Friday, June 03, 2016

"Conservatives should celebrate Obama’s commutations"

Institute_for_Policy_Innovation_1313374The title of this post is the headline of this new Dallas Morning News commatary.  The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:

The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation.  This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration.  And word out of the White House is that there will be more to come during President Obama’s final months in office.

Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime.  But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.

It’s becoming clear that something has gone very wrong with the justice system in the United States.  Today, the U.S. has the highest incarceration rate in the world.  Too many crimes have been federalized, as opposed to being handled more locally by state and local courts.  Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements.  And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....

Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums.  While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict.  It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.

Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm.  Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison.  Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences.  But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.

Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption.  Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”

Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption.  Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive.  Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities.  And libertarians — well, libertarians already get it.

There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration.  But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.

June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Appellate judges certify to Florida Supreme Court whether state sentencing scheme violates Due Process Clause or Eighth Amendment

A helpful reader alerted me to a remarkable decision handed down earlier this week by the Florida's Fourth District Court of Appeals. The reader provided this helpful summary that I could reprint here (with my emphasis added):

The Fourth District Court of Appeal wrote a decision that (in essence) asks our Supreme Court to revisit the constitutionality of our sentencing scheme, a scheme that gives judges complete discretion to sentence a defendant anywhere between a calculated "lowest permissible sentence" and the statutory maximums stacked end to end. This system of nearly unlimited sentencing discretion is everything Judge Frankel decried, and the sentence the court reviewed is a case in point: the defendant was 55 years old, he had no prior record, and his "lowest permissible sentence" was 23.7 months in prison.  For trying and failing to steal three boat motors he was sentenced to 35 years in prison (the statutory maximums stacked end to end), effectively a life sentence.

Judge Gross wrote a thoughtful and scholarly concurring opinion that begins with the history of sentencing in Florida, talks about the evils of unfettered sentencing discretion, and ends with Judge Frankel and his modest proposal that judges be required to explain their sentencing decisions (at present they need say nothing).

Here is the question the court certified to Florida Supreme Court as one of great public importance:

Does a sentence within the statutory maximum under the Criminal Punishment Code violate either the Due Process Clause or Eighth Amendment when it is significantly greater than the lowest permissible sentence on the defendant’s scoresheet or the offered plea and grossly disproportionate to the median sentence imposed for similar crimes within the jurisdiction?

Alfonso-Roche v. Florida, No. 4D13-3689 (Fla. 4th DCA June 1, 2016) (available here).

I do not know enough about Florida's appellate procedures to know if the Florida Supreme Court will now have to, or at least is now very likely to, take up these important constitutional issues.  But for anyone and everyone working in state or federal systems worried about the exercise of unfettered sentencing discretion, this Alfonso-Roche decision is today's must-read.

June 3, 2016 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Former House Speaker (and future Trump running-mate?) Newt Gingrich helps make the case for "raising the age" for adult prosecutions

Regular readers know that Newt Gingrich has become a notable and frequent "right on crime" commentator calling for all sorts of criminal justice reforms in all sorts of settings.  And here we have another example:  this new commentary authored by Gingrich and Pat Nolan, headlined "Don’t train kids to be felons in adult jails," makes the case for limiting the prosecution of teenagers as adults in Louisiana.  Here are excerpts: 

The noted “tough on crime” criminologist John Dilulio once commented that “jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.” Louisiana should heed Dilulio’s caution against locking up young petty criminals alongside violent adult criminals. The Bayou State is one of only nine states that prosecutes 17-year-olds as adults, often for the most minor of crimes (stealing a bag of potato chips, for instance).

We all can agree that breaking the law is wrong and that these teens deserve to face consequences for their actions. But tossing them into adult jails with hardened criminals just makes those bad situations worse. The research and data are clear: Adult jails are no place for teenagers, who with the help and guidance of parents are likely able to turn their lives around.

Placing youngsters in adult jails makes them more likely to be victims of rape and assault, and more likely to commit suicide. They also are likely to learn a lot more about leading a life of crime from the hardened criminals. There is a lot of truth in the notion that jails and prisons are graduate schools of crime.

In addition, the damage of this policy continues long after they are released. By treating teens differently from the majority of the country, Louisiana makes it harder for them to grow into successful adults....

Fortunately, the Legislature is working on a bill to “Raise the Age” of juvenile jurisdiction. It would assign most 17-year-olds who commit offenses to the juvenile justice system, where they would be held accountable, continue their schooling, learn critical skills and be prepared to live productive and healthy lives as law-abiding members of society. Prosecutors still would be free to choose to prosecute youth accused of more serious offenses as adults....

Raising the age would make society safer and stronger by doing away with the destructive “one-size-fits-all punishment” system we have now. Adult jails and prisons can turn teens into career criminals, and taxpayers are stuck with the bill. By raising the age of how we punish and reform young people who make minor mistakes, Louisiana will help these kids turn their lives around, will make neighborhoods safer and in the process will save taxpayers money. This is being smart on crime.

As the headline of this post highlights, I think Gingrich's continued advocacy for all sort of criminal justice reform is especially notable and important in light of the fact that he name is being brought up repeatedly as a possible running mate for GOP Prez nominee Donald Trump.  As detailed in a number of posts linked below, Gingrich has had his name on many commentaries in the last few years vocally supporting a wide array of modern state and federal sentencing reform efforts.  If Trump were in fact to select Gingrich as his running mate, I would have to rethink my belief (and fear) that the Trump campaign will be actively opposing most criminal justice reform efforts.

Prior related posts about Gingrich's criminal justice reform advocacy:

June 3, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, June 02, 2016

FreedomWorks explains why GOP opposition to federal sentencing reform is "unreasonable"

Writing at FreedomWorks, Jason Pye has this lengthy posting headlined "The Unreasonable Opposition to Justice Reform in the Senate," which gets started this way (with links in the original):

Recently, Sen. Tom Cotton (R-Ark.) gave a speech at the Hudson Institute in Washington, in which he offered his case against the justice reform effort in Congress led by conservatives like Sen. Mike Lee (R-Utah), Sen. Tim Scott (R-S.C.), and Rep. Raul Labrador (R-Idaho).  Apparently unaware of the efforts of more than 30 states, including several traditionally Republican states, Cotton ridiculously labeled the federal push as "criminal leniency."

FreedomWorks has already responded to some of Cotton's hyperbolic statements on justice reform. Unfortunately, even after proposed legislation was improved to address the concerns of a handful of senators, Cotton doubled down on his opposition in his speech. Some of the more egregious comments from his speech are in italics below, immediately followed by a response to set the record straight.

"These policies are not merely wrong. They are dangerous. They threaten a return to the worst days of the 1990s, when law-abiding citizens lived in fear of their lives. Indeed, we may be living through the leading edge of a new crime wave. Over the last two years, murders across 56 of our largest cities are up 17 percent. The numbers are even more shocking in some cities. In Chicago, murders jumped 70 percent in the first quarter of this year alone. In Las Vegas, 81 percent. In Long Beach, 125 percent."

These are deceptive words, to say the least. As Cotton mentioned, crime rates have declined significantly since the early 1990s. Pew Research found that gun-related homicides, including suicides, declined by 31 percent between 1993 and 2014. Excluding suicides, the figure is closer to 49 percent. Over the same period, the nonfatal firearm crime victimization rate declined by nearly 75 percent. A separate report released in 2013 noted that the public was largely unaware that violent crime was on the decline.

There has been much made of a "new crime wave," but it is difficult for anyone to make such a statement based on a short-term look at the data. The Federal Bureau of Investigation (FBI) publishes annual reports on crime data that offers more context and insight, rather than anecdote. Even in the midst of the decline in crime rates, the United States experienced two consecutive years in which homicide rates increased, 2005 and 2006. In 2007, the homicide rate began to decline again.

According to the last two full-year reports, crime continued to decline, almost across the board. In 2013, crime, including homicides and other violent crime, was down. The downward trend continued in 2014. The FBI hasn't released data for all of 2015; the report is not due for a few more months. The Brennan Center released a preliminary analysis of crime rates in 2015 and found that the "new crime wave," as Cotton puts it, does not exist. But even if the overall crime rate increased, it does not mean that there is some new crime wave. Again, 2005 and 2006 proved to be outliers, and 2015, if the crime rate does rise, may be just that.

June 2, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (6)

Wednesday, June 01, 2016

Are there really now lots more conservatives in lots of states "starting to question the cost and legality of capital punishment"?

The question in the title of this post is prompted by this new short Governing article with this full headline: "The Death Penalty’s New Skeptics: In states across the country, conservatives are starting to question the cost and legality of capital punishment."  Here are excerpts from the article:

It’s a government program that is prone to error, marred by long delays and far more expensive than alternative policies.  So it may be little wonder that the death penalty keeps attracting new opposition. But it’s surprising where some of that opposition is coming from. 

Over the past decade, the death penalty has been abolished in seven states. Most of those are dominated by Democrats. But the most recent is deeply conservative Nebraska, where lawmakers overrode Gov. Pete Ricketts’ veto of an abolition bill last year.  Other red states are revisiting the issue as well.   A bill to abolish the death penalty fell short by a single vote in a Kentucky House committee this year, while similar legislation actually passed the Utah Senate before failing in the House.  Last year, the Montana House killed an abolition bill on a tie vote.  A few months later, a judge there imposed a moratorium on executions, citing the difficulty of obtaining appropriate drugs for lethal injection -- an issue that has put capital punishment on hold in several states.  Litigation over delayed or botched executions compounds problems with meting out the penalty.  “Our death penalty is a joke,” Republican state Rep. Clayton Fiscus said during the debate.

The average death row inmate can cost tens of thousands of dollars a year more to house than run-of-the-mill criminals.  Prisoners who are executed can cost upward of $1 million more than those sentenced to life without possibility of parole.  “This is a program that’s so bad, the left and right can actually agree on it,” says Marc Hyden, a former field representative with the National Rifle Association who now works for an advocacy group called Conservatives Concerned About the Death Penalty....

[I]t’s indisputable that the growing corps of death penalty skeptics now includes many conservatives.  There are enough Republican legislators in Washington state ready to join with Democrats that a repeal measure there could pass, if a key committee chair would allow it to come to a vote.  “Many of us conservatives don’t trust government to launch a health-care program or fill potholes, let alone carry out life and death,” Hyden says.  “It’s the quintessential broken big-government program.”

I would not dispute that a few prominent GOP elected officials in a few states that have never had a long history of active and effective use of the death penalty may ultimately conclude (as did some in the Nebraska legislature) that it makes more sense to end rather than try to mend a rarely-applied punishment. But I do not believe any of the 17 persons who sought the GOP nomination for Prez this year had ever expressed any reservation about the death penalty either in theory or in practice.

June 1, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

"Correctional Control: Incarceration and supervision by state"

The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):

Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.

For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation.  We make the data accessible in one nationwide chart and 100 state-specific pie charts.

Incarceration rates do not always tell the complete story of the criminal justice system in each state.  Notably, some of the states that are the least likely to send people to prison, such as Rhode Island and Minnesota, are among the most punitive when other methods of correctional control are taken into account.  Other states that rank in the bottom half of incarceration rates nationwide, such as Ohio and Idaho, end up surpassing Louisiana — the state notorious for being the global leader in incarceration — in rates of correctional control.  Georgia is punitive from any angle, as the only state that is both a top jailer and leader in probation.

We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.

Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.

Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population.  We find that for every 100 people incarcerated in a state prison in that state:

  • Maine has 1 person on parole.
  • Florida has 4 people on parole.
  • Arkansas has 117 people on parole.
  • Pennsylvania has 198 people on parole.

June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Tuesday, May 31, 2016

Is "geography" really an "arbitrary feature" of a capital prosecutions?

The question in the title of this post is prompted by this passage today in Justice Breyer's dissent from the denial of certiorari in Tucker V. Louisiana (with my emphasis added):

Lamondre Tucker shot and killed his pregnant girlfriend in 2008.  At the time of the murder, Tucker was 18 years, 5 months, and 6 days old, cf. Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”), and he had an IQ of 74, cf. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (execution of the intellectually disabled violates the Eighth Amendment). Tucker was sentenced to death in a Louisiana county (Caddo Parish) that imposes almost half the death sentences in Louisiana, even though it accounts for only 5% of that State’s population and 5% of its homicides. See Pet. for Cert. 18.

Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography.  See Glossip v. Gross, 576 U. S. ___, ___–___ (2015) (BREYER, J., dissenting) (slip op., at 12–14).  One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row.

I do not dispute that Tucker might not have been sent to death row if he had committed the same murder, and had been tried and sentenced, in another county. Indeed, one can certainly assert that had Tucker committed the same murder in, say, Michigan, a state without te death penalty, he definitely would not be on death row.  But, I do not think it quite right to call this geographic reality "an arbitrary feature of his case."  Arbitrary means "not based on reason," but there are many (seemingly sound) reasons why geography often will define and influence how a capital prosecution proceeds.

Most obviously, a criminal being capitally prosecuted has generally picked where his murder took place, and he typically will be (and some times only can be) prosecuted in a particular locality due to his own homicidal choices.  Moreover, the locality where a murder is committed necessarily experiences the impact of the crime most directly, and local decision-makers ought to be most responsive to local concerns as to how best to respond to that murder.  And, a locality's prosecutors and judges and jurors have all been selected to be respresentative of local community views and judgments.  (Indeed, in his concurring opinion in Ring v. Arizona, Justice Breyer made much of a "community’s moral sensibility" in the resolution of capital cases and the importance of a jury's role in reflecting "a community’s sense of capital punishment’s appropriateness in a particular case.")

In other words, to parrot a newly popular SCOTUS term, I think it is nonsense to call geography an "arbitrary feature" of a criminal case. And while lots of abolitionists complain about the impact of geography on the adminstration of capital punishment, I have never found this complaint to be conceptually convincing or nearly as compelling as other arguments against the modern administration of the death penalty.

May 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

"Marijuana Enforcement Disparities In California: A Racial Injustice"

The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:

Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction.  Subsequently, misdemeanor marijuana arrests plummeted by 86 percent.  Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher.  This can be a substantial burden for young and low-income people.  According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....

Infraction data are hard to come by in California.  The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys.  In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.

These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough.  There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys.  While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.

Cross-posted at Marijuana Law, Policy & Reform

May 31, 2016 in Data on sentencing, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Highlighting just some of the ways that "Democratic Leadership Is Missing In Action on Mass Incarceration"

Election_donkey3The quoted portion of this post's title comes from this new commentary at The Nation authored by Inimai Chettiar and Ames Grawert. The piece carries the subheading "Sentencing reform will be a compromise between moderate and conservative Republicans, unless Democrats finally come to the table," and here are extended excerpts:

Even though it now looks like Americans will be deprived the drama of a contested Republican convention, the gathering in Cleveland could hold at least one surprise.  The Republicans are set to vote on an RNC resolution to reduce mass incarceration.  The measure asks for “reforms for nonviolent offenders at the state and federal level” and urges “state legislators and Congress to…provide substance abuse treatment to addicts, emphasize work and education, and implement policies that cut costs while obtaining better outcomes.”

Finally, Democrats may say, Republicans have woken up to mass incarceration as a 21st-century civil-rights struggle, joining what has for years been a progressive fight.  Not so fast. If the Republican Party makes criminal justice reform a priority, they’ll be the first major party to do so, ever.  Democrats need to catch up. Adding ending mass incarceration to their own platform would mark a significant step, boldly breaking with their past politics.

So what have the Democrats said about criminal justice?  Recent Democratic platforms haven’t merely been silent; they have actually called for policies creating more imprisonment, and then applauded the result.  Mentions of progressive alternatives are hard to find.

In 1992, Democrats supported alternatives to incarceration, such as “community service and boot camps for first-time offenders.” But four years later the platform went in the opposite direction. It praised mandatory “three-strikes-you’re-out” laws, truth-in-sentencing provisions that limited earned early release, and “$8 billion in new funding to help states build new prison cells.”  At the turn of the century, the party still championed “tougher punishments” as a way to fix “an overburdened justice system that lets thugs off easy,” and applauded federal funding for “new prison cells” as a major success story (a clear nod to the 1994 Crime Bill, which paid states to increase imprisonment).

More recently, in 2008 and 2012, the DNC approved language supporting “local prison-to-work programs” aimed at “making citizens safer and saving the taxpayers money,” and noting the importance of “fight[ing] inequalities in our criminal justice system.” But neither platform made any mention of sentencing reform, or reducing the number of criminal laws, even as the US incarceration rate topped the world and some states reversed course on their “tough-on-crime” policies.

This year’s Democratic presidential candidates have broken with this legacy. Both Hillary Clinton and Bernie Sanders have prominently featured prison reform in their campaigns and vocally noted that the 1994 Crime Bill, which they both supported, went too far.

Yet Democrats still lag behind. Today’s movement to end mass incarceration has largely been led by Republicans. If the federal Sentencing Reform and Corrections Act passes Congress, advocates will have Republican Senators Mike Lee (Utah) and John Cornyn (Texas) to thank for courting support for the bill and hammering out compromises with the party’s most conservative members. At the state level, Republican Governors Rick Perry in Texas and Nathan Deal in Georgia fought for and signed laws that led to sharp reductions in the prison population. In Ohio, Governor John Kasich championed and signed legislation in 2011 to expand the use of treatment in lieu of prison.

In announcing the Republican National Committee resolution to end mass incarceration, RNC member Tom Mechler claimed that “Republicans are the ones that have taken the lead on this.” That’s no idle boast — he’s right. So where are the Democrats?

A few Democrats have stepped up to champion the cause, such as Senators Dick Durbin, Corey Booker, and Patrick Leahy. But the senior party leadership — Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz — have largely been mum. Other influential party voices, including Elizabeth Warren and Chuck Schumer, have done the same. To be sure, Democrats may still be haunted by the ghost of Willie Horton and the fear of being branded as “soft on crime.” And some may believe that stoutly maintaining a belief in “law and order” will secure votes.

But times have changed. Now Democrats can point to Republicans such as Lee, Cornyn, Perry, and Kasich. Even law enforcement supports reform. These conservative voices now give Democrats cover to come out strongly on the issue. And, in the wake of a national protests to reform policing, Clinton and Sanders have energized parts of Democratic electorate — African-American communities and white liberals alike — on the issue. The consensus to reduce unnecessary imprisonment has arrived. But we will never see true reform until Democrats provide a solid left flank, so that compromise lands at the center, instead of to the right.....

Criminal justice reform should be a simple step for a party that believes in progress, equality, and inclusion. It was the Democrats who fought for civil rights in the last century. If the Democrats do not raise their voice, history will record that it was the Republicans who led the civil-rights struggle in this one.

Though I am pleased to see this piece calling out failings of Democratic Party leaders like Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz, this commentary still strikes me as many days too late and many dollars short. First and foremost, where is the needed criticisms of the Clintons and the Obamas, who are and seem likely to remain for some time the four most important Democratic leaders? Regular readers know I lay particular blame on the Clintons not only for consistently moving to the right on criminal justice issues for crass (and racialized) political benefits in the 1990s, but particularly for not being involved in helping to swinging the pendulum back when mass incarceration became an obvious problem in the following decade and Justice Reinvestment movements could have used an extra boost from the mainstream left. But I also blame the Obamas: the Prez (and lawyer and constitutiuonal scholar) certaintly could have and should have invested more time, energy and political capital on an array of "low-hanging" federal sentencing reform opportunities during his first Term; the First Lady (also a lawyer) perhaps could have and should have incorporated discussion of criminal justice reform into her advocacy for healthy families, service members and their families and higher education.

Second, as especially critical right now, this piece (and many others) ought to be aggressively attacking Prez Obama and other Democrats for being resistent to the federal mens rea reform that Republicans want to see included in sentencing reform efforts. I continue to be both annoyed and deeply disappointed that an issue like mens rea reform, which should be a cause championed by true liberals, has become a critical impediment to getting a sound and needed federal sentencing reform bill through Congress. I have long suspected and feared that sentencing reform would not get done this year absent Prez Obama and other Democrats being willing to work toward sound and needed mens rea reform, and yet it does not appear any real efforts are being made by anyone on the D side of the aisle.

And do not get me started on the failure of federal Democratic Leadership to see the extraordinary opportunities that state-level marijuana reforms has created in recent years for remaking the modern federal war-on-drugs narrative.  As long time readers may know, I consider effective federal and state marijuana reforms to be a critically important front in the battle against mass incarceration, and one that should have even more long-term potential and impact than modest federal sentencing reforms discussed in Congress.  But, short-sighted and fixed in their own dated views of political realities, establishment Democrats have now an impressively long record of mistakes and missed opportunities in this arena.  Sigh.

May 31, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (8)

SCOTUS order list inclludes a couple notable criminal appeal summary reversals

The Supreme Court returned from the long weekend with this long order list, which includes a few long per curiam decision in an habeas case from the Ninth Circuit (Johnson v. Lee) and a capital case from Arizona (Lynch v. Arizona). In addition, the Court denied cert in Tucker v. Louisiana, a case in which the constitutionality of the death penalty was directly challened and Justice Breyer (joined by Justice Ginsburg) dissented in an opinion that calls again for taking up this question.

Notably, the Ninth Circuit (and the criminal defendant) is the loser in Lee, whereas the capital defendant prevails in Lynch.  There was not dissent from the ruling in Lee, but Justice Thomas (joined by Jusice Alito) dissented from Lynch.

May 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution

As noted in this prior post, last week federal prosecutors finally decided that they will seek the death penalty for racist mass murderer Dylann Roof.  That decision, as reported in this recent local article, now creates some novel issues in light of South Carolina's parallel capital prosecution plan.  The article, headlined "Dylann Roof prosecution entering ‘uncharted waters’ of legal history," includes these passages:

Authorities will have two chances to see that Dylann Roof meets the same fate as his victims.

But never in modern times have both state and federal prosecutors sought someone’s execution at the same time. How they will manage two death penalty cases could break legal ground and offer some lessons.

“We are in completely uncharted waters,” said Chris Adams of Charleston, an experienced capital defender. “The federal government’s decision (to seek the death penalty) creates many more questions than it does answers.”...

Scheduled for Jan. 17, the state’s trial is on a faster track. Wilson also sent a letter to [U.S. District Judge Richard] Gergel, asking him to set the federal trial later. The judge could finally set a trial date at a June 7 hearing.... The possibilities are daunting. “It just creates logistical chaos,” Adams said. Officials must sort out subpoenas being filed in two different courts, he said. Prosecutors in each case also must give the defense all exculpatory evidence, or information used to fend off a guilty verdict or to mitigate a sentence. If some evidence is missed in the first trial only to be discovered when it’s turned over in the second trial, that might be grounds for an appeal in the first...

State and federal authorities rejected Roof’s offer to plead guilty and serve life in prison. “Now what we’re going to have is ... possibly two very public, very painful trials and unquestionably a decade of appeals,” [DPIC executve director Robert] Dunham said. “The families will have to deal with Dylann Roof getting all the attention.” But Dan Simmons Jr., whose father was slain in the attack, said prosecutors have made him well aware of that. The Virginia resident has attended most hearings in the two courthouses that sit across the street from each other. “It’s been more than overwhelming,” he said. “But it’s not an overnight thing. ... It’s going to open up some wounds. But we will endure.”...

The state ran out of its supply of the fatal drug [used in executions] in 2013. Citing ethics, all major manufacturers have cut off the states, whose stashes soon expired or were seized as illegal imports. And the federal government has been reviewing its injection methods since 2010, effectively halting executions. There is no indication that either government is in a better position to obtain the supplies now, Dunham said. State prisons spokeswoman Stephanie Givens said, “Officials continue to research solutions and alternatives but have been unsuccessful in acquiring lethal injection drugs.” So even if a jury condemns Roof to death, experts said, the 22-year-old could live a long life in prison — unless he voluntarily opts for South Carolina’s alternative execution method: the electric chair.

I cannot at this point resist highlighting that I flagged the possibility of a double capital prosecution in this post about the case back in June 2015.

A few prior related posts:

May 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Monday, May 30, 2016

New Vera Institute report reviews trends in state sentencing and corrections

Download (3)The folks at The Vera Institute of Justice's Center on Sentencing and Corrections released last week a terrific report on state sentencing developments under the title "Justice in Review: New Trends in State Sentencing and Corrections 2014-2015." The full 72-page report (with lots of charts) is available at this link; a short summary is available here and includes this text: 

Prompted by dissatisfaction with stubbornly high rates of return among those released from prison, and encouraged by public opinion polls that show a majority of the electorate believes that prison growth has yielded insufficient public safety gains, there is an emerging consensus across the political divide that America’s over-reliance on prison has been too costly and ineffective. Driven by the need to find better solutions, policymakers over the past several years have embraced decades of research and analysis examining what works in corrections to reduce recidivism and improve public safety.

Informed by this research and analysis, 46 states in 2014 and 2015 enacted at least 201 bills, executive orders, and ballot initiatives to reform at least one aspect of their sentencing and corrections systems. These included laws to

  • create or expand opportunities to divert people away from the criminal justice system: States increased the use of alternative case dispositions, such as deferred adjudication programs, which allow people with first-time or low-level charges to avoid entering a guilty plea or ending up with a record of conviction if they serve a crime-free probationary period. States also expanded or strengthened the use of problem-solving courts that channel people with specific treatment needs, such as mental illness or substance abuse issues, into alternative judicial settings that provide intensive supervision in the community and treatment in lieu of prosecution or sentencing. Still other states passed laws that empower arresting officers to divert certain defendants—especially those with an identified mental health need—into treatment instead of detention;

  • reduce prison populations: States enacted laws to reduce or contain prison populations by 1) making certain offenses eligible for community-based sentences; 2) reducing the length and severity of custodial sentences by redefining or reclassifying crimes or repealing mandatory penalties; 3) shortening lengths of stay in prison by expanding opportunities to earn sentence credits, which shave off time in custody and advance parole eligibility; and 4) reducing the influx of people into prison for violations of community supervision by implementing evidence-based practices such as graduated responses to violations; and

  • support people’s successful reentry into the community: To reduce recidivism, states changed their reentry systems to provide better coordination between prisons and community supervision agencies and to increase programming and treatment. In addition, states are supporting family relationships by facilitating family visitation, supporting relationships between incarcerated parents and their children, and ensuring that children of incarcerated people receive care and support. States are also helping people who are justice-involved obtain benefits, state identification, and exercise their voting rights; improving employment prospects by limiting bars on professional licenses and providing certificates of rehabilitation and employability; waiving fines and fees that often create economic obstacles to reintegration; and making it easier for people to expunge prior convictions and more difficult for private entities to disseminate criminal-records data.

May 30, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Making the case for "Why Latinos Should Invest in Sentencing Reform"

Three notable advocates recently penned this notable Huffington Post commentary that has as its headline the quoted portion of this post's title. Here is how the piece starts and ends:

Partisan gridlock has halted many important policies from becoming realities. One of the promising policies, the Sentencing Reform and Corrections Act of 2015, is currently stalled in the Senate. If enacted, the legislation will have a colossal effect on Latinxs. Once incarcerated, Latinxs face limited economic opportunity, family trauma, turmoil, and deportation — consequences that do not in any way reflect reasonable punishment for the often minor infractions that occur.

Rita Becerra is one of those Latinxs. Rita, who was a single mother of two children and a new grandmother in 1994, was arrested and sentenced to 27 years behind bars for drug charges stemming from her live-in boyfriend’s involvement in the drug trade. Prior to that, Rita had never even had a traffic ticket. Although Rita had never touched any drugs or delivered them, she was charged with conspiracy with intent to distribute. Rita’s boyfriend was able to reduce his sentence to 9 years because he provided details about criminal activities to the prosecution. Yet, Rita could not plea bargain because the only information she knew of concerned her boyfriend’s illegal enterprises and the prosecution already had that knowledge.

This dilemma, where those most involved with a crime possess the lion’s share of information and can bargain for time off while those who may have little involvement — and thus little knowledge of crimes — receive a full sentence, is a frustratingly common occurrence. Rita’s story is as tragic and unjust as it is commonplace. Women are the fastest growing group of prisoners, boasting an incarceration rate almost double that of men leaving more than one million women behind bars.

Another alarming trend is that Latinxs are unjustly targeted because of policies and practices that perpetuate their involvement in the criminal legal system and immigration system. Consequently, Latinxs are twice as likely to be incarcerated as whites and are over-represented in state prisons in 31 of the 50 U.S. states. They are also overrepresented in the federal system, where Latinxs—who are 17.4 percent of the U.S. population—make up 33.8 percent of the incarcerated population in federal prisons. Indeed, today, 1 in every 6 Latino men and 1 in every 45 Latina women can expect to go to prison in their lifetime. As a result, 1 in 28 Latinx children in the U.S. have an incarcerated parent compared to 1 in 57 white children. Research shows that children who grow up with an incarcerated parent are more likely to go to prison themselves, in addition to suffering from a host of long-term effects and disabilities like attention deficits, mental illness, and physical health issues such as obesity, trauma, depression, and anxiety....

Make no mistake: criminal justice reform is a Latinx issue. But more importantly, it is a human rights issue of epic proportions that touches the lives of many people just like Rita. It demands our immediate attention and Congress’ immediate action.

May 30, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Saturday, May 28, 2016

"To Save Our Justice System, End Racial Bias in Jury Selection"

The title of this post is the headline of this New York Times op-ed authored by one of my favorite former bosses, US Court of Appeals for the Second Circuit Judge Jon O. Newman. Like all writing by Judge Newman, this piece is astute and sensible, and it provides a sound and simple recommendation forimproving the operation of our modern criminal justice system. Here are excerpts:

The Supreme Court ruled correctly on Monday when it found that Georgia prosecutors in Foster v. Chatman had illegally barred African-Americans from serving as jurors in a death penalty trial. But the decision does not end racial discrimination in jury selection.  The best way to do that is to limit the number of jurors that lawyers can strike for no reason at all to just one or two per side.

Both prosecutors and defense lawyers can exclude any number of prospective jurors for legitimate reasons — if a juror knows the defendant, has formed an opinion about the case or is unlikely to be impartial. But lawyers can also dismiss several more potential jurors simply because they do not want them — without explaining why. In federal felony trials, the prosecutor has six peremptory challenges and the defense usually has 10.  In federal death penalty cases, each side has 20.  State numbers vary.

In the Foster case, which dates from the 1980s, the prosecutors eliminated people simply because of race.  Timothy Foster, a black man, stood accused of killing an elderly white woman when he was a teenager.  The prosecutors worked conscientiously to exclude the potential black jurors; they marked their names with a “B” and highlighted each black juror’s name in green on four different copies of the juror list. Those jurors were ranked against one another in case, one member of the prosecutorial team said, “it comes down to having to pick one of the black jurors.”  The plan worked, and an all-white jury sentenced Mr. Foster to death.

This was an egregious case, but not a unique one. Far too often in criminal or death penalty cases that involve a black defendant, prosecutors try to exclude black jurors because they believe it will increase the chances of a conviction. In Houston County, Ala., prosecutors struck 80 percent of qualified black jurors from death penalty cases from 2005 to 2009....

The Advisory Committee on Rules of Criminal Procedure, which is part of the Judicial Conference, the federal court system’s principal policy-making body, should propose sharply reducing the number of jury strikes allowed in federal trials. Several Supreme Court justices have suggested as much. Justice Thurgood Marshall endorsed such a reform in his concurring opinion in the 1986 case Batson v. Kentucky: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process.  That goal can be accomplished only by eliminating peremptory challenges entirely.” In 2005, Justice Stephen G. Breyer also urged reconsideration of the peremptory challenge system.

Total abolition of peremptory challenges would most likely face vigorous opposition from prosecutors and some defense attorneys. And it’s unlikely to be achieved, either for federal or state criminal trials.  But reducing the number will do significant good.  In 1879, the Supreme Court declared that to single out African-Americans for removal from jury service “is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.”  All-white juries will continue to be a blight on the American system of criminal justice until federal and state rule makers significantly reduce the number of peremptory challenges.

Prior recent related posts:

May 28, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Two notable new article examing capital prosecutions of intellectually disabled defendants

Michael Perlin, whose interesting scholarship on mental health criminal always includes an extra-fun Bob Dylan reference in the title, has these two notable new articles on capital prosecutions now available via SSRN:

At the risk of being caught up in an idiot wind, I may wait until after the long weekend to read these pieces in order to avoid getting tangled up in blue.

May 28, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, May 27, 2016

Split Iowa Supreme Court decides any and every "sentence of life without the possibility of parole for a juvenile offender violates article I, section 17 of the Iowa Constitution"

As noted in prior posts here and here, yesterday brought notable post-Miller juve sentencing decisions from state supreme courts in California and Florida. But today the Iowa Supreme Court has one-upped its colleagues via its post-Miller ruling in Iowa v. Sweet, No. 14–0455 (Iowa May 27, 2016) (available here).  The lengthy majority opinon in Sweet wraps up this way:

In sum, we conclude that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders’ prospects for rehabilitation because they lack adequate predictive information supporting such a decision. The parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available. See Seats, 865 N.W.2d at 557 (“Even if the judge sentences the juvenile to life in prison with parole, it does not mean the parole board will release the juvenile from prison.”); see also State v. Andrews, 329 S.W.3d 369, 379 (Mo. 2010) (Wolff, J., dissenting) (noting an offender sentenced to life with parole may nonetheless “spend the rest of his life in prison if the parole board does not determine that he is suitable for parole release”).  Steinberg has poignantly made this very point:

It’s not only adolescents’ immature judgment that demands that we treat them differently when they break the law.  If the plasticity of the adolescent brain makes juveniles more amenable to rehabilitation, this argues against mandatory life sentences that don’t allow courts to consider whether an impulsive or impressionable teenager might grow into a law-abiding adult who can control his impulses and stand up to peer pressure.  Of course, a teenager who kills another person deliberately should be punished — no one is arguing otherwise.  But should he be incarcerated for the rest of his life, with no chance to prove that he has matured?

Steinberg at 188. Thus, juvenile offenders’ prospects for rehabilitation augur forcefully against speculative, up-front determinations of opportunities for parole and leads inexorably to the categorical elimination of life-without-the-possibility-of-parole sentences for juvenile offenders.

For the above reasons, we adopt a categorical rule that juvenile offenders may not be sentenced to life without the possibility of parole under article I, section 17 of the Iowa Constitution. As a result, the sentence of the district court in this case is vacated and the matter remanded to the district court for resentencing.

Nothing in this opinion, of course, suggests that a juvenile offender is entitled to parole.  The State is not required to make such a guarantee, and those who over time show irredeemable corruption will no doubt spend their lives in prison.  The determination of irredeemable corruption, however, must be made when the information is available to make that determination and not at a time when the juvenile character is a work in progress.

A lengthy dissent authored by Justice Mansfield gets started this way:

Recognizing that our legislature and our trial courts have the primary role in determining criminal sentences, I would affirm the life-without-parole (LWOP) sentence for this seventeen year old who murdered his grandparents who had raised him.

Today, the court breaks new ground in finding that the Iowa Constitution categorically forbids such sentences.  As I will explain below, I believe the justification offered by the majority for its ruling is insufficient.  More is needed before we strike down a legislatively authorized sentence — especially one the general assembly reauthorized by large majorities in both houses just last year.

May 27, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Ohio legislature passes medical marijuana reform and other highlights from Marijuana Law, Policy & Reform

Among this past week's reform highlights from Marijuana Law, Policy & Reform is the big local news for me as the Ohio General Assembly finally finalized a medical marijuana bill to send to Gov John Kasich.  But, as these links reveal, there were notable stories emerging from other jurisdictions as well:

May 27, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

"Killing Dylann Roof: A year after Obama saluted the families for their spirit of forgiveness, his administration seeks the death penalty for the Charleston shooter."

The title of this post is the headline of this intriguing Atlantic commentary authored by Ta-Nehisi Coates. I urge everyone, both those for and against capital punishment, to read he entire piece. Here are excerpts:

On Tuesday, Attorney General Loretta Lynch announced she would seek the death penalty for Dylann Roof. It has not been a year since Roof walked into Emanuel African Methodist Episcopal Church and murdered nine black people as they worshipped.  Roof justified this act of terrorism in chillingly familiar language — “You rape our women and you’re taking over our country.”  The public display of forgiveness offered to Roof by the families of the victims elicited bipartisan praise from across the country.  The president saluted the families for “an expression of faith that is unimaginable but that reflects the goodness of the American people.” How strange it is to see that same administration, and these good people, who once saluted the forgiveness of Roof, presently endorse his killing....

There are defensible reasons why the American state — or any state — would find [the nonviolent Martin Luther] King’s ethic hard to live up to. States are violent. The very establishment of government, the attempt to safeguard a group of people deemed citizens or subjects, is always violent.  In America, a president is the commander in chief.  Anyone who voted for Obama necessarily voted for violence.  Furthermore, there is indisputable evidence that violence sometimes works.  The greatest affirmation of civil rights in American history — emancipation — was accomplished at gun-point.

But one has to be careful here not to fall into the trap of lionizing killing, of pride in the act of destroying people even for just ends.  Moreover, even if nonviolence isn’t always the answer, King reminds us to work for a world where it is. Part of that work is recognizing when our government can credibly endorse King’s example.  Sparing the life of Dylann Roof would be such an instance — one more credible than the usual sanctimonious homilies delivered in his name.  If the families of Roof's victims can find the grace of forgiveness within themselves; if the president can praise them for it; if the public can be awed by it — then why can't the Department of Justice act in the spirit of that grace and resist the impulse to kill?

Perhaps because some part of us believes in nonviolence not as an ideal worth striving for, but as a fairy tale passed on to the politically weak.  The past two years have seen countless invocations of nonviolence to shame unruly protestors into order. Such invocations are rarely made to shame police officers who choke men to death over cigarettes and are sent back out onto the beat.  And the same political officials will stand up next January and praise King even as they act contrary to his words.  “Capital punishment is against the best judgment of modern criminology,” wrote King, “and, above all, against the highest expression of love in the nature of God.”

A few prior related posts:

May 27, 2016 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14)

Thursday, May 26, 2016

Split Florida Supreme Court finds technical eligibility for parole insufficient to comply with Miller Eighth Amendment requirements

The Florida Supreme Court today handed down a notable new opinion applying Miller in a case involving a juvenile offender who got a life sentence for a murder back in 1990.  Here is how the opinion in Atwell v. Florida, No. SC14-193 (Fla. May 26, 2016) (available here), gets started:

Angelo Atwell was sixteen years old when, in August 1990, he committed armed robbery and first-degree murder. Under the statute then in effect, Atwell was sentenced for the first-degree murder to a mandatory term of life imprisonment, with the possibility of parole after twenty-five years, and was sentenced to life imprisonment without the possibility of parole for the armed robbery.

As mandated by the existing statutory scheme, Florida’s parole process requires “primary weight” to be given to the “seriousness of the offender’s present offense and the offender’s past criminal record.” See § 947.002, Fla. Stat. (2015). Under this statutory scheme, twenty-five years after Atwell was sentenced, the Commission on Offender Review conducted a parole hearing and set Atwell’s presumptive parole release date, which is the earliest date he may be released from prison as determined by objective parole guidelines, for the year 2130—one hundred and forty years after the crime and far exceeding Atwell’s life expectancy. Thus, while technically Atwell is parole-eligible, it is a virtual certainty that Atwell will spend the rest of his life in prison.

The issue we consider is whether Atwell’s sentence for first-degree murder is constitutional, in light of the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), which held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” We conclude that Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional. 

May 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

This breaking news just in: the Connecticut death penalty is still dead

Download (2)I am demonstrating my age (and my affinity for Saturday Night Live) when I thought of one of the first famous SNL catch-phrases upon seeing this new local headline from Connecticut: "State Supreme Court Upholds Abolishment Of Death Penalty, Including For Death-Row Inmates."  Here are the serious details of a serious decision that prompted my not-so-serious reaction:

The Connecticut Supreme Court has upheld its decision to abolish the state's death penalty, including for inmates on death row. The 5-2 ruling, released Thursday, upholds the justices 4-3 decision last August that the death penalty was unconstitutional for all — including 11 convicts on Connecticut's death row — following the legislature's abolition three years ago of capital punishment in Connecticut. Lawmakers made the law prospective, meaning it applied only to new cases and kept in place the death sentences already imposed on those facing execution before the bill was passed.

Attorneys for those on death row challenged the law, saying it violated the condemned inmates' constitutional rights. The ruling last August came in the case of Eduardo Santiago, who had faced the death penalty for the December 2000 killing of Joseph Niwinski in West Hartford. Santiago has been resentenced to life in prison without the possibility of release.  In the August ruling, the justices in the majority wrote that executing an inmate "would violate the state constitutional prohibition against cruel and unusual punishment" and that the death penalty "no longer comports with contemporary standards of decency."

Chief Justice Chase T. Rogers, who joined with Justice Carmen E. Espinosa and Justice Peter T. Zarella in the August dissents, voted this time with the majority, saying she felt bound to the doctrine of "stare decisis," a Latin term meaning "stand by things decided."

"Just as my personal beliefs cannot drive my decision-making, I feel bound by the doctrine of stare decisis in this case for one simple reason — my respect for the rule of law," Rogers wrote. "To reverse an important constitutional issue within a period of less than one year solely because of a change in justices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court's integrity and the rule of law in the state of Connecticut."

Rogers said, "stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty."

In separate dissents, Zarella and Espinosa rejected the assertion that respect for precedent mandated Thursday's ruling, saying that doctrine should never be used to enshrine a flawed decision. And they pointedly noted that Rogers herself had blasted the original Santiago decision as "a house of cards, falling under the slightest breath of scrutiny." They also criticized Justice Richard A. Robinson, who came on the court after the Santiago decision and voted with the majority, along with justices Richard N. Palmer, Dennis G. Eveleigh and Andrew J. McDonald. Like Rogers, Robinson cited the importance of respecting precedent.

"I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error," Zarella wrote....

Gov. Dannel P. Malloy, in a statement released Thursday afternoon, said the ruling "reaffirms what the court has already said: those currently serving on death row will serve the rest of their life in prison with no possibility of ever obtaining freedom."  Malloy noted that Connecticut in the last half century has executed only two inmates, both of whom volunteered for death....

Chief State's Attorney Kevin T. Kane said his office respects the decision and would "move forward" to re-sentence the individuals currently on death row to a sentence of life in prison without the possibility of release.  "The Division of Criminal Justice and I extend our deepest sympathy and condolences to the victims of these crimes and to their families," Kane said in a statement.  "I also wish to express my appreciation to the dedicated professionals in the Division of Criminal Justice who have devoted so much of themselves throughout this process."

All the opinions in this new case can be found right now at this Connecticut Supreme Court link.

May 26, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Creating Meaningful Opportunities for Release: Graham, Miller and California's Youth Offender Parole Hearings"

The title of this post is the title of this notable new paper authored by Beth Caldwell now available via SSRN. Here is the abstract:

This article presents findings from a study on the implementation of California’s new Youth Offender Parole Hearing law, which aims to provide juvenile offenders with meaningful opportunities to obtain release from adult prison.  It contributes to the debate surrounding how to apply the “meaningful opportunity to obtain release” standard that the Supreme Court deliberately left open to interpretation in Graham v. Florida and, to some extent, in Miller v. Alabama. The Supreme Court’s recent opinion in Montgomery v. Louisiana reinforces the idea that juveniles who demonstrate that they are capable of change are entitled to release.

The data contained in this Article was obtained by reviewing the transcripts of the first 107 Youth Offender Parole Hearings; this sample represents all but two of the Youth Offender Parole Hearings that took place between January 2014 and June 2014.  In the first six months of the law’s implementation, juvenile offenders were found suitable for parole at younger ages than the general population.  Further, youth offenders appeared to have a more realistic chance of being released under the new law. This reform is, at the very least, an important step towards offering juvenile offenders more meaningful opportunities to earn their release from prison.  At the same time, it does not go far enough.  After discussing some limitations of the law, this Article concludes by recommending guidelines that would provide youth offenders more meaningful opportunities for release in parole hearings. 

May 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Making my way to DC for U.S. Chamber/NACDL Symposium: "The Enforcement Maze: Over-Criminalizing American Enterprise"

ILR. NACDL Banner-HHighlighting the many ironies of modern travel, this morning I got to the airport extra early for a flight to DCA because of all the talk about TSA under-staffing and long security lines. But after breezing through securing in a matter of minutes, I am now stuck in the CMH terminal delayed hours awaiting a working plane to ferry me to our nation's capital to participate in a symposium on overcriminalization. I am bummed about the delay because I was looking forward to hearing the morning panels at this inside-the-Beltway event to which I am heading: The U.S. Chamber Institute for Legal Reform (ILR) and the National Association of Criminal Defense Lawyers (NACDL) Law & Policy Symposium on "The Enforcement Maze: Over-Criminalizing American Enterprise."

Undaunted, I remain upbeat because I am cautiously optimistic I will still make it to DC in time to hear fellow lawprof Lucian Dervan present a "TED Talk-inspired" presentation on "The Symbiotic Relationship Between Overcriminalization and Plea Bargaining." I am also looking forward to an afternoon of highlights at this event that include a luncheon keynote by David Ogden, former Deputy Attorney General of the United States, as well as closing remarks by Senator Orrin Hatch.

For those revved up by these topics, here is the description of my afternoon panel:

The Public Policy Consequences and the Road to Recovery: This panel will address the erosion of respect for criminal law, costs incurred by taxpayers, over-incarceration, and the squashing of business ingenuity and growth, and will explore solutions to these problems.

I expect to talk briefly about the importance of mens rea considerations at the sentencing of persons convicted of business-related crimes (and I may do a future post or two on this topic). But, in light of the panel's description, I would welcome reader comments on what I should make sure gets covered my someone on my panel.

May 26, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, May 25, 2016

Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"

As reported in this new New York Times piece, a "federal judge in Brooklyn, in an extraordinary opinion that calls for courts to pay closer attention to the impact of felony convictions on people’s lives, sentenced a young woman in a drug case to probation rather than prison, saying on Wednesday that the collateral consequences she would face as a felon were punishment enough." Here is more about the opinon:

The judge, Frederic Block of Federal District Court, said that the broad range of such collateral consequences served no “useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” The judge noted that there were nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities or disadvantages on convicted felons.

Such consequences — the denial of government benefits, ineligibility for public housing, suspension of student loans, revocation or suspension of driver’s licenses — can have devastating effects, he wrote, adding that they may also be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.”

The issue of collateral consequences and sentencing has been considered by other courts, but Judge Block’s 42-page opinion appears to be one of the most detailed examinations yet, combined with his call for reform. He noted that the inability to obtain housing and employment stemming from a conviction often results in “further disastrous consequences, such as losing child custody or going homeless,” and leads to many ex-convicts “becoming recidivists and restarting the criminal cycle.”

The judge’s ruling does not create a binding legal precedent for other courts, but is likely to further contribute to the national debate about the criminal justice system. Gabriel J. Chin, a professor at the University of California Davis School of Law, called the opinion “groundbreaking.”

“This is by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing, said Professor Chin, who has written extensively on the subject and whose work the judge cited in the opinion. “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives,” he said.

The sentencing opinion was issued in the case of Chevelle Nesbeth, who was arrested last year at Kennedy International Airport after a search of her luggage turned up 600 grams of cocaine, court records show. A jury, rejecting her claim that she had been given the suitcases by friends and was unaware that they contained drugs, convicted her of importation of cocaine and possession of cocaine with intent to distribute, the judge wrote. She faced a sentence within 33 to 41 months under the federal advisory guidelines.

But in a hearing on Tuesday, Judge Block sentenced Ms. Nesbeth to one year of probation, six months of home confinement and 100 hours of community service.

Judge Block's full 42-page opinion in US v. Nesbeth, No. 15-cr-18 (E.D.N.Y May 24, 2016), can be downloaded below. Here are a few passages from its introduction:

Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon. I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.

I am writing this opinion because from my research and ex:erience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers - both prosecutors and defense counsel - as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant.' And I believe that judges should consider such consequences in rendering a lawful sentence.

There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many - under both federal and state law - attach automatically...

Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in tum: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth's Collateral Consequences and the Balancing of all§ 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.

Download X1x43 Nesbeth opinion

May 25, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12)

"Many serving sentences for marijuana offenses deserve clemency"

The title of this post is the headline of this recent San Francisco Chronicle commentary authored by Alex Contreras, a former federal inmate serving a 40-year sentence for drug and gun charges who received clemency from President Obama in December 2015.  Here is the text:

More than 10,000 clemency applicants wake up every day in a federal prison, awaiting an answer from President Obama on whether their lengthy prison sentence will come to an end. Most of them will be crushed when they are eventually denied.  There are a few, however, who will realize the unlikely and overwhelming joy of finally being released. I was one of those rare few whose name was on the list of Obama’s recent clemency grants.  And while I was excited to finally be going home — and extremely grateful to the president — I was also perplexed by those who weren’t on the list.

In speaking about criminal justice reform, Obama has highlighted the injustice of incarcerating marijuana offenders for “long stretches,” and has described marijuana as being “less harmful than alcohol” and a “vice,” not unlike cigarette smoking. He also instructed his Justice Department to not prosecute medical or recreational marijuana sellers who are operating under state law.  But his pool of clemency recipients does not reflect these views.

Out of the 306 clemency grants, less than 3 percent were marijuana offenders, and not one of them was a medical marijuana provider, despite being the most deserving given that they were following state law and the Obama administration is no longer prosecuting them. Some of them are even serving decades in prison.

One such inmate is Ricardo Montes, a Latino serving a harsh mandatory 20-year sentence for operating a medical marijuana dispensary in Modesto under California law.  Montes and his co-defendant received the longest sentences ever doled out to any medical marijuana provider, because — during the aggressive George W. Bush administration — they were charged under a fearsome mandatory minimum statue designed for drug kingpins and dangerous cartels.

Individuals like Montes are even more deserving of clemency than I was.  Yet I fear that men such as Montes will be left to serve the remainder of their lengthy prison terms, while others reap the rewards of the change in the legal landscape of our nation’s marijuana policies. I hope that Obama’s remaining clemency grants will reflect his sensible views regarding marijuana, ensuring that our criminal justice system “keeps its basic promise of equal treatment for all.”

May 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Making a friendly pitch for SCOTUS to consider constitutional limits on extreme judicial sentencing increase based on uncharged homicide

Regular readers know that I have long been troubled by significant sentence increases by judges based on so-called acquitted conduct, and that I have filed a number of federal appellate briefs articulating my concerns. Building on some of that prior work, I recently had a chance to work on an amicus brief in support of certiorari in Hebert v. US, a case out of the Fifth Circuit involving an extreme sentence increase based on uncharged conduct. The full amicus (which the fine folks at the Jones Day in DC made so fine) can be downloaded below, and here are excerpts from its start providing context and key arguments:

It is difficult to imagine a starker violation of the Sixth Amendment and due process than what transpired below. Mr. Hebert pleaded guilty to a $16,000 fraud that carried a guidelines range topping out at 5 years.  After persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime, the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed. The Government then asked the district court to find it was more likely than not that Mr. Hebert committed this un-charged, non-admitted, never-convicted, non-federal crime. Then, on the basis of that judicial determination, the district court gave Mr. Hebert a 92-year sentence — a sentence the Government has conceded and the Fifth Circuit recognized “would have been substantively unreasonable under the post-Booker sentencing regime absent a judicial finding of murder,” Pet.App.22a — again, a crime with which Mr. Hebert has never even been charged.

Because Mr. Hebert has never been charged with — much less convicted of — murder, he remains entirely innocent of that crime. If the Government wishes to convict Mr. Hebert of murder, it is welcome to try.  But what it cannot do is use Mr. Hebert’s confession to lesser crimes as the springboard for de facto convicting him of a far more serious crime in a judicial proceeding with no jury, the civil standard of proof, and none of the criminal justice system’s fundamental rules and procedures....

There are at least two constitutional provisions that, under this Court’s well-established jurisprudence, forbid this inverted regime.  First, this Court has made clear that a criminal defendant has a Sixth Amendment “right to have a jury find the facts behind his punishment.” Hurst v. Florida, 136 S. Ct. 616, 621 (2016).  That right reflects the vital role of the jury as the “circuitbreaker in the State’s machinery of justice” — a role that cannot be “relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306–07 (2004).  The Sixth Amendment right to a jury trial is a constitutional protection of “surpassing importance,” Apprendi, 530 U.S. at 476, yet the decision below makes a mockery of it....

Second, this Court has long recognized that due process forbids grossly unfair procedures when a person’s liberty is at stake. Specifically, this Court has indicated that (1) judges are sometimes limited from imposing distinct new punishments based on “a new finding of fact that was not an ingredient of the offense charged,” Specht v. Patterson, 386 U.S. 605, 608 (1967) (citation omitted); (2) the “safeguards of due process” in criminal cases are “concerned with substance rather than [any] kind of formalism,” Mullaney v. Wilbur, 421 U.S. 684, 698–99 (1975); and (3) constitutional concerns are raised whenever sentencing findings become “a tail which wags the dog of the substantive offense,” or when the government restructures criminal prosecutions “to ‘evade’ the commands” of the Constitution. McMillan v. Pennsylvania, 477 U.S. 79, 88–89 (1986).

The simple principle that unifies these decisions is fatal to the legal rule embraced below: Due process forbids prosecutors from manipulating the criminal justice system to evade its core protections.  Applied here, that principle barred prosecutors from waylaying Mr. Hebert at sentencing with allegations of a far more serious crime for which he has never been indicted or convicted — allegations that depend, moreover, on evidence which the prosecutors were apparently unwilling to subject to the crucible of a criminal trial or test against the burden of proof they must carry there.  Due process demands more.

Download Berman Amicus in Support of Cert in Hebert

May 25, 2016 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

DOJ Inspector General report details (impressively?) rare cases of untimely release of federal prisoners

This New York Times article about a new DOJ report carries a headline that at first led me to wonder what is heck is going on with the federal Bureau of Prisons: "Thousands Held in Federal Prisons for Too Long, Report Finds."  But then, upon reading quickly the executive summary of the DOJ Inspector General's report reference in the headline, I am actually impressed with how well BOP seems to be doing a key part of its job. This full DOJ Report is titled "Review of the Federal Bureau of Prisons’ Untimely Releases of Inmates," and here is its first two paragraphs:

Following news reports that the Federal Bureau of Prisons (BOP) had confined an inmate for 13 months past his correct release date, the Department of Justice (Department) Office of the Inspector General (OIG) initiated an examination of the BOP’s process for ensuring federal inmates are released on their correct release dates and the incidences of releases before or after the correct release date due to staff error between 2009 and 2014.  We found that of the 461,966 inmate releases between 2009 and 2014, the BOP categorized 157 as untimely due to staff error.  We also learned that the BOP classifies a far greater number — 4,183 — as untimely for other reasons.

According to the BOP, the vast majority of non-staff error “untimely” releases were due to situations that are beyond its control, such as amended sentences that result in shorter sentences than the time an inmate had already served. Also, data and information we reviewed indicates that other entities inside and outside the Department may sometimes contribute to untimely releases.  Although BOP officials told us that it was highly unlikely that staff error on the part of a Department entity contributed to any of the 4,183 cases, they could not rule out the possibility and we found that the BOP does not always have complete information about the circumstances of untimely releases to which other entities contribute.  We therefore concluded that the Department should work with all relevant entities, both within and outside the Department, to review the full range of possible reasons for untimely releases and how to address those that are in any way preventable.

While I know lots of folks have lots of sound reasons to criticize BOP, I have a very hard time knocking the agency too much for staff efforts which impacted only roughly 1 out of every 3000 releases.  Of course, as the DOJ report explains, every reasonable effort should be made to avoid BOP staff errors leading to untimely releases.  But I think we should general celevrate any government agency with a 99.93% accuracy rate in one of its core responsibilities.

May 25, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Tuesday, May 24, 2016

Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof

Almost a year after Dylann Roof committed one of the worst mass murder hate crimes in modern US history, federal prosecutors have offically decided to make his federal prosecution a capital one.  Here are excerpts from this CNN report about this (too-long-in-development) decision:

Federal prosecutors will seek the death penalty for Dylann Roof, who is accused of killing nine people at a historic African-American church in Charleston, South Carolina, in July 2015.

Roof, who is white, is charged with 33 federal offenses, including hate crime charges for allegedly targeting his victims on the basis of their race and religion. A judge entered a not guilty plea on his behalf in July 2015. "The nature of the alleged crime and the resulting harm compelled this decision," Attorney General Loretta Lynch said.

Roof, 22, is accused of shooting participants of a Bible study class at Emanuel African Methodist Episcopal Church, known as Mother Emanuel, in downtown Charleston on June 17, 2015. Among the victims was the church's pastor, the Rev. Clementa Pinckney, who also was a state senator.

South Carolina has charged Roof with murder. Charleston County Solicitor Scarlett Wilson said last year that she will seek the death penalty in the state's case, which is scheduled to go to trial in January.

There is no date yet for his federal trial. Attempts to reach Roof's attorneys for comment were not immediately successful.

Roof, a high school dropout not known for violence, was captured in North Carolina the day after the shootings. He confessed in interviews with the Charleston police and FBI, two law enforcement officials told CNN. He also told investigators he wanted to start a race war, one of those officials said.

Three federal inmates have been executed in the United States since the federal death penalty was reinstated in 1988 after a 16-year moratorium. They were Timothy McVeigh, Juan Raul Garza and Louis Jones. Boston Marathon bomber Dzhokhar Tsarnaev is one of the most recent people to be sentenced to death by a federal judge. There are about 60 people on federal death row.

I fully share the Attorney General's view that the "nature of the alleged crime and the resulting harm compelled this decision," and that is why I have been critical in prior posts about it taking so long to make this decision. A well-functioning criminal justice system surely ought to be able to prosecute and sentence a mass murderer in the span of a year in a case like this one in which there is no doubt about guilt. But, remarkably, it seems it now takes a year just to decide whether the death penalty should be even sought. Sigh.

A few prior related posts:

May 24, 2016 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Reviewing the state and future of lethal injection as execution method

Lincoln Caplan has this New Yorker piece headlined "The End Of The Open Market For Lethal-Injection Drugs," which provides a useful primer on where matters stand regarding lethal injection as a means carrying out death sentences on condemned murderers. Here are excerpts from the start, middle and end of the lengty piece:

Last week, the global drug company Pfizer announced sweeping new restrictions on the distribution of seven of its products, preventing them from being used to carry out the death penalty. Pfizer came into possession of those products, which include sedatives, paralytics, a pain medication, and a drug used to prevent or treat low levels of potassium in the blood, when it acquired the pharmaceutical company Hospira, in September.  Its decision is an enormously significant one for the death penalty in the United States, and ends a long and chaotic chapter in which governments, drug companies, and activists worldwide have gradually closed the open market for the federally approved drugs that have been used for lethal injections.

Twenty of the thirty-one states with the death penalty on the books now have a formal or informal moratorium on executions, in almost all cases because they have been unable to obtain approved drugs to use in lethal injections. In 2015, there were twenty-eight executions in the U.S., the lowest number since 1994.  This year, there have been fourteen executions so far — six in Texas, five in Georgia, and one each in Alabama, Florida, and Missouri. Prisons in those states can’t buy drugs for lethal injections from American manufacturers.  They can’t import drugs from foreign manufacturers — which, in any case, will not supply them.  In short, their options are severely restricted, which will almost certainly lead to more botched executions.

Texas, Georgia, and Missouri are among the small number of states that have carried out executions using drugs made by compounding pharmacies, which combine, mix, or alter drugs, typically to meet the need of an individual patient — say, by removing an ingredient to which a patient is allergic.  These pharmacies are not required to register with the F.D.A., and the F.D.A. does not approve their products.  They must be licensed by the pharmacy board in the state where they operate, but state oversight has often been scandalously lax.  In February, Oklahoma Attorney General Scott Pruitt said he wants the state to open its own compounding pharmacy, in order to guarantee a supply of the drugs that the state needs for lethal injections. (This despite the fact that no department of corrections could meet a basic requirement for obtaining a drug made by a compounding pharmacy: a medical prescription for an individual patient.)

Oklahoma’s turn toward compounding pharmacies is part of the fallout from Glossip v. Gross, one of the most important death-penalty cases decided by the Supreme Court in the past generation....

The campaign to halt lethal injections as a mode of capital punishment by restricting access to the lethal drugs has not yet ended the death penalty.  But it may very well have accelerated the end game that Breyer invoked in his Glossip dissent.  In the five years between Hospira’s decision to stop making sodium thiopental and Pfizer’s decision to stop supplying drugs for executions, the unsuccessful effort, by one state after another, to carry out lethal injections in a manner that meets standards of fairness and reliability has made it increasingly clear that states cannot constitutionally perform these types of executions.  If they can’t do that, how can the Supreme Court continue to permit capital punishment under the Constitution?  The Court is unlikely to take on an issue this fundamental when it is at the mercy of a polarized Senate and self-important Republican leaders who refuse to confirm the President’s nominee for the Court’s ninth Justice.  But the churn that the campaign has quickened will inevitably give rise to a legal controversy that will force the Justices to face just such a question.

Interestingly, I have since Glossip was decided that the case would prove to be "one of the most important death-penalty cases decided by the Supreme Court in the past generation" only if states viewed the ruling as presenting a unique and new opportunity to move away from lethal injection as an execution method in light of all the drug shortages. Significantly, the Supreme Court has never formally declared any particular execution method unconstitutional, and I thought the Glossip ruling might prompt a number of jurisdictions to see a chance to seriously move forward with a return to firing squads or experimentations with nitrogen gas. But absent any such developments (and absent Justice Breyer finding thre more Justices to join his effort to judicially abolish capital punishment in the US), I have a hard time seeing Glossip as nearly as big practical deal as other recent SCOTUS cases placing limits on capital sentences and procedures like Kennedy and Hurst.

May 24, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Dynamic commentary on SCOTUS work in Foster and related Monday news

A number of bright folks have already had some dynamic takes the Supreme Court's rulings yesterday in the Georgia capital case, Foster v. Chapman.  Organized alphabetically by location of the commentary, here are a few early takes that caught my eye:

The pieces by Epps and Otis are extra-notable because they link into their discussions the SCOTUS Miller remands and the not guilty verdict in a Freddy Gray prosecution, respectively.

UPDATE Scott Greenfield made via Twitter the excellent point that the list above included only "commentaries on Foster from people who don't pick juries & nothing from anyone who does." So, with Scott's help, I am here rounding out my round-up of Foster takes:

May 24, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons

As first reported in this post last month, Gov Terry McAuliffe of Virginia used his executive clemency powers to restore voting rights to more than 200,000 former felons who had been permanently disenfranchised under Virginia's state election laws.  Now, as reported in this Washington Post piece, political opponents are going to court to try to undo this effort to allow more people to participate in democracy.  Here are the details:

Leaders of Virginia’s House and Senate went to the state’s highest court Monday in a bid to reverse Gov. Terry McAuliffe’s sweeping order to restore voting rights to 206,000 felons. Skipping lower courts, they filed a complaint with the Supreme Court of Virginia, contending that McAuliffe (D) exceeded his authority in April when he restored voting rights to felons en masse instead of individually.

The lawsuit — bankrolled by private donors — presents a complex constitutional question with the urgency of presidential election-year politics. Republicans are seeking an expedited review so that reinstated ex-cons who have registered to vote can be stripped from the rolls before November.

Virginia governors have restored felons’ voting rights, but none with anything close to McAuliffe’s scale and speed. “From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only,” said the lawsuit, filed on behalf of House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four other Virginia voters....

The governor says that his move helps former convicts to fully reenter society. Republicans call it a favor to Democratic presidential front-runner Hillary Clinton, McAuliffe’s close friend and political ally, who could benefit from higher numbers of minority voters in the crucial swing state.

McAuliffe blasted the lawsuit, suggesting that Republicans were trying to hold onto a remnant of the Jim Crow era, since African Americans have been disproportionately affected by felon disenfranchisement. One in four African Americans in Virginia had been banned from voting because of laws restricting the rights of those with convictions.

“Today Republicans filed a lawsuit to preserve a policy of disenfranchisement that has been used intentionally to suppress the voices of qualified voters, particularly African Americans, for more than a century,” McAuliffe said in a written statement. “These individuals have served their time and are now living, raising families and paying taxes in our communities — this suit is an effort to continue to treat them as second-class citizens.”...

The lawsuit, filed by Charles J. Cooper, who ran the Office of Legal Counsel under President Ronald Reagan, pushed back against the claim that felon disenfranchisement was rooted in racism. “Governor McAuliffe has falsely suggested that Virginia’s felon disenfranchisement provision was first introduced into the Constitution after the Civil War for the purpose of disenfranchising African-Americans,” the lawsuit says. “But Virginia has prohibited felons from voting since at least 1830 — decades before African-Americans could vote.”...

McAuliffe’s predecessor, Republican Robert F. McDonnell, simplified and sped up the application process for nonviolent offenders. When he was governor, Democrat Timothy M. Kaine, now a U.S. senator, considered a broader action but opted against it on the advice of his senior counsel, Mark Rubin. “A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers,” Rubin wrote in 2010. “And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”

McAuliffe’s order also allows ex-felons to serve on juries, run for public office and apply for restoration of their gun rights. It applies to all ex-felons, including those guilty of violent offenses such as murder and rape — a point emphasized by Republicans. The lawsuit notes that attorneys for a man accused of killing a state police trooper in Dinwiddie County are seeking to have felons whose civil rights were restored added to the pool of eligible jurors for his trial.

The McAuliffe administration notes that felons would still need a judge’s approval before winning back their gun rights and would still be vetted by the jury selection process before being added to such a panel. McAuliffe said that nearly 80 percent of those affected by his order were convicted of nonviolent offenses. Still, Republicans say, that means McAuliffe restored rights to 40,000 violent felons.

Prior related posts:

May 24, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Monday, May 23, 2016

"An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms"

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

Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis.

The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.

May 23, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

SCOTUS has "firm conviction" strikes in Georgia capital case were "motivated in substantial part by discriminatory intent"

The Supreme Court's one criminal justice ruling today comes in Foster v. Chatman, 14-8349 (S. Ct. May 23, 2016) (available here), a capital case out of Georgia involving a Batson claim. Chief Justice Roberts wrote the opinion for the Court, which garnered six votes, and its ruling is reasonably summarized via these passages: 

As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.” 545 U. S. 231, 241 (2005). With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 478, 485....

The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting....

The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.

Justice Alito has an interesting corcurrence about procedures that I will likely discuss in another post. Justice Thomas, in notable contrast, dissents on the merits, and his dissent starts this way:

Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing. In the decades since, Foster has sought to vacate his conviction and death sentence on the ground that prosecutors violated Batson v. Kentucky, 476 U. S. 79 (1986), when they struck all black prospective jurors before his trial.  Time and again, the state courts have rejected that claim.  The trial court twice rejected it, and the Supreme Court of Georgia unequivocally rejected it when Foster directly appealed his conviction and sentence. Foster v. State, 258 Ga. 736, 736, n. 1, 738–739, 374 S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S. 1085 (1989).  A state habeas court rejected it in 2013. App. 175–176, 192–196.  And most recently, the Supreme Court of Georgia again rejected it as lacking “arguable merit,” Ga. Sup. Ct. Rule 36 (2001). See App. 246.

Yet, today — nearly three decades removed from voir dire — the Court rules in Foster’s favor.  It does so without adequately grappling with the possibility that we lack jurisdiction. Moreover, the Court’s ruling on the merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential Batson inquiry.  I respectfully dissent.

May 23, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

SCOTUS concurrences explore what Montgomery GVRs might mean for juve murderers originally sentenced to death

Continuing its recent trend, the short-staffed Supreem Court opted in this new order list not to grant certiorari review in any new cases.  But the list still has some intrigue for sentencing fans thanks to dueling concurrences in a set of cases vacated and remanded for further consideration in light of Montgomery v. Louisiana.  The start of Justice Alito's corcurrence in Adams v. Alabama sets up what makes these cases potentially different from other post-Montgomery GVRs:

The present case differs from most of those in which the Court grants, vacates, and remands for reconsideration in light of Montgomery.  The petitioner in this case — as with a few others now before the Court — was sentenced to death prior to our decision in Roper v. Simmons, 543 U. S. 551 (2005), which held that the Eighth Amendment prohibits a death sentence for a minor. During that pre-Roper period, juries in capital cases were required at the penalty phase to consider “all relevant mitigating evidence,” including “the chronological age of a minor” and a youthful defendant’s “mental and emotional development.” Eddings v. Oklahoma, 455 U. S. 104, 116–117 (1982); see also Roper v. Simmons, supra, at 603 (O’Connor, J., dissenting) (“A defendant’s youth or immaturity is, of course, a paradigmatic example” of the type of mitigating evidence to which a “sentencer in a capital case must be permitted to give full effect”). After Roper, death sentences imposed on prisoners convicted of murders committed as minors were reduced to lesser sentences.

Justice Alito goes on to explain his view that this case history might be of constitutional consequence now:

In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed.  In these cases, the sentencer necessarily rejected the argument that the defendant’s youth and immaturity called for the lesser sentence of life imprisonment without parole.  It can therefore be argued that such a sentencer would surely have felt that the defendant’s youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future.  In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “‘child’” whose crimes reflected “‘unfortunate yet transient immaturity,’” post, at 2 (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand), but was instead one of the rare minors who deserves life without parole.

Justice Stotmayor is not so sure that Justice Alito's view on this matter should carry the day on remand, and she explains why in her concurrence:

Miller v. Alabama, 567 U. S. ___ (2012), did not merely impose an “individualized sentencing requirement”; it imposed a substantive rule that life without parole is only an appropriate punishment for “the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery, 577 U.S., at ___ (slip op., at 17) (internal quotation marks omitted). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op., at 16–17) (same).  There is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected “transient immaturity” or “irreparable corruption.” 577 U.S., at ___–___ (slip op., at 16–17).

The last factfinders to consider petitioners’ youth did so more than 10 — and in most cases more than 20 — years ago. (Petitioners’ post-Roper resentencings were generally automatic.)  Those factfinders did not have the benefit of this Court’s guidance regarding the “diminished culpability of juveniles” and the ways that “penological justifications” apply to juveniles with “lesser force than to adults.”  Roper, 543 U.S., at 571.  As importantly, they did not have the benefit of this Court’s repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption: “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Id., at 570; see also id., at 573; Miller, 567 U. S., at __ (slip op., at 17).

May 23, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

ProPublica takes deep dive to idenitfy statistical biases in risk assessment software

Propublica-logoThe fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools.  The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:

[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom.  In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.

Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.

In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.” 

The sentencing commission did not, however, launch a study of risk scores.  So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.

We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm.   The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.

When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.

We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.

  • The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
  • White defendants were mislabeled as low risk more often than black defendants.

Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)

The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis.  In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”

Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)

May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sunday, May 22, 2016

A bunch of timely and notable new Quick Facts from the US Sentencing Commission

The US Sentencing Commission has its pretty new website up and running, and my only knock on the site is that it is not easy anymore to see exacly what is new on the site.  Fortunately, I somehow discovered that the Commission released two notable new Quick Facts covering federal drug sentencing and mandatory minimum sentences.  (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

In addition to these two new items, the Commission also released two other timely "Quick Facts" last month, and here are links to all four of these reader-friendly USSC products:

May 22, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

"Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department."

Andrew-HanenThe sentence that serves as the title of this post comes from this remarkable 28-page "Memorandum Opinion and Order" entered late last week by US District Judge Andrew Hanen as part of the litigation brought by Texas and others states to challenge President Obama's DAPA and DACA immigration directives.  Though I have not followed this "civil" litigation closely, this order certainly heightens my concerns that in federal criminal cases some DOJ lawyers embrace an "ends-justify-the-means" approach to litigation on behalf of the federal government.  Then again, the (sure-to-be-appealed) requirements that Judge Hanen has for DOJ appearing at the end of this remarkable opinion perhaps should make me more hopeful concerning the future work of DOJ lawyers in all settings:

Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction. The format of this continuing education shall be left to the independent expert lecturer. Self-study or online study will not comply with this Order, but attendance at a recognized, independently sponsored program shall suffice....

The Attorney General of the United States shall appoint a person within the Department to ensure compliance with this Order. That person shall annually file one report with this Court including a list of the Justice Department attorneys stationed in Washington, D.C. who have appeared in any court in the Plaintiff States with a certification (including the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended) that each has attended the above-ordered ethical training course. That certification shall be filed in this cause during the last two weeks of each calendar year it covers. The initial report shall be filed no later than December 31, 2016. This Order shall remain in force for a period of five years (the last report being due December 31, 2021). The decision of the lawyers who apparently determined that these three-year renewals under the 2014 DHS Directive were not covered by the Plaintiff States’ pleadings was clearly unreasonable. The conduct of the lawyers who then covered up this decision was even worse. Therefore, the Attorney General is hereby ordered to report to this Court in sixty (60) days with a comprehensive plan to prevent this unethical conduct from ever occurring again. Specifically, this report should include what steps the Attorney General is taking to ensure that the lawyers of the Justice Department will not, despite what court documents may portend or what a court may order, unilaterally decide what is “material” and “relevant” in a lawsuit and then misrepresent that decision to a Court. Stated differently, the Attorney General is also hereby ordered to report what steps she is taking to ensure that, if Justice Department lawyers make such an internal decision without approval from the applicable court, the Justice Department trial lawyers tell the truth—the entire truth—about those decisions to the court and opposing counsel.

Finally, whatever it is that the Department of Justice Office of Professional Responsibility has been doing, it has not been effective. The Office of Professional Responsibility purports to have as its mission, according to the Department of Justice’s website, the duty to ensure that Department of Justice attorneys “perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency.” Office of Professional Responsibility, DEP’T OF JUSTICE, https://www.justice.gov/opr (last visited May 17, 2016). Its lawyers in this case did not meet the most basic expectations. [FN 18] The Attorney General is hereby ordered to inform this Court within sixty (60) days of what steps she is taking to ensure that the Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.

[FN 18] Other courts have noticed these problems as well. Just in the last six months, both the Fifth Circuit and the Sixth Circuit have questioned the conduct of those employed by the Department of Justice. United States v. Bowen, 799 F.3d 336 (5th Cir. 2015); In re United States, No. 15-3793, 2016 WL 1105077 (6th Cir. Mar. 22, 2016). The Fifth Circuit went further and suggested that not only was there misleading conduct, but the conduct was followed by an inadequate investigation and a cover-up. These are just two of an ever-growing number of opinions that demonstrate the lack of ethical awareness and/or compliance by some at the Department of Justice.

May 22, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Saturday, May 21, 2016

DAG Yates spotlights in commencement speech role of Georgia School of Law in clemency achievement

Today, Deputy Attorney General Sally Yates returned to her alma mater, the University of Georgia School of Law, to deliver this Commencement address. Like all good Commencement addresses, the whole piece is a lovely read. But sentencing fans should be especially interested in these closing comments:

I’d like to close by telling you about a recent intersection between the work of some students graduating here today and my work in Washington.  As some of you may know, the Obama Administration has embarked on a clemency initiative designed to address the disproportionately long sentences given to lower-level, non-violent drug offenders who were sentenced under outdated drug laws.  As Deputy Attorney General, I am charged with making a recommendation to President Obama on each petition. One such recent clemency petition was prepared by two of today’s graduates. These students participated in the representation of a man named Steven Boyd.  In 1998, Mr. Boyd was convicted of selling crack and sentenced to life in prison. He had absolutely no history of violence and other than a few small time drug deals, no other criminal history. Yet the harsh mandatory minimum statutes in effect at the time mandated a life sentence.  That’s life with no possibility of parole. The students prepared Mr. Boyd’s petition for clemency and submitted it to the Justice Department.  That petition made its way to my desk and then on to the White House. And just three weeks ago, the president granted Mr. Boyd’s clemency petition. Mr. Boyd served 18 years and paid his debt to society. As a result of your classmates’ hard work and their commitment to their duty as lawyers, Mr. Boyd will be a free man. Your classmates unlocked justice for Steven Boyd.

Each and every one of you has both the capacity and the obligation, in the words of Attorney General Kennedy, to breathe meaning and force into the pursuit of justice.  I hope that you will seize opportunities to right wrongs large and small, that you will stand up for the voiceless and that you will uphold the promise of our country. I hope that you will use the key that you are about to receive to unlock justice.

May 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Despite a quarter-century being "tough," Hillary Clinton still attacked by Donald Trump as soft-on-violent-crime

As regular readers surely know, the "Clinton record" on crime and punishment issues has many elements and nuances.  See, e.g., this post from last month titled "The many challenges of a fully nuanced understanding of the Clintons, crime, punishment and the 1994 Crime Bill."  That said, one can still generally summarize the Clintons in general, and Hillary Clinton in particular, as having been significantly "tougher" than nearly all other Democrats and even tougher than a great many GOP elected officials over the last quarter century on a long list of sentencing issues ranging from the death penalty to mass incarceration to juvenile punishments to federal crack sentencing.

But Donald Trump has used the 2016 election season to demostrate time and time again that a lengthy past record can matter a heck of a lot less than a catchphrase and fiery rhetoric, and thus I was not surprised to see this New York Times headline emerge after Trump's speech yesterday to the NRA: "Donald Trump Tells N.R.A. Hillary Clinton Wants to Let Violent Criminals Go Free." Here is the context and basis for this headline:

“Crooked Hillary Clinton is the most anti-gun, anti-Second Amendment candidate ever to run for office,” he said. Mrs. Clinton has called for tightened restrictions on guns, but not for abolishing the right to own them.

Mr. Trump, whose record of sexist remarks, among other things, has left him at a potentially crippling disadvantage among female voters, polls show, appealed directly to women in his speech, imbuing his defense of gun rights with an undercurrent of fear.

“In trying to overturn the Second Amendment, Hillary Clinton is telling everyone — and every woman living in a dangerous community — that she doesn’t have the right to defend herself,” Mr. Trump said. “So you have a woman living in a community, a rough community, a bad community — sorry, you can’t defend yourself.”

If Mr. Trump’s comments seemed reminiscent of an era when crime rates were far higher — the Willie Horton ads attacking Michael S. Dukakis, the Democratic nominee, in the 1988 presidential race came to mind — they also appeared somewhat at odds with the broad bipartisan consensus on the need to reduce incarceration rates and prison populations: Mr. Trump sought to frighten voters about the idea of criminals being released from prison.

He said Mrs. Clinton’s agenda was “to release the violent criminals from jail,” freeing them to roam the streets and put “innocent Americans at risk.” He even tried out a new epithet for Mrs. Clinton: “heartless Hillary.”

I consider to be Donald Trump to be an especially shrewd political figure because he seems to have stronger instincts than a number of other GOP figures as to how best to refine the rhetorical packaging of social issues in ways that can energize the GOP base without unduly locking himself into positions from which he can effectively pivot when seeking to appeal to more moderate and independent voters. Talking about women needing the Second Amendment as a means to have access to guns for self-defense in urban areas shows off his political deftness, as does his eagerness to assert (without any firm basis) that Hillary Clinton wants to release "violent criminals."  By including the term "violent" here, Trump will still be able to eventually express support for some "non-violent" sentencing reforms.

(For the record, I expect that in an effort to make nice with various members of the GOP estabishment in Congress, Trump will at some point in the next few months express some support for some modest federal drug sentencing, civil forfeiture, and mens rea reforms.  In the wake of this NRA speech, I would expect Trump, aided by crime-and-punishment-focused folks on his team like Senator Jeff Session and Chris Christie, to eventually say the federal government can and should follow the lead of reform-oriented southern states like Texas and Georgia, but do so only after we take steps to address illegal immigration and eliminate federal gun restrictions (and perhaps ramp up the federal death penalty).  In this context, I find notable this recent Washington Examiner commentary authored by Grover Norquist and Adam Brandon which carries the headline "Congress' new bills show how conservatives are still tough on crime."  This headline suggests that conservatives are coming to see that they can and likely need to preserve their "tough-on-crime" brand as part of efforts to promote sentencing reforms.)

A few prior related posts:

May 21, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Friday, May 20, 2016

Suggesting we suffer from "under-incarceration," Senator Cotton calls federal sentencing reform "dead in this year’s Congress"

As reported in this Politico article, headlined "Sen. Tom Cotton: U.S. has 'under-incarceration problem'," at least one significant opponent of federal sentencing reform is already claiming victory in his efforts to preclude any legislative changes this year to any severe federal statutory mandatory minimums.  Here are the basics via Politico:

Sen. Tom Cotton on Thursday slammed his colleagues' efforts to pass sweeping criminal justice reforms, saying the United States is actually suffering from an "under-incarceration problem."

Cotton, who has been an outspoken critic of the bill in Congress that would reduce mandatory minimum sentences, smacked down what he called "baseless" arguments that there are too many offenders locked up for relatively small crimes, that incarceration is too costly, or that "we should show more empathy toward those caught up in the criminal-justice system."

"Take a look at the facts. First, the claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact: for the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed," Cotton said during a speech at The Hudson Institute, according to his prepared remarks. "Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem."

Expanding upon his remarks during a question-and-answer session, Cotton said releasing felons under reduced sentences serves only to destabilize the communities in which they are released.  “I saw this in Baghdad. We’ve seen it again in Afghanistan," recalled Cotton, who served in the Army during both wars.  "Security has to come first, whether you’re in a war zone or whether you’re in the United States of America.”  Those advocating for criminal justice reform through such measures appear to have forgotten the high-crime days of the 1980s, Cotton remarked, noting that the federal prison population is declining....

"I believe the criminal-leniency bill in the Senate is dead in this year’s Congress. And it should remain so if future versions allow for the release of violent felons from prison," he went on to say. "I will, though, happily work with my colleagues on true criminal-justice reform — to ensure prisons aren’t anarchic jungles that endanger both inmates and corrections officers, to promote rehabilitation and reintegration for those who seek it, and to stop the over-criminalization of private conduct under federal law.  But I will continue to oppose any effort to give leniency to dangerous felons who prey on our communities."

Based on these comments from Senator Cotton (which can be read/seen via this link), I am now growing ever more inclined to agree with Senator Cotton's suggestion that a significant sentencing reform bill will not get through Congress before the 2016 election. Despite efforts to tweak the SRCA to appease some conservative critics, the most vocal opponents of the bill, Senators Cotton and Session, remain vocal in their opposition. In addition, as reported here, Senator Marco Rubio has recently expressed opposition to the SRCA. Perhaps most critically, I have yet to see anyone make a truly forceful political argument that any of the most critical current GOP leaders (namely Donald Trump, Mitch McConnell or Paul Ryan) ought to see great political benefits from now starting to aggressively champion federal statutory sentencing reform efforts.

That all said, I think some of the political calculations here remain fluid. It seems to me possible (though not likely) that the White House and/or leading Democrats might relent on opposition to mens rea reform, which could perhaps jump-start the stalled reform bills in the House of Representatives. Or maybe the even unpredictable Donald Trump will see some poll numbers suggesting he could improve his image with younger and minority voters by claiming he is better than the Clintons on criminal justice reform. And, not to be completely overlooked, it seems to me quite possible that lots of folks uncertain about the current national political mood on crime and punishment would feel comfortable moving forward on reforms during the lame duck period after the Nov 2016 elections.

All those speculations aside, I view Senator Cotton's latest comments as still further confirmation of my own long-standing fear that it continues to be much easier for all sorts of federal political actors to talk a lot about sentencing reform than to actually convert all the sentencing buzzing into actual federal statutory reforms. 

A few 2016 related posts:

May 20, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Does anyone think former Subway pitchman Jared Fogle has any real chance to have his long federal sentence reversed as unreasonable?

The question in the title of this post is prompted by this local story discussing the high-profile sentencing appeal being heard today by the Seventh Circuit.  Here are the basic details:

Former Subway pitchman Jared Fogle is asking a federal appeals court judge to shorten his nearly 16-year prison sentence. A hearing on Fogle's appeal, which is scheduled this morning in the U.S. 7th Circuit Court of Appeals in Chicago, comes about six months after U.S. District Judge Tanya Walton Pratt sentenced Fogle to 15 years and eight months in federal prison.

Fogle argued that his sentence was unreasonable and that Pratt abused her discretion when she went beyond the sentence that federal prosecutors had recommended as part of a plea agreement.

The one-time face of Subway sandwiches pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. Prosecutors recommended a maximum sentence of 12.5 years, while Fogle's defense attorneys asked for five years....

On appeal, Fogle argued that the sentence he received is "procedurally flawed" for three reasons. First, Fogle did not plead guilty to production of child pornography, and he played no role in producing the images and videos he received from Taylor, according to court records filed by Fogle's attorney.

Second, the punishment is "erroneously grounded in acts that Fogle didn't do and in Fogle's fantasies," neither of which should have been used to justify an enhanced sentence, court records say. "Notwithstanding any fantasies Fogle may have had, or his discussions with third parties concerning possible sexual contact with children younger than the prostituted minors, these events never ultimately culminated in any chargeable criminal activity," court records say.

Third, the sentence was erroneously based on Fogle collecting and viewing pornography of children as young as 6. Fogle argued that although he viewed pornographic images of children, he neither collected them nor asked Taylor for the images.

The district court also seemed to punish Fogle for seeking treatment after his arrest, court records say, and erroneously rejected a probation officer's recommendation for a less harsh sentence based on the additional stress and collateral damage he will endure because of his notoriety.

Fogle also argued that he never had sex with the minors whom Taylor recorded, and never shared any of the pornographic images and videos with anyone other than on one occasion, when he showed them to a woman with whom Fogle was romantically involved. Although he expressed interest in having sex with minors as young as 14, court records say, he never actually did.

In response to Fogle's arguments, federal prosecutors said Pratt "thoroughly and appropriately explored the unusual nature and circumstances of Fogle's offenses and his history and characteristics." Although Fogle was not involved in the production of child pornography, "he knew where the production took place, knew that it was going to happen, and did nothing, instead waiting for his chance to receive the material," according to court records filed by the U.S. attorney's office.

While prosecutors acknowledged the differences between Fogle and Taylor, they said Fogle rationalized and encouraged Taylor's conduct — and, for several years, benefited from it. "Fogle's fantasies were grounded in reality, in that he fantasized about and sought actively to repeat what he had already done, i.e., pay minors for sex," court records say.

Prosecutors also echoed Pratt's statements during Fogle's sentencing hearing last November. Fogle, unlike many offenders, had a relatively easy childhood, free of abuse and neglect. Although he did seek medical treatment, he did so only after he was caught.

Prior related posts:

May 20, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Fascinanting press report about fascinating prisoners and public health report suppressed in 2006

This new USA Today article, headlined "Quashed report warned of prison health crisis," reports on a significant public health report that was suppressed by the Bush Administration a decade ago. Here are the interesting details:

A government report, blocked from publication a decade ago, presciently warned of an advancing, double-barreled health crisis of mental illness and substance abuse that has currently swamped the nation’s vast prison systems.

The 2006 document, prepared by then-Surgeon General Richard Carmona, urged government and community leaders to formulate a treatment strategy for thousands of sick and addicted inmates that also would assist them after release or risk worsening public health care burdens. “This (report) has demonstrated that, far from being geographically and metaphorically separated from the community as was the case with Alcatraz Island, correctional facilities and those who pass through them are an integral part of the larger community," Carmona wrote in the document titled, “The Surgeon General’s Call to Action on Corrections and Community Health."

The 49-page report, Carmona said, was quashed at the time by George W. Bush administration officials who feared that such an acknowledgement would require a financial commitment that the administration was not willing to make.

Both Carmona and Roberto Potter, who served as an editor of the document while then-detailed to the surgeon general's staff from the Centers for Disease Control and Prevention, said the decision to quash the report was relayed to them through Department of Health and Human Services officials they did not identify. "It was what they call a top-drawer veto," said Potter, now a criminal justice professor at the University of Central Florida. "We missed one of those teaching moments. When something like this goes out under the surgeon general's seal, it really carries a lot of weight."...

More than a decade after the prison report was completed, local, state and federal officials are struggling to address the same health emergency — now in full bloom — that was outlined in the pages of the surgeon general's warning. "We deny the American public essential information that they need when this information is suppressed," Carmona said. "We missed an opportunity to take appropriate action to protect the public health."

In addition to mental illness and substance abuse, the report also highlighted concerns about the prevalence of infectious and chronic diseases, urging government officials to invest in a strategy that "could build on the positive outcomes of correctional health care in ways that would benefit the larger community" when inmates are released back into society. While substance abuse was identified as "the most prevalent ailment" among inmates, the report found that mental illness was up to three times higher within U.S. jails and prisons that in the general public. "The nation's largest mental health facilities are in large urban jails," the report stated.

May 20, 2016 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (0)

Thursday, May 19, 2016

Can anyone forcefully assert that a major sentence enhancement based on acquitted conduct (or even uncharged conduct) is "fundamentally fair"?

The question in the title of this post is prompted by a few notable sentences at the very end of the (otherwise not-especially-notable) majority opinion from the Supreme Court today in Betterman v. Montana, No. 14-1457 (S. Ct. May 19, 2016) (available here).  Specifically, after holding that the Sixth Amendment's Speedy Trial Clause does not apply to sentencing, the  Court in Betterman has this to say about the possible role of the "more pliable standard" that relates to due process rights: "After conviction, a defendant’s due process right to liberty, while diminished, is still present.  He retains an interest in a sentencing proceeding that is fundamentally fair."

As regular readers know, in the wake of Apprendi and Blakely and Booker (and even in light of the advisory Booker remedy), I believe that the Sixth Amendment's jury trial right must create a constitutional limit of some sort on judicially-imposed major sentence enhancements that are based on so-called acquitted conduct.  (My views here have most recently be articulated in full via this (unsuccessful) SCOTUS amicus brief in support of cert from a few years ago).  But, as Betterman helps to highlight, even if and when a defendant cannot prevail on a Sixth Amendment claim at sentencing, he can always fall back on a Fifth/Fourteenth Amendment Due Process claim.  And, of particular linguistic importance, if Betterman suggests that a significant majority of current SCOTUS Justices are serious about a possible due process right (or "interest") "in a sentencing proceeding that is fundamentally fair," perhaps it will be possible to get them to take up on due process grounds a challenge to a major judge-imposed sentence enhancement based on acquitted conduct or even uncharged conduct.

I know this post may be just wishful thinking that the last phrase about due process quoted above might be given some real constitutional bite by SCOTUS or lower courts in days and months ahead.  But hey, what fun is life without at least a little wishful thinking.

May 19, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Notable sentencing elements in Oklahoma bill making any and all abortions a felony subject to mandatory imprisonment of at least one year

As reported in this new Washington Post piece, headlined "Oklahoma legislature passes bill making it a felony to perform abortions," legislators in the Sooner State have now sent to the Governor a piece of legislation designed to test the enduring constitutional viability of Roe v. Wade sooner rather than later.  Here are the basics (with the sentencing portion that caught my eye highlighted):

Lawmakers in Oklahoma approved a bill Thursday that would make it a felony for anyone to perform an abortion and revoke the medical licenses of any physician who assists in such a procedure. This sweeping measure, which opponents have described as unconstitutional and unprecedented, was sent to Gov. Mary Fallin (R) for her signature.

Fallin has five days to decide whether to sign the bill, and her office did not immediately respond to a request Thursday about her plans. The Oklahoma bill is the first such measure of its kind, according to the Center for Reproductive Rights, which says that other states seeking to ban abortion have simply banned the procedure rather than attaching penalties like this.

According to the bill, anyone who performs or induces an abortion will be guilty of a felony and punished with between one and three years in the state penitentiary. The bill also says that any physician who participates in an abortion will be “prohibited from obtaining or renewing a license to practice medicine in this state.”

The bill passed the Oklahoma House of Representatives with a vote of 59-to-9 last month. On Thursday, the state’s senate passed it with a vote of 33-to-12. State Sen. Nathan Dahm, a Republican who represents Tulsa County, told the Associated Press he hopes the Oklahoma measure could eventually lead to the overturning of Roe v. Wade, the landmark 1973 Supreme Court decision that recognized a woman’s right to an abortion.

The Oklahoma State Medical Association, which has called the measure “troubling,” said it would not take a position on the legality of abortion. However, the group said that it would “oppose legislation that is designed to intimidate physicians or override their medical judgment.”

Ever the sentencing nerd, I found it interesting and notable that Oklahoma would seek to outlaw abortion and make it a felony offense, but then attach to it a mandatory minimum prison sentence of only one year and a mandatory prison maximum of three years. After a little digging, I found the full text of the passed Oklahoma bill going to the Gov here, and I discovered these intriguing criminalization/sentencing terms used to apply only to a prohibition on abortions being performed by anyone other than a licensed physician.  But the new bill, as shown below, deletes the language that allows licensed physicians to be excluded from this criminal prohibition:

SECTION 3. AMENDATORY 63 O.S. 2011, Section 1-731, is amended to read as follows:

Section 1-731. No person shall perform or induce an abortion upon a pregnant woman unless that person is a physician licensed to practice medicine in the State of Oklahoma. Any person violating this section shall be guilty of a felony punishable by imprisonment for not less than one (1) year nor more than three (3) years in the State Penitentiary.

Prior (arguably) related post:

May 19, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Major sentencing reform becomes reality in Maryland

S-l300One of the nicknames for Maryland (which happens to be the state where I grew up) is the "Free State." And today, as reported in this new Baltimore Sun article, the state has now enacted criminal justice reforms that help justify the continued appropriateness of this nickname. Here are the details:

Maryland officials are about to take steps to reduce the state prison population by more than 1,000 inmates while plowing millions of dollars into crime prevention.

Gov. Larry Hogan on Thursday signed the state's broadest criminal justice legislation in decades — a package that will reduce sentencing guidelines for drug dealers, thieves and other offenders, while increasing the number of crimes that can be wiped from an offender's record fivefold. Users of illegal drugs will be steered toward treatment, not incarceration. And new rules will help the state go after criminal gangs.

The Justice Reinvestment Act, a document of more than 100 pages, is a seismic shift from policies adopted during the late-20th century war on drugs, which critics say led to governments wasting money on incarceration that did little to increase public safety.  By reducing the Maryland prison population by about 1,100 people over the next 10 years, officials expect to save an estimated $80 million that can be redirected toward programs intended to prevent crime.

The bill was a compromise reached among Republicans and Democrats, prosecutors and defenders, civil libertarians and victims' rights advocates. Hogan said the bill "represents the largest and most comprehensive criminal justice reform to pass in Maryland in a generation."

But some officials and advocates say Hogan's approval, which came as he signed 144 bills in the final such ceremony this year, should begin an evaluation process. Some say doing away with mandatory minimum sentences was a mistake, as was reducing sentences for some drug offenses. Others bemoan the increased penalty for second-degree murder, and say not enough other penalties have been reduced. Most of the bill's provisions go into effect in October 2017. Some will become law this October....

Supporters say the legislation helps only nonviolent offenders. Del. Herb McMillan, an Anne Arundel County Republican, disagrees. "Pushing heroin and other opioids isn't nonviolent," McMillan told the House during debate last monh. "Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers need to hear."

Maryland is the 30th state to pursue Justice Reinvestment, a concept pushed by Senate President Thomas V. Mike Miller and Del. Kathleen Dumais, both Democrats. pushed after learning about it at legislative conferences. In 2015, the two sponsored successful legislation that created a council to recommend sweeping changes to lawmakers. From those recommendations, the Senate and House of Delegates crafted significantly different bills. The Senate's version was friendlier toward prosecutors. It took a marathon negotiation session two days before the end of the session to reconcile the bills.

The House backed off some of its proposed sentence reductions. The Senate agreed, reluctantly, to the repeal of mandatory minimums.

Sen. Robert A. Zirkin, who as chairman of the Senate Judicial Proceedings Committee led that chamber's work on the legislation, called its passage one of the best moments of his 18 years in the legislature. "There's never been a bill that I can recall of that magnitude, and it was a completely bipartisan, roll-up-your-sleeves and get-to-work effort," the Baltimore County Democrat said. He pointed to his close collaboration with Sen. Michael Hough, a Frederick County Republican.

Zirkin said one of the most important provisions specifies that treatment, rather than incarceration, should be the sentence for a person convicted of possessing drugs such as heroin or cocaine. "That's a more effective way to get that individual out of the criminal realm and back to being a law-abiding, tax-paying citizen," Zirkin said.

Zirkin said the bill also includes "the single largest expansion of expungement, possibly in this state's history." He said it expands the list of offenses that may be erased from public records from nine to about 50. They include misdemeanors related to theft and drug possession. The change is intended to make it easier for ex-offenders to qualify for jobs, housing and education....

Baltimore County State's Attorney Scott Shellenberger, who represented the state's prosecutors through the process, said he had to swallow hard to accept reductions to mandatory minimum sentences. He said such minimums were an effective tool in striking plea bargains.

Still, Shellenberger said, the legislation moves in the right direction. He said prosecutors have sought the increase in the maximum sentence for second-degree murder to 40 years for years. And he's pleased that lawmakers included Hogan's proposal to adopt a state version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) bill to go after criminal gangs.

Paul DeWolfe, Maryland's chief public defender, served on the council that made recommendations. He said he hopes lawmakers continue to build on the reinvestment process in the coming years. An oversight commission created by the bill will make recommendations for further reforms. "I do see this as a first step, and I hope that most members of the commission and the legislature think that way as well," he said.

Shellenberger, a Democrat known for his tough approach to crime, said he hopes the oversight panel will take it slow and let the state absorb the many changes in the bill over several years. "This is such a large change to the criminal justice system that I think we need to take a break and see what savings [result] and what happens as a result of this change," he said.

May 19, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Two interesting intricate criminal justice rulings from SCOTUS (including a first-ever casebook cite in Betterman!)

The Supreme Court release three opinions this morning, two of which are criminal justice cases. Here are the most essential basics with links via How Appealing:

1. Justice Elena Kagan delivered the opinion of the Court in Luna Torres v. Lynch, No. 14-1096. Justice Sonia Sotomayor issued a dissenting opinion, in which Justices Clarence Thomas and Stephen G. Breyer joined. You can access the oral argument via this link.

2. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court in Betterman v. Montana, No. 14-1457. Justice Thomas issued a concurring opinion, in which Justice Samuel A. Alito, Jr. joined. And Justice Sotomayor also issued a concurring opinion. You can access the oral argument via this link.

Statutory interpretation fans will be most interested in the ruling, but sentencing fans will be focused on the Betterman ruling. It gets started this way:

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Does the Sixth Amendment’s speedy trial guarantee apply to the sentencing phase of a criminal prosecution?  That is the sole question this case presents.  We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.  For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.  Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim.  He did not preserve a due process challenge.  See Tr. of Oral Arg. 19.  We, therefore, confine this opinion to his Sixth Amendment challenge.

Because I would like to see the Due Process Clause play bigger role in regulating sentencing matters, I am inclined to like the Betterman ruling. And, as the title of this post highlights, I definitely linked this passage from the majority opinion for an obvious personal reason:

[A] central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U. S. C. §3552; Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b), pp. 1048–1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay.8 Indeed, many — if not most— disputes are resolved, not at the hearing itself, but rather through the presentence-report process.  See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) (“Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than . . . about the sentencing procedures of judges or juries.”); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) (“[T]oday’s sentencing hearings . . . rubber-stamp plea-bargained sentences.”).

May 19, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Implementing Graham and Miller: just what qualifies as a "meaningful opportunity to obtain release"?

This new Marshall Project piece effectively details the enduring challenges that states necessarily face in honoring both the letter and spirit of the Supreme Court's modern Eighth Amendment work limiting LWOP sentences for juveniles.  The piece's full headline highlights its themes:  "When Parole Boards Trump the Supreme Court: The high court has said most kids shouldn't be sentenced to life without parole, but some prisoners' fate are in the hands of politics."  Here is how the piece started (with links from the original):

Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home. That’s the thrust of a series of Supreme Court rulings, the fourth and most recent of which was decided this year. Taken together, the high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.

But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.

Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.

Also last month, a group of juvenile lifers in Maryland filed suit, arguing that not a single juvenile lifer had received parole in that state in the last 20 years. “Rather than affording youth a meaningful and realistic opportunity for release…grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege,” the lawsuit says.

Similar suits are proceeding in Iowa, Michigan, Florida, Virginia and North Carolina, where a judge heard oral arguments last week.

“There are just two relevant kinds of sentences: those that provide a meaningful opportunity for release and those that don’t,” says Sarah French Russell, a Quinnipiac University law professor who studies juvenile justice. “Sentences that are not technically labeled life without parole can deny a meaningful opportunity for release because of the procedures or criteria used by the parole board.”

A few of many prior related posts:

May 19, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Are Prosecutors the Key to Justice Reform?: Given their autonomy — only if they want to be."

The title of this post is the headline of this lengthy Atlantic article which effectively highlights how little we know about the work of prosecutors and how critical they are to the operation and impact of criminal justice systems. I recommend the are piece in full, and here are snippets:

A consensus is building around the need to seriously rethink the role of the prosecutor in the administration of justice. Power dynamics are unbalanced, sentencing guidelines are outdated, and old-fashioned human biases persist.  And prosecutors — singularly independent agents in a justice system roiling in turmoil — have been facing growing criticism and public distrust for some time, and that disapproval is about to hit a tipping point.  It’s time to curtail the power long held by these officers of the court as they promote justice, ensure fairness, and enhance public safety....

John Jay College of Criminal Justice recently announced its new Institute for Innovation in Prosecution, headed by former prosecutor Meg Reiss.  A joint project from the Manhattan District Attorney’s Office and the college, the New York City-based institute will “develop programs designed to support innovation in the role of prosecutors in the American justice system.”  Reiss, a jurist with two decades of experience, has great faith in what her former colleagues can accomplish.  She also owns up to the negative perceptions typically tied to the role.  “There’s a lot of mystery about what actually goes on in a prosecutor’s office, so people have never been able to really evaluate it and see exactly what it is they’re doing,” she said....

Reiss said part of the solution is giving prosecutors better tools with which to do their jobs — with “a lot more discretion and creativity.”  She said some crimes should fall into categories like “alternatives to prosecution” and “diversion programs.”  “Of course, you address violent crime appropriately, and no one’s saying that you shouldn’t,” Reiss said.  “But I think everything needs to be carefully evaluated and understood.  There isn’t a broad stroke that you use for every type of crime or every type of person.” She cites the intelligence-driven prosecution model out of the Manhattan district attorney’s office as a good place to start: “DA Cyrus Vance is holding a symposium, one of many they’ve done already, on a crime-strategies unit that he has set up in his office, teaching other officers around the country how to do the same.”

It might take that kind of colleague-to-colleague approach to change the prosecutorial culture in the United States. “The bottom line is people came to be prosecutors because they really wanted to ensure fairness and increase public safety,” Reiss said.  “They have a real moment at this time to step up and make a big change, to really lead in this effort, to be really innovative and forthright in their intentions, to reduce mass incarceration, to address racial disparity in the system, to look for alternatives to oppressive sanctions.  We missed so many things and now is the moment.”

May 19, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

California voters in November to have "mend it or end it" death penalty initiative options

As reported in this new AP article, headlined "Showdown Set Over Future of California's Death Penalty," two competing ballot initiative appear poised to be before voters on the Left Coast this fall. Here are the details:

Death penalty supporters are setting the stage on Thursday for a November showdown over whether to speed up executions in California or do away with them entirely. Crime victims, prosecutors and other supporters plan to submit about 585,000 signatures for a ballot measure to streamline what both sides call a broken system.

No one has been executed in California in a decade because of ongoing legal challenges.  Nearly 750 convicted killers are on the nation's largest death row, but only 13 have been executed since 1978.  Far more condemned inmates have died of natural causes or suicide.

Supporters plan 10 news conferences statewide to promote an initiative they say would save taxpayers millions of dollars annually, retain due process protections and bring justice to murder victims and their families.  The measure would speed what is currently a lengthy appeals process by expanding the pool of appellate attorneys and appointing lawyers to the death cases at the time of sentencing.

Currently there is about a five-year wait just for condemned inmates to be assigned a lawyer.  By contrast, the ballot measure would require that the entire state appeals process be completed within five years except under extraordinary circumstances. To meet that timeline, appeals would have to be filed more quickly and there would be limits on how many appeals could be filed in each case....  Additional provisions would allow condemned inmates to be housed at any prison, not just on San Quentin's death row, and they would have to work and pay victim restitution while they wait to be executed....

Opponents say their measure, too, would save money by doing away with the death penalty and keeping currently condemned inmates imprisoned for life with no chance of parole. They submitted about 601,000 signatures on April 28 with much less fanfare, said deputy campaign manager Quintin Mecke.  Each side needs nearly 366,000 valid signatures to qualify for the ballot.  "It's unfortunate that the DAs (district attorneys) want to double down on a fundamentally broken death penalty system that simply can't be fixed," Mecke said. "You can't streamline or reform a failed policy."

A similar attempt to abolish the death penalty failed by 4 percentage points in 2012. Besides the latest initiative put forward by opponents, that failed effort spurred this year's counter-move by law enforcement and crime victims.

May 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, May 18, 2016

New CBO report indicates federal statutory sentencing reform would save many, many millions

This new Reuters article, headlined "Congress forecasters see major savings from sentencing reforms," reports on this new report from the Congressional Budget Office providing a "Cost Estimate" on S. 2123, the proposed Sentencing Reform and Corrections Act. Here are the basics via the Reuters report:

A criminal justice bill awaiting a vote by the U.S. Senate would reduce federal prison costs by $722 million over the next 10 years by releasing thousands of federal prisoners early, congressional forecasters said on Wednesday.

Federal benefits received by the newly released prisoners would increase direct spending by $251 million and reduce revenues by $8 million over the same period, according to the estimate by the U.S. Congressional Budget Office.

The new savings estimate buoyed supporters of the bipartisan measure to lower mandatory minimum sentences for some non-violent federal drug offenders, which is central to President Barack Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding.

"We have an obligation to change the way we think about incarceration, and today’s CBO report shows that we have a fiscal obligation as well," said the bill's co-authors, U.S. senators Charles Grassley, a Republican from Iowa, and Richard Durbin, a Democrat from Illinois, in a statement.

The bill was revised last month to exclude prisoners convicted of violent crimes in an effort to garner more support among conservatives.

May 18, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

SMU's new Criminal Justice Reform Center seeking applicants for Director position

In this post a few weeks ago, I noted the notable backstory behind a major donation given to the Southern Methodist University’s Dedman School of Law to create the Deason Family Criminal Justice Reform Center.  I am now able to reprint part of a job posting sent my way by the folks at SMU:

The SMU Dedman School of Law is seeking a full-time Director to establish and operate its new Deason Family Criminal Justice Reform Center. This is a full-time position. The initial contract term is one year, renewable for additional one to three year terms. We are open to considering a tenure-track, tenured or lecturer position as part of this appointment.

The Center’s mission is to promote criminal justice reform and the fair, compassionate and ethical treatment of individuals at all stages of the criminal justice process.

Duties include: 1) engage in strategic planning and establish policies, protocols, and procedures to govern the operation, including the establishment of an Advisory Board, 2) direct the day to day operations, including its research and programming; 3) produce original research reports and papers for external and internal audiences; 4) administer the budget, 5) hire and supervise the staff and oversee affiliated students as operations are established and grow, 6) create opportunities for students to benefit from the work of the Center, including developing new courses and research opportunities, as appropriate, 7) work closely with faculty at the law school and across campus, to support and promote their research, and 8) ensure compliance with the requirements of any applicable endowment or grant agreements.

JD or PhD in a related field is required.  Candidates must have an excellent academic and administrative record and at least ten years of experience working on issues related to criminal justice reform.  Such experience may be in academia, government, public policy, or other roles.  Prior teaching experience and prior experience in running a legal or policy center are also preferred.  

We are seeking a visionary leader with the desire to have a national impact on the critical and urgent conversations surrounding criminal justice reform. 12-month contract with benefits. Salary commensurate with experience.

Applications should be directed to the Faculty Appointments Committee, SMU Dedman School of Law, P.O. Box 750116, Dallas, TX 75275-0116, or emailed to bettya@smu.edu. Reference Position No. 00053776. To ensure full consideration for the position, the application must be postmarked by July 1, 2016, but the committee will continue to accept applications until the position is filled.

SMU will not discriminate in any employment practice, education program, or educational activity on the basis of race, color, religion, national origin, sex, age, disability, genetic information, or veteran status. SMU's commitment to equal opportunity includes nondiscrimination on the basis of sexual orientation and gender identity and expression. The Associate Vice President, Office of Institutional Access and Equity, has been designated to handle inquiries regarding the nondiscrimination policies. Hiring is contingent upon the satisfactory completion of a background check.

Prior related post:

May 18, 2016 in Who Sentences? | Permalink | Comments (0)