb. 25, 2014) (available here):
Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants1 consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.
Monday, February 24, 2014
Via summary reversal, SCOTUS decides Alabama courts wrongfully rejected Sixth Amendment claim of death row defendant
Though not yet garnering much attention, I think SCOTUS-watchers and especially capital punishment followers should take not of a summary reversal by the Supreme Court this morning in Hinton v. Alabama, No. 13-644 (S. Ct. Feb 24, 2014) (available here). Here is how the opinion starts and a key section from the meat of the ruling:
In Strickland v. Washington, 466 U. S. 668 (1984), we held that a criminal defendant’s Sixth Amendment right to counsel is violated if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission. Id., at 687–688, 694. Anthony Ray Hinton, an inmate on Alabama’s death row, asks us to decide whether the Alabama courts correctly applied Strickland to his case. We conclude that they did not and hold that Hinton’s trial attorney rendered constitutionally deficient performance. We vacate the lower court’s judgment and remand the case for reconsideration of whether the attorney’s deficient performance was prejudicial....
“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, supra, at 688. Under that standard, it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000....
The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance..... Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.” An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland....
We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690. We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law — the unreasonable failure to understand the resources that state law made available to him — that caused counsel to employ an expert that he himself deemed inadequate.
Though I am disinclined to make too big a deal out of this (little?) summary reversal, I am quite intrigued by the Court's ready conclusion (without any dissent) that inadequate research into what state law provided as available defense resources in this case made out deficient performance here. And though the Court says it does not want to now see "federal courts [launching] into examination of the relative qualifications of experts hired and experts that might have been hired," I suspect every capital habeas attorney worth his salt will be now eager to stress Hinton v. Alabama while encouraging just such an examination as part of any Sixth Amendment ineffective assistance claim.
Sunday, February 23, 2014
"Shadow Sentencing: The Imposition of Supervised Release"
The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:
More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release. Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant. Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections. The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.
Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system. In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.
Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release. It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence. This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.
February 23, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
Is arrest of Mexican drug lord "a monumental moment in the world's war on drugs"?
The question in the title of this post is drawn from the first sentence of this CNN report headlined "3 reasons why 'El Chapo' arrest matters." Here are excerpts:
The arrest of drug kingpin Joaquin "El Chapo" Guzman is a monumental moment in the world's war on drugs.... Here are three reasons why the arrest of Guzman — now being held by Mexican authorities and sought for extradition by U.S. authorities — matters so much.
1. His legend
Chicago declared him and his use of the city as a drug-dealing hub as Public Enemy No. 1, joining bygone gangster Al Capone in that distinction. Perhaps most importantly, El Chapo is synonymous with narco culture and its lurid glorification. Guzman, 56, is the drug kingpin extraordinaire.
El Chapo, which means "Shorty" in Spanish, inspires American rap songs and a genre of Mexican ballads called narcocorridos. "All I wanna be is El Chapo, Three billion dollars in pesos" is part of the chorus to a 2012 rap by Gucci Mane.
Maybe the most potent message of El Chapo's arrest is how it undermines his most audacious myth -- that he could never be caught again, unfindable in Mexico's back country. Guzman had been caught once before by Mexican authorities, in 2001, but he escaped from a high-security Mexican prison. Lore holds that he slipped out of the prison by hiding in a laundry basket....
2. One of the world's most wanted
Guzman's drug operation is believed to have penetrated not just all of the Americas, but Europe, Australia and west Africa as well, according to the West Point report. "The United States remains the most important demand market for Sinaloa Federation products —marijuana, cocaine, and methamphetamines. The European Union and Australia, however, have proven attractive due to the economics of price elasticity and their distance from the supply source," according to the report.
But authorities have been mounting pressure on Guzman's Sinaloa cartel in recent months. His lieutenants have been killed or captured by Mexican authorities. Earlier police operations yielded a trove of intelligence, including cell phone and other data, a U.S. law enforcement official said. That helped Mexican authorities and U.S. Drug Enforcement Administration agents hunting Guzman gain confidence in recent weeks that they could arrest him.
"Although it's a ridiculous phrase, the world's most wanted drug lord is accurate," said Malcom Beith, author of "The Last Narco," which is about Mexico's drug war. "There's tons of other drug lords around, but I think the Sinaloa cartel, given its growth, given its influence hemispheric and otherwise, I think that puts him on the top."
Phil Jordan, who spent three decades with the DEA and headed the agency's El Paso Intelligence Center, also characterized Guzman in superlatives. "When you arrest the most powerful man in the Americas and in Mexico, if you talk to any cartel member, they'll say that he's more powerful than Mexican President Pena Nieto," Jordan said. "This would be a significant blow to the overall operations not only in the Americas, but Chapo Guzman had expanded to Europe. He was all over the place."...
3. U.S. indictments
Guzman's arrest has re-energized Mexican and U.S. lawmen who spent years tracking his cartel and yet unable to capture him — until now. The United States doesn't want to see Guzman escape again. That's why they are eager to see him extradited to the United States as soon as possible, where he is named in multiple federal drug indictments and has been on the DEA's most-wanted list.
"It is a significant arrest, provided he gets extradited immediately to the United States," Jordan told CNN. "If he does not get extradited, then he will be allowed to escape within a period of time." Added one U.S. official: "Now comes the hard part." That official was referring to Guzman's extradition to the United States.
This CNN story helps me better understand why the arrest of drug kingpin Joaquin "El Chapo" Guzman is a very big news story and a significant law enforcement achievement. But I doubt many folks look back at the arrest(s) and prosecution(s) of Al Capone as a monumental moment in alcohol Prohibition, and I likewise would be surprised if this recent take-down of El Chapo is deemed monumental in the years to come as a variety of drug lords battle to take over his domain and become the next "world's most wanted drug lord."
I ask the question in the title of this post not to diminish the importance of this recent arrest nor to belittle to considerable efforts of the considerable and important law enforcement effort to capture this very bad guy. But, like the war on crime or the war on poverty or even the war on terror, I worry that there is never a single "general" (on either side of these wars) whose arrest or death is very likely to significantly alter the enduring battles that seem destined to continue on.
NACDL brings FOIA lawsuit against DOJ for access to criminal discovery guide
The alphabet suit title for this post concerning this story reported here by Legal Times under the headline "Criminal Defense Group Sues DOJ Over 'Discovery Blue Book'." Here are the details:
The National Association of Criminal Defense Lawyers [Friday] sued the U.S. Department of Justice over public access to a criminal discovery "blue book" that was written after the collapse of the case against Ted Stevens.
The Justice Department last year turned down a request from the NACDL for a copy of the Federal Criminal Discovery Blue Book. The lawsuit was filed ... in U.S. District Court for the District of Columbia.
Justice Department officials, according to the complaint, cited the book as an example of why federal legislation was unnecessary to prevent future discovery abuses among prosecutors. During a hearing on Capitol Hill, in 2012, the Justice Department said the blue book was "distributed to prosecutors nationwide in 2011" and "is now electronically available on the desktop of every federal prosecutor and paralegal," according to the NACDL complaint.
"The due process rights of the American people, and how powerful federal prosecutors have been instructed as relates to the safeguarding of those rights, is a matter of utmost Constitutional concern to the public," NACDL President Jerry Cox said in a written statement. "The 'trust us' approach is simply unacceptable. And it is certainly an insufficient basis upon which to resist bipartisan congressional interest in codifying prosecutors’ duty to disclose."
Saturday, February 22, 2014
"The State’s Victim: Should the State Grant Rights and Privileges to the Families of Death Row Defendants?"
The title of this post is the title of this notable student note by Michelle Tomes now available via SSRN. Here is the abstract:
This Article argues that the friends and family of the person condemned to death are victims of the state, which chooses to charge the defendant with a capital crime. Due to the trauma, stress, and the need of support services, the state should define the families of the defendants as victims. Additionally, Part I of this article outlines the victim’s rights movement and the problems that come from society not considering the families of defendants as victims. Part II of this article defines why the state should consider the family of the defendants as victims.
Part III of this Article will argue that the state should allow contact visits with the inmate as a recognized right to the defendant and the defendant’s family. Additionally, Part III will argue that the new category of victims deserve equal access to support as the victims of crime, and will supply evidence that supports the introduction of execution impact evidence on behalf of the defendant.
Friday, February 21, 2014
Notable New Yorker piece reporting on forthcoming federal judicial sentencing patterns
A helpful reader altered me to this notable new piece about sentencing policies and practices from The New Yorker authored by Columbia Law Prof Tim Wu. The full piece ends by stressing one concern I often express about the challenge of using mandatory sentencing laws to try to deal with concerns about judicial sentencing disparity — namely "that they tend to increase the power that prosecutors have over sentencing, and prosecutors, if anything, vary even more than judges." But the piece caught my attention late on a Friday afternoon mostly because of this discussion of some notable forthcoming research on modern federal sentencing patterns:
Sentencing decisions change lives forever, and, for that reason and others, they’re hard to make. It is often suspected that different judges sentence differently, and we now have a better idea of this. A giant, forthcoming study of the federal judiciary reveals clear patterns: Democrats and women are slightly more lenient. Where you’re sentenced matters even more. Judges in the South are harsher; in the Northeast and on the West Coast, they are more easygoing.
The study’s author is Crystal Yang, a fellow at the University of Chicago Law School, who based it on data from more than six hundred thousand convicted defendants between 2000 and 2009. (Impressively, in certain ways her study exceeds the work of the United States Sentencing Commission.) She writes, “Female judges sentenced observably similar defendants to approximately 1.7 months less than their male colleagues.” In addition, judges appointed by a Democratic President were 2.2 per cent more likely to exercise leniency. Regional effects are more challenging to measure, because, for example, the kinds of crime that happen in New York might differ from those in Texas. But recent data suggest that, controlling for cases and defendant types, “there is substantial variation in the sentence that a defendant would receive depending on the district court in which he is sentenced” — as much as eleven months, on average. The results are all statistically significant, according to Yang — and, if the differences sound relatively small, it is also important to remember that what she is measuring are average differences. In straightforward cases, judges may be more likely to issue similar rulings. It’s the hard cases where judges vary. In a case on the edge, the identity of your judge might make an important difference.
Of course, all sophisticated federal sentencing practitioners know that in all cases, not just those "on the edge," the "identity of your judge might make an important difference." And I regularly tell law students that every federal defendant ought to realize from the moment he or she is subject to a federal investigation, in all cases, not just those "on the edge," the identity of the prosecutor and probation officer and defense attorney also "might make an important difference." Consequently, I am not sure Crystal Yang's "giant, forthcoming study of the federal judiciary" is likely to tell us a lot that we do not already suspect or know.
That all said, I am already jazzed to hear a lot more about what Crystal Yang has collected and analyzed concerning the federal sentencing of "more than six hundred thousand convicted defendants between 2000 and 2009"! That is a whole lot of data, and it spans a remarkable decade in federal sentencing developments which included the passage of the PROTECT Act and the transformation of federal sentencing law and practices wrought by Blakely and Booker and its progeny.
UPDATE: After doing a little research, I think I discovered that an updated version of Crystal Yang's research discussed above is now available here at SSRN, and is soon to be published in the New York University Law Review.
SCOTUS permits additional briefing on CP restitution issues in light of Burrage
The Supreme Court issued a notable two-sentence order today in Paroline v. US, the pending case on child porn restitution sentences. Here is the text of the order:
The motion of respondent Amy Unknown for leave to file a supplemental brief after argument is granted. The other parties may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of our decision in Burrage v. United States, 571 U. S. ___ (2014), on this case, on or before Friday, March 7, 2014.
Lyle Denniston over SCOTUSblog has an extended discussion of this intriguing new development, which includes these passages:
The Court, it appears, did not stir up this new issue on its own. The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case. The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.
Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them....
In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.” The letter offered to submit a brief on the point.
In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively. In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.
The supplemental filing accepted by the Supreme Court today from lawyers for “Amy Unknown” is available at this link.
A few (of many) prior posts on Paroline and child porn restitution issues:
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
- Explaining why I am rooting so hard for "Amy" in Paroline
February 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
How might opponents of marijuana reform want Colorado to spend its $100 million in new annual tax revenue?
The question in the title of this post is prompted by the notable tax revenue news emerging from Colorado as reported in this New York Times piece headlined "Colorado Expects to Reap Tax Bonanza From Legal Marijuana Sales." Here are the basics (with some of the existing state spending plans highlighted):
For Colorado’s new flock of recreational marijuana growers and sellers, Thursday was Tax Day — their first deadline to hand over the taxes they had collected during their inaugural month of sales. And as store owners stuffed cash into lockboxes and made the nervous trek to government offices, new budget numbers predicted that those marijuana taxes could add more than $100 million a year to state coffers, far more than earlier estimates.
The figures offered one of the first glimpses into how the bustling market for recreational marijuana was beginning to reshape government bottom lines — an important question as marijuana advocates push to expand legalization beyond Colorado and Washington State into states including Arizona, Alaska and Oregon.
In Colorado, where recreational sales began on Jan. 1 with hourlong waits, a budget proposal from Gov. John W. Hickenlooper estimated that the state’s marijuana industry could reach $1 billion in sales in the next fiscal year, with recreational sales making up about $610 million of that business. “It’s well on its way to being a billion-dollar industry,” said Michael Elliott, executive director of the Marijuana Industry Group, a Colorado trade association. “We went from 110,000 medical marijuana patients to four billion people in the world who are 21 and up.”
In the budget proposal that Mr. Hickenlooper released Wednesday, his office said the state could collect about $134 million in taxes from recreational and medical marijuana for the fiscal year beginning in July. He proposed to spend $99 million on programs including substance-abuse treatment, preventing marijuana use by children and teenagers, public health and law enforcement. “This package represents a strong yet cautious first step toward ensuring a safe and responsible regulatory environment,” Mr. Hickenlooper wrote in the proposal.
In Washington, where retail sales of marijuana are expected to begin in June, budget forecasters estimated Wednesday that marijuana could bring the state nearly $190 million in taxes for the four years beginning in the middle of 2015. That money would go to a variety of health and substance-abuse programs, and the state’s general fund. “Every governor and legislator in the country will be like, ‘Hey, check out these numbers,’ ” said Reuven Carlyle, a Democratic state lawmaker from Seattle who is chairman of the House Finance Committee.
For marijuana advocates, taxes were one of the major selling points of legalization. They have said that expanding the market for the federally prohibited plant could give states money for school construction, health care, substance-abuse programs and public health. Colorado’s legalization measure said $40 million in tax revenue would go toward school construction, and in November, voters across this otherwise tax-averse state overwhelmingly approved 25 percent taxes on recreational marijuana.
But opponents, and some skeptical economists, say the dreams of a windfall are far too optimistic. They worry that the higher costs of enforcement and regulation could outweigh any tax revenue from marijuana sales.
Officials in Colorado and Washington warned that the marijuana revenue numbers were only their best guesses for the moment and could shift, depending on marijuana prices, demand, the number of cities that prohibit marijuana retailers and other factors. In Washington, where retail sales have not begun, Mr. Carlyle said it was far too early to say how marijuana might affect the state’s pocketbook.
As this article suggests, it is likely far too early to assume that Colorado can expect to reap $100 million in extra tax revenues every year in the future. But it is now plainly not too early to start a robust discussion — in which I want marijuana reform opponents to play a leading role — about the best ways for the new state tax revenue from marijuana legalization to be used.
Given the limited evidence of success for youth drug education programs like DARE, I am not sure it is wise to invest too much of the new state money on programming to prevent marijuana use by children and teenagers. But I do think spending more money on law enforcement and public health and substance-abuse programs is a great idea, and I would expect that some very significant public safety (and other) benefits ought to be achievable with $100 million in extra tax revenues to spend on such programming.
I suspect fierce opponents of marijuana reform have a much different perspective than I have about the needs of a state like Colorado and its local communities as it move forward with its experiments in ending pot prohibition. Ergo, I am genuinely hopeful that readers deeply concerned with what is unfolding in Colorado and Washington and other states will express their views on how communities ought to be using its new tax revenues.
Is an executed murderer now haunting Missouri's efforts to carry out death sentences?
The somewhat tongue-in-cheek question in the title of this post is prompted by this notable new commentary by Andrew Cohen at The Atlantic. Here is the headline and subheadline of the article: "The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans; It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since." And here is how the lengthy piece gets started:
It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.
Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.
Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.
Thursday, February 20, 2014
Are we "headed for a crime-riddled future" without mandatory minimums?
The question in the title of this post is drawn from a notable quote toward the end of this notable new article from The Economist. The article is headlined "Sentencing reform: Kinder, gentler; Less time inside for less-serious crimes." Here are excerpts:
Last August Eric Holder, America’s attorney-general, issued a memo to federal prosecutors. It directed them not to charge certain low-level, non-violent, non-recidivist drug defendants without ties to cartels with crimes serious enough to trigger mandatory minimum sentences. The direct effects of this policy shift seem small: Paul Hofer, a lawyer who specialises in sentencing matters, found that just over 500 of the roughly 25,000 defendants sentenced under federal drug laws in 2012 might have got a smaller rap if Mr Holder’s policy had been in place then. But it appears to have given sentencing reform a strong shot in the arm.
In early January the United States Sentencing Commission (USSC), the agency that sets sentencing policies for federal courts, published proposed changes to sentencing guidelines, one of which would reduce penalties for some drugs charges....
Congress also seems to be shedding its usual lethargy on the subject. On January 30th the Senate Judiciary Committee sent the Smarter Sentencing Act to the full Senate for a vote. This bill would, first, reduce mandatory minimum sentences for non-violent drug offenders and direct the USSC to lower sentencing guidelines accordingly. Second, it would make the Fair Sentencing Act of 2010 retroactive, so that anyone imprisoned under the old law could apply to have his sentence reduced....
Not everyone is happy with these changes. The National Association of Assistant United States Attorneys (NAAUSA), which represents a minority of federal prosecutors, urged senators not to “weaken the benefits of mandatory minimum sentencing” — ie, the fact that harsh sentences terrify defendants into co-operating with prosecutors. One member of the NAAUSA frets that without mandatory minimums, “we are headed for a crime-riddled future.”
Yet reform continues. Barack Obama has yet to commute many long federal sentences, but the Justice Department wants to find more candidates for presidential clemency. On February 11th Mr Holder urged states to repeal laws that bar ex-convicts from voting. Anecdotal evidence from federal courts in Tennessee, Vermont and Virginia shows that some judges are already shifting position because they expect the Smarter Sentencing Act to pass. Advocates for ever-harsher sentences appear to be losing the whip hand.
"The Unbearable Lightness of Criminal Procedure"
The title of this post is the title of this interesting paper by Ion Meyn available via SSRN. Here is the abstract:
What is revealed about criminal procedure if we compare it to civil procedure? Prevailing scholarship compares American criminal procedure to criminal procedure in Europe. One of the most influential of these transatlantic comparisons is Gerard Lynch’s Our Administrative System of Criminal Justice. Lynch arrives at the insight that the American criminal model of adjudication is not trial-based, but like the European model, administrative in nature. He further concludes that both models strike an adequate balance between the competing goals of efficiency and accuracy. A comparison of American criminal procedure to its common law counterpart, civil procedure, confirms Lynch’s view that criminal the criminal process is administrative in nature. But the comparison also leads one to question Lynch’s assessment that the American criminal model adequately achieves efficiency and accuracy.
Though historically similar, the criminal and civil pretrial process has evolved into two distinct models of administrative adjudication. This article contends that civil procedure reforms identified due process features otherwise locked in trial and modified them for pretrial use. These features of trial include the opportunity to compel and present facts, the application of the rules of evidence, and active judicial intervention to ensure fair play. Though civil litigants do not typically proceed to trial, these reforms permit litigants to compel testimony and demand that legal claims have factual integrity. But where reforms to civil procedure have imported due process into the pretrial process, criminal procedure has remained resistant to such innovation. Instead, during the criminal pretrial period, parties have unequal access to facts. Few rules ensure factual integrity. And the court has little opportunity to review the pretrial record. As a result, separate and unequal procedural models govern the pretrial resolution of disputes within our courtrooms.
A shameful suggestion for how to NYC roads and walkways safer
I was asked yesterday to contribute my thoughts to the Room for Debate section of the New York Times to address the question of "what steps can [New York City] officials, pedestrians and drivers take to reduce the number of accidents?". My suggestion in available at this link, and here is a segment:
Perhaps Mayor de Blasio might try to impose salient shaming sanctions rather than other traditional punishments.
What if, after a reckless driver has caused a crash in Midtown, the offender were required to create a video reciting recent accident data, which would be posted on YouTube and regularly shown on screens in Times Square? What if, after a cyclist is caught dangerously weaving through traffic in Brooklyn, that scofflaw had to make a live apology during halftime of a Nets game? What if all drivers convicted of speeding were required to place bumper stickers on their cars highlighting that the owner does not follow traffic rules? ...
Because we have rarely tried to make traffic offenders “pay” for their crimes through prominent use of shaming, I cannot confidently predict it would be more effective. But given the challenges in trying to capture the attention and obedience of busy New York City drivers, it is worthwhile to consider creative alternative punishment schemes.
"Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment
The title of this post is the title of this notable new paper by Mona Lynch now available via SSRN. Here is the abstract:
The empirical study of capital punishment in the “modern” era has been largely decoupled from scholarship addressing the corollary late-20th century noncapital punitive developments, such as the rise of mass incarceration. Consequently, research that has examined the problem of racial disparities in the administration of the death penalty and research on the proportional growth of minorities in American correctional populations have advanced on parallel tracks, rarely intersecting.
In light of this symposium’s effort to strengthen the linkages between the death penalty and mass incarceration, this article examines two seemingly distinct cases of racially disparate criminal justice practices — the trial courts’ processing of contemporary capital cases and federal drug trafficking cases — to illustrate the institutionalized mechanisms that produce racial inequalities in both mass incarceration and capital punishment. I advance a meso-level, social-psychological theory on the production of institutional racism that also aims to integrate contested lines of thought about the mechanisms of bias and discrimination.
To accomplish these ends, I specifically focus on three problem areas in the structure and operation of contemporary American criminal justice: 1) the codification of inequality in how crimes and criminal culpability are defined and how sentencing rules are structured; 2) the distribution, by both stage and actor, of discretionary decision-making power; and 3) the mechanisms for relief from the harshest potential punishments.
Wednesday, February 19, 2014
Curious DOJ clemency campaign continues through meeting with defense groups
This notable NPR story, headlined "Justice Dept. Asks For Help Finding Prisoners Who Deserve Clemency," reports on the latest development concerning the curious (though encouraging) new DOJ push for clemency candidates. Here are the details:
The second-in-command at the Justice Department met Tuesday with defense lawyers and interest groups to identify the cases of worthy prisoners who could qualify for clemency.
The initiative by Deputy Attorney General James Cole follows a speech he gave last month suggesting the White House intends to make more use of the president's power to shorten prison sentences for inmates who have clean records, no significant ties to gangs or violence, and who are serving decades behind bars for relatively low-level offenses.
Cole wants to enlist lawyers to help solicit and prepare clemency requests. It's part of a broader effort to stop spending so much money incarcerating people that it squeezes the public safety budget. A Justice Department spokesman says Cole "wants to ensure that individuals like the eight whose sentences the president commuted in December have access to attorneys to help them present their cases."
Longtime followers of the pardon power have criticized President Obama's relatively stingy approach over five years in office. They also suggest that backlogs in the Justice Department's Office of Pardon Attorney might get worse if the call for more prisoner petitions takes hold. But the Justice spokesman says Cole has made this effort a top priority and that he's instructed the pardon attorney to do the same, taking some steps to handle any influx of clemency requests in the months ahead.
Representatives from the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the Federal public defender program and Families Against Mandatory Minimums had been scheduled to attend the meeting at Justice Department headquarters. Mary Price of FAMM, one of the attendees, says she came away feeling "really encouraged."
"We look forward to working together with them and others to help identify potential commutation cases and ensure prisoners have trained pro bono counsel to submit focused petitions for the meaningful consideration the Deputy Attorney General has pledged they will receive," Price says.
Some recent and older posts concerning federal clemency practices:
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
- Deputy AG Cole's remarkable remarks to the NYSBA
- "How to Awaken the Pardon Power"
- New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
- "Clemency Reform: We're Still Waiting"
- New York Times editorial assails Prez Obama's considerable clemency failings
- Updated numbers on President Obama's disgraceful clemency record
- ProPublica reveals more ugliness in federal clemency process
- Reflecting on Obama Administration's latest "half-way" approach to clemency
After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage
As reported in this local piece, an "84-year-old Catholic nun will spend nearly three years in federal prison for breaking into one of the U.S. government's most secure facilities and helping deface a uranium-processing building with human blood, a federal judge ruled Tuesday." Here is more about the fascinating sentencing conclusion to a high-profile case of law-breaking civil disobedience:
Megan Rice, who turned 84 on Jan. 31, and fellow anti-nuclear activists Michael Walli, 64, and Greg Boertje-Obed, 58, were convicted in May of sabotaging the plant in Oak Ridge, Tenn. All three are members of the Plowshares movement of Christian pacifists.
U.S. District Judge Amul Thapar in Knoxville, Tenn., sentenced Rice to 35 months in prison for her role in the July 28, 2012, break-in and protest. The judge sentenced Walli and Boertje-Obed both to five years and two months in prison. Previously, Thapar had ordered the trio to pay nearly $53,000 in restitution for damaging U.S. government property. In addition, Walli and Boertje-Obed will have three years of supervised release after their prison terms. The two men received longer sentences based on their past criminal history.
During a four-hour hearing Tuesday, Rice pleaded with the judge not to grant her leniency. "Please have no leniency on me," she said. "To remain in prison for the rest of my life would be the greatest honor you could give me."
Thapar didn't oblige but did say that breaking the law isn't the right way to pursue political goals. He said he hoped that a significant prison sentence would deter others from following the same path and bring them "back to the political system I fear that they have given up on."
The protesters picked late July 2012 to break in to the Y-12 National Security Complex because it was close to the dates when the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan, during World War II. The three cut through fences and made it through multiple layers of security. They spent more than two hours in a restricted area and had time to splash blood on the outside of the building where the government processes weapons-grade uranium before security personnel apprehended them....
The three have garnered worldwide attention. Thousands of letters of support have poured into the court from around the world. Those include letters from groups such as the Union for Concerned Scientists. While acknowledging the three were convicted of a federal crime, they exposed serious security weaknesses at Y-12, the group said.
Edwin Lyman, a nuclear security expert at the Union of Concerned Scientists, said in January that the protesters did the nation a public service. "We think, even though they were convicted of a federal crime, there are mitigating circumstances and they made the country safer," Lyman said.
The government has taken the case seriously. The three have been in custody since their conviction, and prosecutors recommended sentences of six to nine years.
A key issue Tuesday was how the judge should follow federal sentencing guidelines. Lawyers for the activists that argued the time they already have served is sufficient punishment.... During the hearing, the judge struggled with how to handle the guidelines. "At some point, the law has to command respect, and there is a lawful way to change it," Thapar said. But he also suggested that Rice's past good works should play a role and wasn't sure how to fit those into the guidelines. He called a recommended sentence of 6½ years for Rice "overkill."
Assistant U.S. Attorney Jeffrey Theodore ... contended the trio's actions were "serious offenses that have caused real harm to the Y-12 National Security Complex." [And] "they have shown no remorse for their criminal conduct," he said.
Recent related posts:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
- Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
February 19, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
"Will There Be a Neurolaw Revolution?"
The question in the title of this post is the title of this new paper by Adam Kolber now available via SSRN. Here is the abstract:
The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility.
There will, however, be a neurolaw revolution of a different sort. It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways, three of which I describe here: First, as new methods of brain imaging improve our ability to measure distress, the law will ease limitations on recoveries for emotional injuries. Second, as neuroimaging gives us better methods of inferring people’s thoughts, we will have more laws to protect thought privacy but less actual thought privacy. Finally, improvements in artificial intelligence will systematically change how law is written and interpreted.