Monday, November 03, 2014

"Narcotics Prosecutors as Problem Solvers"

The title of this post is the title of this intriguing little new piece by Mark Osler now available via SSRN.  Here is the abstract:

When deciding whether and how to pursue narcotics cases, federal prosecutors should focus not on number of convictions or quantity of drugs intercepted, but rather on whether they are solving problems through the cases they choose.  He first examines federal prosecutors' extremely broad discretion in selecting narcotics defendants and charges, as well as some of the negative effects of the failure to employ a "problem solving" rubric in the war on drugs to date.  He then suggests a number of changes that such a rubric would bring to the way narcotics cases are pursued, including a change in the proxy that prosecutors use for defendant culpability from drug quantity to drug profits.

November 3, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"

Download (2)Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang.  His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system.  But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage.  In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.  The outcome is very largely determined by the prosecutor alone....

Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain.  If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources).  Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little.  Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense.  For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).

Prior related posts on Judge Rakoff's commentaries:

November 3, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Sunday, November 02, 2014

Interesting review of the (too cautious?) work of California's Attorney General

Images (1)The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:

Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional.  Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."

That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....

On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.…  [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."

Harris, 49, bristles at the suggestion that she is afraid to take stands.  "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview.  She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....

During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy.  She also has created units to focus on cyber-crime and cyber-privacy.  In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights.  In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed.  He pointed to a study that blamed logjams in the system on various factors.

Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law.  If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court.  If she decided against an appeal, the death penalty in California would probably end.  "We will have to see what the court rules," Harris said, without elaborating on her thinking.

She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division.  Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."

When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris.  "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...

[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"

Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.

She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."

November 2, 2014 in Death Penalty Reforms, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

"Crashing the Misdemeanor System"

The title of this post is the title of this intriguing article by Jenny Roberts recently posted on SSRN. Here is the abstract:

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis.  Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing. 

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court.  This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.”  Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts.  Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively.  As a result, many cases end in a quick guilty plea with little or no jail time.  The “broken windows theory” suggests that everyone benefits from such efficiency.

Yet the effect of misdemeanor convictions is anything but minor.  A quick guilty plea appears advantageous for a disorderly conduct misdemeanor in exchange for the night already served in jail.  But this conviction can, and does, lead to eviction from public housing.  It can, and does, pose a bar to showing “good moral conduct” for citizenship.  And it can, and does, make it difficult to find work in an era when employers routinely run criminal background checks.  The many harsh collateral consequences of even a “minor” misdemeanor conviction create serious barriers to the most basic aspects of life.  Mass misdemeanor processing thus harms the individual, his family, his community, and society.

Refusing to process individuals quickly would impose some of the real costs of mass misdemeanor processing on the justice system itself.  Such a “crash” of the criminal justice system would not be dramatic.  Instead, if defense counsel litigated some of the many factual and legal issues that misdemeanors present, the system would grind to a halt under its own weight.  The representation would be nothing more than Gideon and its progeny require, but would shift the burden for mass misdemeanor processing to the prosecution and the courts from misdemeanor defendants. Under this weight, legislators might reduce the short- and long-term costs of mass misdemeanor policing.  Prosecutors might exercise greater discretion, and police officers might maintain order without needless arrests.

Part I explores the idea of crashing the system as a potential response to the misdemeanor crisis.  Part II describes the potential role for defense counsel in such an institutional response.  Part III outlines specific strategies that specialized defender practice groups might pursue to crash the system.  Part IV explores arguments for and against efforts to crash the existing misdemeanor system.

November 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, November 01, 2014

Notable account of all the advocacy and interests surrounding California's Prop. 47

Today's Los Angeles Times has this lengthy discussion of the advocacy interests surrounding the big criminal justice initiative on the California ballot this election season. The piece is headlined "Prop. 47 puts state at center of a national push for sentencing reform," and here are excerpts:

The statewide initiative on Tuesday's ballot to reduce penalties for illicit drug use and petty theft is part of a multimillion-dollar campaign to revise sentencing laws in California and across the nation.

Five major foundations, headlined by a philanthropic group run by New York billionaire George Soros, have poured millions of dollars to push for changes in California's policies on crime and imprisonment.  The campaign is aimed at shaping public opinion, media coverage, research and grass-roots activism on the issue.

Proposition 47 would reclassify possession of heroin, methamphetamine and other illegal drugs, and theft of $950 or less, as misdemeanors in California. If the measure passes, California will become the first state to "de-felonize" all drug use, opening the door for similar efforts in other states.

"We hope we're setting a precedent for the nation," said Lynne Lyman, state director of the National Drug Policy Alliance, an active supporter of Proposition 47.  "We are hoping it will signal that we don't need to be so tough on crime all the time."  Proponents of the ballot measure have raised $9 million — at least $2 million of which came from two of the foundations — for their campaign thus far.  Opponents have raised just $526,000, state election records show....

Since 2011, the foundations have awarded at least $14 million in grants to almost three dozen California-based groups that are earmarked for "criminal justice reform" or to influence public opinion. Soros' Open Society Foundations in 2012 also gave a $50-million grant to the National Drug Policy Alliance to "advance drug policy reform" in states across the nation.

The coordination by a few wealthy foundations to change public policy represents a legitimate but worrying form of political influence, said Robert McGuire, who tracks such activity for the Center for Responsive Politics.  The foundation grants are not disclosed publicly in the same way campaign contributions are reported.  Foundation nonprofit tax filings often do not become public until two years after money is spent.  "Nonprofits are allowed to do this, but voters have a right to know what interest is trying to get them to vote a certain way," McGuire said.

The California effort was initiated by Tim Silard, who ran alternative sentencing programs for California Atty. Gen. Kamala Harris when she was San Francisco district attorney, and Dan Zingale, who was chief of staff to then-first lady Maria Shriver....  Silard and Zingale said they sought a strategy that could break the grip of "tough on crime" politics in California....

Coalition members say they are driven by a belief that California — and the rest of the nation — locks up too many people for too long and that public safety would be better served by putting resources toward job training, mental health and drug addiction treatment.  An opening to change that trend surfaced in the U.S. Supreme Court's 2011 ruling that conditions in California's overcrowded prisons were unconstitutionally dangerous, upholding a lower-court order to reduce the prison population....

In 2013, Soros provided money to create a new organization called Vote Safe to launch Proposition 47.  Soros, a hedge fund manager widely known for bankrolling progressive campaigns and a decade-long battle against the war on drugs, has a representative on Vote Safe's three-member advisory board.  The campaign manager for both Citizens for Safety and Justice and Vote Safe is Lenore Anderson, another former aide to Kamala Harris who once ran the public safety offices in San Francisco and Oakland. Anderson said the ballot initiative was encouraged by polls that showed a softening in public attitudes toward criminal punishment.  "The whole country right now is going through transformation in attitudes on criminal justice," she said. "We felt it was a big moment."

Violent crime in California had dropped precipitously, hitting a 45-year low in 2011. In the fall of 2012, California voters passed another Soros-backed initiative to lift three-strikes penalties for nonviolent felons....

Supporters of Proposition 47 also emphasize that drug laws have a disparate impact on Latino and African American communities. Lyman of the Drug Policy Alliance hammered on that point during a Proposition 47 rally at a Los Angeles church a week ago. "The war on drugs and mass incarceration is just an extension of slavery," she said.

Prior related posts on California's Prop 47:

November 1, 2014 in Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, October 31, 2014

New reduced federal drug sentencing guidelines about to become official

Hard core federal sentencing nerds know that November 1 is a special day because it is the official date on which any proposed changes to the sentencing guidelines proposed by the US Sentencing Commission become official in the absence of congressional rejection thereof.  Tomorrow, November 1, 2014, is especially notable because it will make official the most significant and consequential reduction in guideline sentencing ranges in history.  This USSC press release, which includes a statement from the chair of the USSC, provides background context for why this is such a big deal: 

[Background:] The United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines, voted unanimously in April to reduce sentencing guidelines levels for most drug trafficking offenses and voted unanimously again in July to make that change retroactive.  Because Congress has not acted to disapprove the Commission’s actions, the amendment becomes effective tomorrow.  Offenders sentenced after tomorrow will be sentenced under the new, reduced guidelines, and current prisoners may begin petitioning courts for sentence reductions based on retroactive application of the reduced guidelines. Prisoners can have their sentences reduced if courts determine that they are eligible and a reduction is appropriate, and they may not be released pursuant to such reductions before November 1, 2015.

[Comment by USSC Chair Patti Saris:] “The reduction in drug guidelines that becomes effective tomorrow represents a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety.  Commissioners worked together to develop an approach that advances the causes of fairness, justice, fiscal responsibility, and public safety, and I am very pleased that we were able to agree unanimously on this reasonable solution.  I am also gratified that Congress permitted this important reform to go forward.

This amendment is an important start toward addressing the problem of over-incarceration at the federal level. Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment.  Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties.  I hope that Congress will act promptly to pass comprehensive sentencing reform legislation.”

October 31, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Shrinking Prisons: Good Crime-Fighting and Good Government"

the title of this post is the headline of this thoughtful new piece from The Atlantic. Here are excerpts:

Liberals have long advocated prison reforms like reduced sentence lengths and alternatives to incarceration. Recently, however, conservatives have put these ideas on the congressional agenda — and their inspiration comes from that bastion of tough-on-crime conservatism, Texas.

Surprising? Perhaps. But seeing this coming didn’t require any sort of crystal ball. One had only to notice the forces driving every trend today: less money, higher expectations, and lower “weight.” Around the world and especially in the United States, both the public and private sectors have been under pressure since the Great Recession to cut costs and make the most of constrained resources. At the same time, consumers have become accustomed to expect better and better performance for their dollars. Many people have dismissed as “immature” or unrealistic the electorate’s expectation that governments provide both lower taxes and more services, but it’s not unreasonable given what the private sector has been able to deliver over the last generation.....

It’s overdue, then, for the public sector to revisit the costliest, least productive, and least “weightless” business lines in its portfolios—human services generally, and the corrections system in particular. What smacks more of outdated big government than large, costly, coercive institutions?

Incarceration as we know it today was originally a “progressive” idea. Compared to the days when every offense was punishable by execution — or at least corporal punishment — and prisons were simply a slow form of death, the modern penitentiary was conceived as a humane instrument of rehabilitation, not just punishment: The idea was that sitting alone in a cell and contemplating one’s transgressions — like a penitent — would lead to self-improvement. A close cousin, historically and conceptually, of the poorhouse and insane asylum, the penitentiary proved as much a misnomer, however, as today’s “corrections.” Nonetheless, along with the notion of redemption through hard work, the concept appealed to Jacksonian reformers and launched the first great era of prison construction in America. The second wave peaked, similarly, with the advent of the Progressive Era, which refined the concept with such additions as parole, probation, and indeterminate sentencing.

The third and latest wave of prison enthusiasm, however, was a reaction—against both liberal modifications to incarceration regimes and the social tumult of the ’60s. The War on Drugs increased the numbers of prisoners and lengthened the duration of sentences. The surge in incarceration also has been directly related to race: African-American males are jailed at about six times the rate of whites and three times the rate of Hispanics.

As a result, the United States today has the highest documented incarceration rate in the world: 743 adults per 100,000 population, or nearly 2.3 million adults, nearly one-quarter of the world’s total prison population. More than twice that number are on probation or parole, with more than 70,000 juveniles in detention, as well — roughly one in every 30 Americans is under supervision of some sort, a seven-fold increase since 1980....

Institutionalized correction, while more expensive, is less effective in reducing most crime than virtually any alternative. A 2001 report by New Jersey’s State Commission on Criminal Resentencing found that alternative sanctions and prisons have very similar effects on recidivism, while alternative sanctions free up prison bed space for more violent offenders. Similarly, a 2002 Justice Policy Institute report on Community Corrections programs in Ohio found shorter stays and lower recidivism or re-incarceration rates for clients from community-based correctional programs than for prison inmates.

As a result, many states — mostly Southern — are changing their approach, and saving money. Oklahoma, which was recently in the spotlight for its hard line on executions, has reduced its prison population by nearly 1,800 prisoners, projected to save the state approximately $120 million over the next 10 years. Georgia has become a leader in the use of “drug courts,” which divert offenders into alternatives to prison.

The Urban Institute reports that eight states — Arkansas, Hawaii, Louisiana, Kentucky, New Hampshire, North Carolina, Ohio, and South Carolina — have reliable enough data to provide preliminary findings on the effects of system reforms. These show early successes in slowing and even reducing prison-population-growth rates.

But the poster child is Texas. In 2007, conservative legislators in Austin were staggered by projections for how much it would cost to run the Department of Criminal Justice if the system went unchanged. The state faced the prospect of building approximately 17,000 new prison beds within five years at a cost of nearly $1.15 billion.  Instead, the legislature budgeted approximately $250 million for community-treatment programs and increased the number of inmates served by in-prison treatment and rehabilitation programs.  In 2009, the state added reentry-program coordinators to help reduce the number of released inmates who return to prison.  Texas’s effort now forms the basis for the bipartisan prison-reform legislation moving through Congress.

This has implications beyond prison reform. Governments today face increasing pressure to cut costs, but their citizens still want and need government services. Elected officials everywhere must figure out how to square this circle—to deliver better service at lower cost.  A major part of the answer will lie in moving from costly, outdated “solutions” based on large one-size-fits-all institutions to individualized, dispersed, home- and community-based solutions that use new technologies and evidence-based strategies....

The corrections field shows most starkly that the conservative critique of liberal programs — large, outdated, costly, and one-sized-fits-all — is valid, but also that the solutions liberals have been advocating for the past several decades, with the benefits of years of experimentation and evidence, provide a path forward.

October 31, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, October 30, 2014

New York Times editorial makes the case for California's Prop 47

Today's New York Times has this editorial headlined "California Leads on Justice Reform: Prop 47 Could Take the State a Step Further in Reducing Overcrowding." Here are excerpts:

For a long time, the conventional political wisdom was that no one ever lost an election for being too tough on crime.  That wisdom has been turned on its head in recent years, as both politicians and the public are realizing how much damage the lock-’em-up mind-set has caused....

A familiar retort is that crime is down precisely because the prisons are full, but that’s simply not true.  Multiple studies show that crime has gone down faster in states that have reduced their prison populations.

An encouraging example comes from California, the site of some the worst excesses of the mass incarceration era, but also some of the more innovative responses to it.  For five years, the state has been under federal court order to reduce extreme overcrowding in its prisons.  In response, voters in 2012 overwhelmingly approved a ballot measure to scale back the state’s notorious “three-strikes” law, leading to the release, so far, of more than 1,900 prisoners who had been serving life in prison — in some cases, for petty theft.

Dire warnings that crime would go up as a result were unfounded.  Over two years, the recidivism rate of former three-strikes inmates is 3.4 percent, or less than one-tenth of the state’s average.  That’s, in large part, because of a strong network of re-entry services.

The 2012 measure has provided the model for an even bigger proposed release of prisoners that California voters will consider on the ballot next week.  Under Proposition 47, many low-level drug and property offenses — like shoplifting, writing bad checks or simple drug possession — would be converted from felonies to misdemeanors.

That would cut an average of about a year off the sentences of up to 10,000 inmates, potentially saving the state hundreds of millions of dollars annually.  To keep people from returning to prison, or from going in the first place, the savings would be invested in anti-truancy efforts and other programs like mental health and drug-abuse treatment. Some would go to victims’ services, a perennially underfinanced part of the justice system.

Law-enforcement officials, not surprisingly, oppose the measure, warning that crime will go up.  But they’ve already been proved wrong on three-strikes reform.  Californians — who support the proposition by a healthy margin, according to polls — have now seen for themselves that they don’t have to choose between reducing prison populations and protecting public safety.

It is very rare for lawmakers anywhere to approve legislation to shorten sentences for people already in prison; it is virtually unheard-of to do it by ballot measure. California’s continuing experiment on sentencing can be a valuable lesson to states around the country looking for smart and safe ways to unravel America’s four-decade incarceration binge.

Prior related posts on California's Prop 47:

October 30, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

"Physicians, Medical Ethics, and Execution by Lethal Injection"

The title of this post is the title of this new article by I. Glenn Cohen, Robert Truog, and Mark Rockoff available via SSRN. Here is the abstract:

In the wake of the recent botched execution by lethal injection in Oklahoma, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project issued a set of recommendations for sweeping legal and administrative reforms of this method of capital punishment.  This Article discusses the Committee’s recommendation that medical personnel perform the medically-related elements of lethal injection executions.  Noting that such involvement is prohibited by the codes of medical ethics of professional societies in every medical profession, this Article argues that significant ethical concerns dictate that medical professionals should refuse to participate in lethal injection executions.

Related post: 

October 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, October 29, 2014

Federal judge (improperly?) delays imposing max sentence on fraudster to allow time to consider withdrawal of plea

This Newsday article provide an account of a seemingly unusual development as a federal district judge was about to throw the book at a high-profile white-collar defendant.  Here are the details:

Onetime New York Islanders part owner Stephen Walsh was hit with the maximum sentence of 20 years for a $50 million fraud on Wednesday, but the judge postponed imposing it to let stunned defense lawyers consider an appeal or voiding his guilty plea.

Walsh, 70, of Sands Point, an Islanders executive and co-owner from 1991 to 2000, was accused in 2009 of bilking investors in his WG Trading Company to finance a lavish lifestyle. He pleaded guilty in April, and partner Paul Greenwood pleaded guilty in 2010.

At the sentencing before U.S. District Judge Miriam Cedarbaum in Manhattan, Walsh said he was "deeply sorry," while his lawyer argued most investors were made whole and said Walsh deserved credit for charitable work, such as co-founding a Long Island Alzheimer's foundation. They asked for 18 to 24 months with community service.

But Cedarbaum was unmoved, noting that the scam went on for 13 years and Walsh fought the charges for five years before pleading guilty and taking responsibility. "The proceeds of this scheme were used for personal extravagances and high living," she said. "Lots of people lost lots of money, and some of it will trickle back to them, but that does not justify using it for your own benefit and spending it on frivolous things."

The judge said she was imposing the maximum penalty for securities fraud of 20 years. That was the sentence recommended by probation officers, called for under federal sentencing guidelines and urged by prosecutors.

Walsh, as part of his plea, had agreed to not appeal any sentence up to 240 months.  But white-collar defendants frequently get more lenient treatment -- in part because many judges feel federal guidelines overemphasize the significance of the amount of loss in calculating sentences -- and the sentence produced gasps from Walsh's friends and family in the gallery. "Oh my God!" said one woman.

Defense lawyer Michael Tremonte first asked Cedarbaum to impose 20 years and a day, so it would become appealable.  "I don't think anyone expected we would be at the outer range of the hypothetical guideline range," he said.  "There is not another case even remotely like it where a 20-year sentence has been imposed."

The judge refused, telling him that she would not circumvent a plea agreement in which Walsh gave up his right to appeal the sentence.  But she agreed to postpone imposing the sentence until Tuesday, to give Tremonte the chance to consult with Walsh and research grounds for withdrawing the plea. Tremonte and prosecutors had no comment after the hearing.

Walsh and Greenwood were charged soliciting $7.6 billion, mostly from institutional investors, to pursue a conservative investing strategy, and then misappropriating it. Walsh allegedly used investor money to finance a divorce settlement and fund businesses for his children, and Greenwood purchased expensive stallions and high-priced teddy bears.

I am inclined to be a bit sympathetic to the defense side here because I find troublesome any and all waivers of the right to appeal a sentence.  That said, I would guess that the defendant here had sound legal representation and knowingly agreed to a plea deal that included such a waiver, and thus I am not especially inclined to believe he should now be able to back out of the deal because it did not work out the way he expected.   And I am not aware of any case in which a judge defered imposition of a sentence to give the defendant a chance to try to undo a plea deal simply because that judge was going to impose a long sentence that was, as reported above, "recommended by probation officers, called for under federal sentencing guidelines and urged by prosecutors."

October 29, 2014 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Is the death penalty really dying a slow death . . . in Texas?!?

The question in the title of this post is prompted by this new piece from The Atlantic, headlined "In Texas, the Death Penalty is Slowly Dying Out: The Lone Star State carried out its fewest executions since 1996 this year." Here are excerpts:

On Tuesday night, the state of Texas executed Miguel Paredes by lethal injection for murdering a woman and her two children sixteen years ago.  With no executions scheduled by the state department of criminal justice for November or December, Paredes' death marks the tenth and final execution for Texas this year — the fewest in almost two decades.

2014 wasn't anomalous either.  Executions in Texas, the most prolific death-penalty state in the country, spiked after Congress restricted federal appeals in death-penalty cases with the Antiterrorism and Effective Death Penalty Act in 1996.  Since then, however, the death penalty has been in overall decline both in Texas and nationwide.  Thirty people have been executed so far this year in the entire United States, whereas Texas alone executed 40 people at its peak in 2000.

What's driving the decline?  Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application.  The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana....

But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment.  Texas had led the nation in imposing the death penalty on under-18 defendants prior to Roper; 29 inmates had their sentences reduced accordingly after the ruling.  More inmates left Texas' death row alive than dead that year for the first time since 1989.  At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole, thereby lowering the number of new death-penalty convictions.

Other extrajudicial factors are also slowing down the death penalty in Texas and around the United States.  Thanks to a European Union embargo that bars the sale of lethal-injection drugs to the U.S., executions nationwide have slowed precipitously as states scramble to find replacements and substitutes....

This doesn't mean executions will completely halt any time soon in Texas.  State officials say they have a sufficient supply of pentobarbital for upcoming executions thanks to a secret supplier they refuse to name through 2015.  Six in 10 Americans still support the death penalty according to a recent Gallup poll, and Greg Abbott, who will likely be elected governor of Texas next week, is also a staunch proponent.  Reversing the overall downward trend, however, would require either a drastic shift in the Supreme Court's jurisprudence or a complete overhaul of Texas sentencing law.  Neither are imminent.

I am glad this piece concludes by noting a number of reasons why the death penalty is very likely to persist in Texas for the years to come. Rather than talking about the death penalty potentially dying in Texas, I think the notable data on death sentences and executions in the state over recent years ought to be examined and analyzed as part of an effort to assess what might be deemed a "sound" or "stable" use of the death penalty within a state clearly committed to having the punishment be a significant aspect of its modern punishment system.

October 29, 2014 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, October 27, 2014

Two condemned New Mexico murderers left behind after death penalty repeal seek relief from NM Supreme Court

As reported in this local article, headlined "Convicted murderers ask to be taken off death row," in New Mexico the "last two inmates on death row are asking the state’s highest court to get them off the list."  Here is more:

New Mexico’s only inmates facing possible execution want the state supreme court to declare their death sentences unconstitutional because capital punishment was abolished after their convictions.

Attorneys for the two convicted killers say their sentences are unconstitutional, while the state is still backing their death penalty. The hearing lasted around an hour and half Monday morning, but no official decision will be made for at least a few months.

Attorneys for Timothy Allen and Robert Fry argued this morning that carrying out their death sentence would be cruel and unusual punishment and would violate “equal protection” rights for the two as New Mexico residents.

New Mexico repelled the death penalty in 2009 and the two are arguing that because of that, their sentences should be changed, even though they were both convicted when the death penalty was still law.  Allen killed 17-year old Sandra Phillips in 1994 after kidnapping her and trying to rape her.  Robert Fry was convicted of killing a mother of five in 2000.  He also murdered three other people in the ’90s.

Attorneys for the two men argued that the death penalty is cruel and unusual based on a report from the state’s Death Penalty Task Force which cited cost and liabilities with a death sentence. They also argued that it violates equal protection to effectively set a date when people can and can’t face the death penalty.

Meanwhile, the state argued that justices would be “overstepping” their reach if justices chose to allow Allen and Fry to live. The state says that would be like the justices re-interpreting what the legislature wished to do....

New Mexico has only executed one person in the last 54 years. It was Terry Clark who was a convicted child rapist and killer.

October 27, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Prosecutors in South Africa indicate they plan to appeal Pistorius outcome

As reported in this article, headlined "South Africa prosecutors to appeal against Pistorius sentence," it appears that the Blade Runner is not done running from serious legal difficulties. Here are the bascis:

South Africa’s state prosecutor plans to appeal against Oscar Pistorius’s culpable homicide conviction and five-year prison sentence for shooting his girlfriend Reeva Steenkamp, it said on Monday.

Nathi Mncube, spokesman for the National Prosecuting Authority, said the NPA expected to file papers in the next few days. Until the papers were filed, it would not announce the grounds for appeal, it said.

But Pistorius’s conviction for culpable homicide has drawn criticism from some legal commentators. After the athlete, a double-amputee who starred at the 2012 London Olympics and Paralympics, was sentenced last week, there was more controversy when lawyers said he could serve as little as 10 months, or a sixth of the five-year term.

In South Africa, an appeal can only be made on a matter of law, “where we think . . . the judge made an error in interpretation and in the manner in which she applied the law to the facts”, Mr Mncube said.

Pistorius had been charged with premeditated murder after shooting Steenkamp, a 29-year-old model and law graduate, four times through the locked toilet door in a bathroom at his home in the early hours of Valentine’s Day last year.   But Judge Thokozile Masipa ruled that the prosecution failed to show Pistorius had intent to kill, while saying there was “no basis on which this court could make inferences of why the accused would want to kill the deceased”. Instead, she appeared to believe Pistorius’s version of events, despite describing the 27-year-old as a “poor” and “evasive” witness.

October 27, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

"Truth, Justice, and the American Style Plea Bargain"

The title of this post is the title of this article by Ken Strutin now available via SSRN. Here is the abstract:

In the 2011 term, the Supreme Court decided two cases, Missouri v. Frye and Lafler v. Cooper, which highlighted whether the Sixth Amendment right to counsel safeguarded the integrity of the trial or encompassed non-trial facets such as the plea bargain.  This line of decisions has been followed most recently by Burt v. Titlow, which further defined the role of postconviction record-making in assessing the fundamental question: Did the right to effective assistance of counsel protect the accuracy of the verdict or the fairness of the process?

Through the prism of recent Supreme Court plea bargaining decisions this Article examines their implications for the competing goals of truth versus process.  Part I frames the argument about the nature of criminal justice and the tension between fact-finding trials and resolution making plea negotiations.  Then, those values are scrutinized in the context of three recent and watershed Supreme Court decisions: Part II Missouri v. Frye, Part III Lafler v. Cooper, and Part IV Burt v. Titlow.  Lastly, Part V considers the lessons of wrongful incarceration as guideposts to align accuracy with certainty in the administration of justice.

October 27, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, October 25, 2014

"Jury Says Castrated Sex Offender Should Be Freed"

The title of this post is the headline of this notable AP story out of California.  Here are the intriguing details:

A Southern California jury on Friday found that a castrated sex offender who preyed on young girls should no longer be considered a sexually violent predator and is eligible for release. Jurors in Orange County determined that Kevin Reilly, 53, does not need to remain locked up at a state mental hospital. He could be released as early as Friday, his lawyer said, but online jail records show he remained in custody as of mid-afternoon.

"There was simply no evidence he was likely to reoffend," said Holly Galloway, deputy public defender. "What the jury did was amazing because they followed the law and that's a hard thing to do with someone with his history, but it's the right thing to do."

Reilly served time in prison for sex offenses committed in the 1980s and 1990s and has been locked up in a state mental hospital since 2000 under a California law that enables authorities to forcibly commit sex offenders they believe will reoffend. He paid to be surgically castrated in 2003 to help control his pedophilia and completed a treatment program for sex offenders in 2010. State-appointed evaluators found he was not likely to reoffend, Galloway said, adding that Reilly also completed a bachelor's degree and master's degree.

Prosecutors argued that Reilly is still dangerous and that the effects of his castration, which aimed eliminate his sex drive, can be mitigated through testosterone injections. Michael Carroll, deputy district attorney, said Reilly did not confess to molesting one of his victims until three years ago and there were conflicting reports about what he told his evaluators and the court.

"I don't think he was honest during his treatment," Carroll said. "I think he continued to lie and attempted to manipulate because his ultimate purpose, I think, is to get out of the hospital, not necessarily to prevent creating any future victims." Reilly served time for committing lewd acts on four young girls over more than a decade, and later conceded he had abused at least three others, Carroll said. Most of the girls were between 4 and 8 years old.

He is required to register as a sex offender once he is released, and is planning to move to Utah, where he will participate in an outpatient treatment program for sex offenders and look for an accounting job, Carroll said.

Stories like this one provide support for my general view that juries, serving often as the conscience of a community, can and should be more often trusted to make difficult sentencing-type determinations and should not be relegated only to serving as a limited (and infrequently used) fact-finder in the operation of modern criminal justice systems.

October 25, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider

As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case.  Here are the details:

The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.

In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.

The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....

The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept.  Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.

Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....

But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....

“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....

The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013.  The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence.  But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated.  Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.

The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.

October 25, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, October 24, 2014

Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion

As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:

In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.

Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”

The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.

Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.

A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”

The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....

Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....

Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”

Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.

The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.

October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, October 23, 2014

Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty

As reported in this story from the Catholic News Service, the leader of the Catholic Church can now be added to the list of persons vocally advocating against life without parole sentences.  Here are the details:

Pope Francis called for abolition of the death penalty as well as life imprisonment, and denounced what he called a "penal populism" that promises to solve society's problems by punishing crime instead of pursuing social justice.

"It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor," the pope said Oct. 23 in a meeting with representatives of the International Association of Penal Law.

"All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty. And this, I connect with life imprisonment," he said. "Life imprisonment is a hidden death penalty." The pope noted that the Vatican recently eliminated life imprisonment from its own penal code.

According to the Catechism of the Catholic Church, cited by Pope Francis in his talk, "the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor," but modern advances in protecting society from dangerous criminals mean that "cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent."...

The pope denounced the detention of prisoners without trial, who he said account for more than 50 percent of all incarcerated people in some countries. He said maximum security prisons can be a form of torture, since their "principal characteristic is none other than external isolation," which can lead to "psychic and physical sufferings such as paranoia, anxiety, depression and weight loss and significantly increase the chance of suicide." He also rebuked unspecified governments involved in kidnapping people for "illegal transportation to detention centers in which torture is practiced."

The pope said criminal penalties should not apply to children, and should be waived or limited for the elderly, who "on the basis of their very errors can offer lessons to the rest of society. We don't learn only from the virtues of saints but also from the failings and errors of sinners."

Pope Francis said contemporary societies overuse criminal punishment, partially out of a primitive tendency to offer up "sacrificial victims, accused of the disgraces that strike the community." The pope said some politicians and members of the media promote "violence and revenge, public and private, not only against those responsible for crimes, but also against those under suspicion, justified or not."

He denounced a growing tendency to think that the "most varied social problems can be resolved through public punishment ... that by means of that punishment we can obtain benefits that would require the implementation of another type of social policy, economic policy and policy of social inclusion." Using techniques similar to those of racist regimes of the past, the pope said, unspecified forces today create "stereotypical figures that sum up the characteristics that society perceives as threatening."

October 23, 2014 in Purposes of Punishment and Sentencing, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, October 22, 2014

Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?

The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:

So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).

Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....

To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.

Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.

She is particularly open about her support for marijuana legalization, arguing in a recent CNN.com op-ed that the “solution is clear: …states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.”...

But Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.

Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”

Sound public policy must be based on facts, not radical unsafe, and dangerous theories.

I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."

The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.

That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate.  (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.)   I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues.  But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.

October 22, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, October 21, 2014

"Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases"

The title of this post is the title of this intriguing new empirical study authored by Joanna Shepherd and Michael Kang.  Here is the study's summary:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals.  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections.  Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections.  These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights.  Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

This study’s two principal findings:

  • The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.  As the number of airings increases, the marginal effect of an increase in TV ads grows.  In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

  • Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision.  Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

The study is based on the work of a team of independent researchers from the Emory University School of Law.  With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013.  State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases.  These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.

The findings from this study have several important implications.  Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves.  Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.

October 21, 2014 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack