Monday, September 12, 2016

"Does the Supreme Court still believe in prosecutorial discretion?"

The question in the title of this post is the first line in this terrific new commentary by Randall Eliason at his Sidebars blog under the title "White Collar Crime, Prosecutorial Discretion, and the Supreme Court." I recommend everyone (and not just white-collar fans) to read the entire piece, and here is a taste of the astute discussion seeking to answer the question posed:

Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.

On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.

On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play....

In [a series of] recent [SCOTUS] cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors....

[T]he Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.

Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound.  The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.

But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions.  One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well.  If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.

I could write a series of law review articles about all the interesting and important modern issues that this commentary raises. With a particular focus on sentencing issues, I think it is not a coincidence that we are seeing the trend identified here at the same time there are widespread concerns about mass incarceration, the severity of some sentences for nonviolent offenders and the spread of significant collateral consequences for all convicted persons. Also, given that states can (and often will) prosecute any serious criminal activity not clearly covered by federal statutes, I really do not think we need to worry too much about narrow interpretations of broad federal criminal statutes.

September 12, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Spotlighting the import, impact and new debates over prosecutorial control of charging juves as adults

The Atlantic has this effective new article digging deeply into the role (and possible regulation) of prosecutors in the decision to try certain juvenile defendants in adult court.  (As practioners know, the decision to bind a juvenile over to adult court is often essentially a sentencing decision because the decision will often dramatically impact the maximum and minimum sentences a juvenile defendant will face.)  The lengthy piece carries this lengthy headline: "Treating Young Offenders Like Adults Is Bad Parenting: As one state wrestles with the effects of trying juvenile defendants in adult courts, others reconsider the practice." I recommend the piece in full, and here are excerpts:

In 2000, voters in California approved Proposition 21, a ballot measure that, among other things, gave district attorneys the right to “direct file” juvenile offenders who committed felonies and other serious crimes like murder and sex offenses. Direct filing gives the D.A. alone the power to decide whether or not a young offender should be tried as an adult in an adult court instead of in the juvenile-justice system.  In all, 15 states and Washington, D.C., have such a mechanism in place. In California, the D.A. has to make that decision within 48 hours of an arrest and usually only has the police report to guide his or her decision.  In 2014, 393 young people were direct filed and tried in state adult courts. The state attorney general’s 2015 juvenile-justice report states that 88 percent of juveniles tried in adult court were convicted. Call this parenting style the tough-love approach.

Deciding to direct file a young person circumvents the role of a judge, who would otherwise conduct a “fitness hearing” to determine where an offending youth should be tried.  It’s like one parent quickly and unilaterally deciding on a child’s punishment without first talking it over with the other parent.  In some cases, the second parent might stand firmly behind the first, but in others, being eliminated from the decision can lead to feelings of disrespect, accusations of power-hoarding, and the unearthing of buried tensions in the relationship.

“With direct file, there’s no opportunity for it to go before a judge to make that very important decision on whether or not a child should be prosecuted as an adult,” said Nisha Ajmani, a lawyer and program manager at the Center on Juvenile and Criminal Justice who opposes the practice.  She works with lawyers and young clients on direct-file cases or to prepare for fitness hearings.

But the district attorney has an incentive to eschew fitness hearings, since in California they are exhaustive and can take months. The hearings involve evaluating the young person on five criteria: the degree of criminal sophistication exhibited; whether rehabilitation is possible before the end of the juvenile court’s jurisdiction, at age 21; the delinquency history; the success of any previous attempts at rehabilitation by the juvenile court; and the circumstances and gravity of the offense that’s alleged.

California has worked in earnest in recent years to provide judges more guidance on those fitness criteria.  Now the state also emphasizes factors such as the offender’s home and family environment growing up, exposure to violence and trauma, mental and emotional development, and circumstances outside of the seriousness of the crime that might be relevant to the decision to prosecute in an adult court.  Call this parenting style the holistic approach. “A judge should really be the party making that decision after a fair, thorough, and neutral process,” Ajmani said, warning that district attorneys subject to elections often want to appear tough on crime to ensure their political viability. “It shouldn’t be the prosecutor who only has 48 hours to make that decision and is inherently biased to begin with.”

“The absolute reality is that we, as prosecutors, have an immense amount of power in California,” said Patrick McGrath, the Yuba County district attorney.  “In some respects, I think almost everybody would agree that the extent of power that we have over charging and case disposition probably really exceeds the amount of power that a judge has.”  But McGrath doesn’t think that power is misplaced: He employs direct file in his county and supports its basic premise.

September 12, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, September 11, 2016

Is Ohio again about to pioneer a new execution method?

The question in the title of this post is prompted by this Columbus Dispatch article from last week headlined "Ohio looks at nitrogen as a new execution method." Long-time readers may recall, from this post back in 2009, that Ohio was the first state to switch to a one-drug lethal injection protocol after it botch an execution. And, as this new article explains, new problems with lethal injection plans may prompt Ohio to become an execution pioneer again. Here are the details:

Ohio might consider adding nitrogen gas as a new execution method because of problems securing lethal injection drugs.

There have been no executions in the state for 2½ years, largely because of lawsuits and difficulty obtaining drugs for lethal injection.  Beginning in January, there are 28 convicted killers with execution dates scheduled over four years.

John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said today lethal injection is "stalled" and it's time for a change. Prosecutors have long been strong supporters of Ohio's death penalty law.   "I think the legislature ought to recommend another method of execution," Murphy said in an interview. He recommends switching to nitrogen gas, a method he called "humane and reasonably inexpensive."

Nitrogen gas, pumped into an air-tight chamber, produces asphyxiation by a lack of oxygen in the blood.  It has not been used for executions, although Oklahoma adopted it as a backup method. The sponsor of the Oklahoma law called it "foolproof."  People occasionally die accidentally from nitrogen asphyxiation. Deep-sea divers sometimes suffer from a form of it, producing an effect often described as euphoric. The gas is widely available and inexpensive.

JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the agency "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions."  State Rep. Jim Butler, R-Oakwood, chairman of the House Judiciary Committee, said, "It's good to look at alternative methods that are humane. That's something we should definitely do."  But Butler added, "One problem is if it's something that's not been tried before, you need to vet it to make sure it's appropriate. It's certainly going to be tested in the court system."

Other states have moved ahead with alternatives.  Tennessee permits use of the electric chair, Utah allows the firing squad, and Oklahoma allows nitrogen gas.

Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, said using nitrogen gas could be "dangerous and impractical."

"You and I are breathing 78 percent nitrogen right now," he said. "It's not a poison. It's an inert gas."  When nitrogen is introduced, oxygen is pushed out of the bloodstream, causing potentially painful suffocation, Groner said.  "I would challenge that it's foolproof. We've heard that before," he said.

September 11, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9)

NAAUSA sends letter to House members explaining its opposition of federal statutory sentencing reforms

As detailed via some prior posts linked below, the National Association of Assistant US Attorneys (NAAUSA) has been one of the most consistent and vocal opponents of federal statutory sentencing reforms that have been considered in Congress in recent years.  And this group has now just posted here via its website a lengthy letter authored by Steven Cook, NAAUSA's President, addressed to members of the US House of Representatives. Here is how the letter begins, its major headings, and its concluding paragraph:

As the voice of career federal prosecutors across the country, we write to make clear our strong and unequivocal opposition to the Sentencing Reform Act of 2015, H.R. 3713. This legislation, and other bills being advanced under the euphemistic label of criminal justice and prison or sentencing “reform,” will seriously undermine our ability to disrupt and dismantle violent gangs, domestic and international drug trafficking organizations, weaken federal firearm laws, and release thousands of violent convicted felons from federal prison. To explain our concern, we would like to make three points.

1. The federal criminal justice system is not broken. ...

2. Over the last decade the federal criminal justice system has been weakened or “reformed” in significant ways, discounting the need for any further reform. ...

3. The historic reduction in violent crime rates has begun to reverse course and in many cities across the country violent crime is skyrocketing. At the same time, we are suffering from the worst opioid epidemic in the history of our Nation. Now is the wrong time to remove or further weaken the very tools that federal prosecutors and law enforcement officers need to stem the tide of rising crime and prosecute domestic and international drug traffickers, violent gangs, and other violent offenders. ...

In conclusion, the federal criminal justice system has been significantly weakened over the last decade, the federal prison population continues to drop, homicide and violent crime rates are spiraling up across the country, and we are in the grip of the worst heroin and opioid epidemic in the history of our Nation. Now is the wrong time to remove or weaken the last tools available to federal prosecutors and law enforcement agents to combat these problems.

Some prior related posts highlighting some NAAUSA advocacy:

September 11, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Saturday, September 10, 2016

Great coverage of awful public defender realities, especially in Louisiana

The Guardian together with the Marshall Project hace done this past week a remarkable series on the remarkable shortage of public defenders in Louisiana. The series is all linked here via The Guardian, under the title "Justice Denied," and with videos and this brief general description: "A three-part series in partnership with the Marshall Project that examines the crisis of America's overburdened public defense systems, including a special report from Louisiana, where years of cuts and inconsistent funding have hit hardest." Here are the full headlines and links to the three parts of the series:

Here are snippets from the first of these articles highlighting why we ought not expect improvements to public defender systems anytime soon:

In recent years the US has begun to reckon with its role as the world’s biggest jailer, home to a manifestly unequal justice system that disproportionately punishes poor people of color. In diagnosing the causes of this problem much of the focus has centered on sentencing reform, but in a country where 95% of criminal cases are settled by plea deal, little attention has been given to the critical state of indigent defense.  Around the US, defenders routinely report an increase in overburdening and underfunding, caused by a variety of structural, political and economic drivers.

Up-to-date figures are scant, but according to a 2008 estimate by the American Bar Association, state and county governments spent a total of $5.3bn on indigent defense systems a year, just 2.5% of the roughly $200bn spent on criminal justice by states and local government every year. The depth of crisis varies in each state, indicative of the complex patchwork of defense systems that are funded and administered differently dependent on jurisdiction....

Despite the urgency of the crisis, recognized by both the US attorney general, Loretta Lynch, and her predecessor, Eric Holder, the issue remains intractable.  Congressional bills offering defender’s offices easier access to federal grant money have gone nowhere.

And in an election year during which Hillary Clinton has explicitly promised to “reform our criminal justice system from end to end”, dealing with the crisis in funding defense of the poorest people coming before the courts does not feature on her platform for change.  Donald Trump, who has promised to be “the law and order candidate”, has a vision for reform that goes no further than a vow to appoint “the best prosecutors and law enforcement officials in the country”.

September 10, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System"

The title of this post is the title of this timely new paper by Mark Osler now available via SSRN. Here is the abstract:

The constitutional pardon power has generated more controversy than mercy over the past three decades.  Even President Obama, who has pursued a focused clemency initiative, has struggled to meet historical standards.  While changing ideas relating to retribution play a role in this decline, there is another significant factor at play: too much bureaucracy.
Beginning around 1980, a review process has evolved that is redundant and biased towards negative decisions. No fewer than seven levels of review take place as cases course through four different federal buildings, a jagged path that dooms the process.  For years, this bureaucracy stymied even President Obama’s intention to reduce prison populations; the relative success of his clemency initiative came despite this bureaucracy, not because of it, and only after seven and a half years of futility.
This article analyzes the development of this system and the problems it creates before offering solutions based on the experience of state governments and President Ford’s successful use of a Presidential Clemency Board.

September 10, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, September 09, 2016

DOJ, wisely in my view, decides to drop prosecution against former Virginia gov Bob McDonnell and his wife

As reported in this Reuters article, "U.S. prosecutors on Thursday dropped corruption charges against former Virginia Governor Robert McDonnell and his wife, bringing to a close a case that tarnished the once-rising star of the Republican Party."  Here are more details and context:

"After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further," the U.S. Justice Department said in a statement. In June, the U.S. Supreme Court threw out McDonnell's bribery convictions in a ruling that could make it tougher to prosecute politicians for corruption.

The eight justices, liberals and conservatives alike, overturned McDonnell's 2014 conviction, saying that his conduct fell short of an "official act" in exchange for a bribe as required for conviction under federal bribery law. Jurors had convicted McDonnell for accepting $177,000 in luxury gifts and sweetheart loans to him and his wife Maureen McDonnell from a wealthy Richmond businessman seeking to promote a dietary supplement. He was sentenced to two years in prison but remained free pending appeal.

The case was a rare instance of the nation's highest court reviewing a high-level public official's criminal conviction. The court sent the case back to lower courts to determine if there was sufficient evidence for a jury to convict McDonnell, which had kept alive the possibility of a new trial.

His lawyers applauded the decision, saying in a statement on Thursday: "Governor McDonnell can finally move on from the nightmare of the last three years and begin rebuilding his life." McDonnell served as governor from 2010 to 2014 and once was considered a possible U.S. vice presidential candidate.

His wife was convicted in a separate trial and given a one-year sentence but remained free while pursuing a separate appeal.  The Supreme Court ruling effectively applied to Maureen McDonnell too, meaning that her conviction also had to be tossed out....

Legal observers have noted that the Supreme Court ruling opens the possibility that politicians could sell meetings and other forms of access without violating federal law.  The decision was criticized by Citizens for Responsibility and Ethics in Washington, a corruption watchdog group.  It said in a statement the Justice Department had "sent a clear signal that it would not aggressively enforce corruption laws to hold public officials accountable when they abuse their office.”

As I suggested in this prior post, I am generally pleased that the Justice Department has decided that there is now no real public benefit in continuing to use taxpayer moneys to seek to further condemn and harm former Gov McDonnell and his wife for their various suspect actions.

A few of many prior related post:

September 9, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, September 08, 2016

Top Texas criminal judges wonders about value of LWOP sentencing and its lesser process

This local article from Texas reports on interesting comments by a top state judge in the state about LWOP sentences. Here are excerpts from the article:

Judge Larry Meyers, the longest-serving member of the state’s highest criminal court, has grown uncomfortable with the way Texas allows for life in prison without parole, calling it a slow-motion death sentence without the same legal protections given to defendants who face the death penalty.  It can be argued, Meyers said, that the prospect of decades of prison — ended only by death from old age, medical problems or even violence — is as harsh or harsher than execution.

Even so, life without parole can be given in some capital murder cases without jurors answering two questions that must be considered before issuing a death sentence — is the defendant a future danger to society, and are there any mitigating factors such as mental disability or childhood abuse that weigh against capital punishment?

“I’m not saying the death penalty is unconstitutional.  I think right now it’s about as fair as it could be,” Meyers said. “But there are two variations of the death penalty; one is just longer than the other.  People are getting a (life without parole) death sentence without the same safeguards and procedures that you get when there is a death sentence.”

Larry Meyers has been a judge on the Texas Court of Criminal Appeals since 1993.  Meyers, the only Democrat on the Texas Court of Criminal Appeals, plans to make changing the life-without-parole system an issue of his re-election campaign, an admittedly uphill battle after he switched from the Republican Party in 2013 over disagreements in its direction under the surging tea party movement.

His Republican opponent in the Nov. 8 election, 22-year state District Judge Mary Lou Keel of Houston, believes Meyers has strayed from his principal task as a judge. “Policy issues like this are best left to the Legislature,” Keel said. “Doesn’t he have enough work to do as a judge?”...

Life without parole, an option for capital murder cases since 2005, has been credited with helping to sharply reduce the number of death row inmates by allowing prosecutors to reserve capital punishment for the worst cases, yet ensure that other convicted murderers are permanently removed from society.

Since life without parole became an option, the population of Texas’ death row has fallen to 244 inmates, down about 40 percent, as the pace of executions has outstripped the number of new death sentences. In contrast, 782 inmates were serving life without parole for capital murder as of July 31. An additional 54 inmates are serving life without parole after repeat convictions for sexually violent offenses, including crimes against children, since the Legislature allowed the punishment for the crime of continuous sexual abuse in 2007....

Seeking life without parole is by far the simpler option. Jurors are easier to seat — death penalty opponents aren’t allowed on juries if execution is an option — and there is no punishment phase trial. The appeals process also is less rigorous, with death row inmates granted two appeals before the state’s highest criminal court, while inmates serving life without parole go through the normal process. Meyers, a 23-year member of the Court of Criminal Appeals, believes life without parole has been made too simple, providing “an easy, inexpensive way of getting the death penalty.”

It would be fairer, he said, to let jurors consider some variation of the future danger question and to allow defense lawyers to present mitigating evidence. If jurors cannot agree that life without parole is appropriate, the defendant would get a life sentence and be eligible for parole after 40 years or some other suitable time, Meyers said.

The bigger reform — what Meyers called the “smarter fix” — would be for the Legislature to end capital punishment, making life without parole the ultimate punishment and including an option for parole. The political reality in Texas, by far the nation’s top death penalty state, makes that an extremely unlikely option for legislators, Meyers admits. “But right now, as I see it, there’s just two options — both for death,” he said....

Meyers said his change of heart on life without parole didn’t come about because of appeals. Nobody is going to tell his court that they improperly received a no-parole term when the alternative is a death sentence, he said. Instead, Meyers said, his qualms arose after coming to see the sentence as a delayed death penalty — one that is particularly harsh on young people — when a typical murder conviction is often enough to lock away killers until they are no longer a danger.

When the Legislature debated life without parole in the mid-2000s, prosecutors were divided on the best course to take, but many opposed adding a “long, drawn-out” sentencing hearing to determine the difference between a no-parole sentence and parole eligibility after 40 years, said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. “You could argue that it’s not much difference. It was a lot of squeeze without much juice,” Edmonds said.

In addition, many capital murder cases are decided by a plea bargain that allows defendants to choose perpetual prison time over execution. Some prosecutors feared losing bargaining leverage to a defense lawyer who threatened, for example, to drag out a sentencing hearing for three weeks unless offered a sentence with parole for a lesser crime like murder, Edmonds said.

Life without parole raises questions about whether Texas is imprisoning people long past the point that they “will ever be dangerous,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that provides capital murder legal representation at trial and on appeal. “We’ve got places in prisons that look like nursing homes. It makes me wonder, as a taxpayer, are these people dangerous? Why are we paying the extra cost of imprisoning them when they are geriatrics?” Kase said.

September 8, 2016 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, September 07, 2016

Feds file motion seeking to limit how jury might consider mercy in capital trial of Charleston mass murderer Dylann Roof

This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case. Here are the basic details:

Federal prosecutors trying the death penalty case against alleged Charleston church shooter Dylann Roof want to limit the use of “mercy” when he goes on trial later this year.  In a new court filing, prosecutors argue that should Roof be convicted, the jury should determine his sentence based on a weighing of the factors for and against — known as aggravating and mitigating factors — the death penalty.  Roof is accused of fatally shooting nine people inside the historically black Emanuel AME Church on July 17, 2015.

The prosecutors argue that allowing the defendant to instruct the jury that, regardless of their findings, they are never required to sentence someone to death isn’t consistent with the Federal Death Penalty Act.  In arguing against a mercy defense, prosecutors point out that during the sentencing phase of the trial, if it gets to that, the government’s burden is much higher — they must convince the jury to unanimously find that the aggravating factors outweigh the mitigating factors.  The defendant’s burden is “significantly lower” — he needs to convince one juror that there is enough mitigating evidence to merit a sentence less than death, such as life in prison without parole.

In the filing, the prosecution did say that mercy may enter into equation when the jury debates aggravating versus mitigating factors.  “It is within that context, and that context alone, that mercy may enter into the death penalty process,” the prosecution writes....

Earlier this month, the court revealed that 3,000 people were sent jury summonses notifying them that they are being considered to serve on the jury at Roof’s trial.  

This week, a South Carolina circuit court judge set the date for Roof’s state trial, which is expected to be tried after the conclusion of the federal trial.  That case, where Roof is also facing the death penalty, is scheduled to begin in late January 2017.

September 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

"Non-Adversary Prosecution"

The title of this post is the title of this notable new paper by Eric Fish now available via SSRN. Here is the abstract:

American prosecutors are conventionally understood as having two different roles.  They must seek the defendant’s conviction as adversary advocates, and they must also ensure the system’s fairness as ministers of justice.  But these two roles are at odds.  Legal scholarship and the organized bar try to elide this conflict by describing prosecutors as having a “dual role,” meaning that they must perform both functions.  But the resulting role confusion allows adversarial ethics to dominate in practice, leading to excessive punitiveness and wrongful convictions.

This Article argues that the “dual role” model should be scrapped, and that American prosecutors should not be understood as adversary lawyers at all.  Certain features of the American system — prosecutorial discretion, the limited role of victims, and the resolution of nearly all cases through plea bargain agreements — make it inappropriate, indeed dangerous, for American prosecutors to behave like partisan lawyers.

In seeking to move beyond the “dual role” model, this Article distinguishes three possible roles for prosecutors.  The first is adversarialism, in which a prosecutor exercises their discretion strategically in order to win convictions and punishments.   The second is legal neutrality, in which a prosecutor behaves like a disinterested adjudicator whose decisions are dictated by established rules.  The third is value weighing, in which a prosecutor exercises their discretion by choosing among a limited set of public values that are implicit in our legal institutions.

The Article ultimately argues that the American prosecutor’s role should be understood as combining the logics of legal neutrality and value weighing. When there is a binding rule and the prosecutor lacks discretion, they should act as a neutral conduit for the established legal principles.  And when the prosecutor faces a discretionary choice, they should act as an executive official committed to implementing a certain normative vision of justice.  But the prosecutor should never act as an adversary committed to winning for its own sake.  The Article also considers how the institutional structure of prosecutors’ offices, and the professional incentives that prosecutors face, might be reformed in order to accommodate such a non-adversarial role.

September 7, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Rounding up some recent commentary on recent Brock Turner controversies

Folks who following notable sentencing stories, and the notable reactions from various folks to notable sentencing stories, surely know the name Brock Turner.  And recent developments in his sentencing saga have prompted another round of useful commentary from various sources.  Here is a sample of this commentary, via links and full headlined:

Some (of many) prior related posts on the Brock Turner case:

September 7, 2016 in Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, September 06, 2016

You be DOJ: after SCOTUS reversal, should former Virginia Gov Bob McDonnell be tried for corruption again?

The "you-be-the-judge"-type question in the post is prompted by this Washington Post article headlined "U.S. attorney’s office recommends putting Robert McDonnell on trial again." Here is the basic context:

Less than three months after the Supreme Court vacated the convictions of former Virginia governor Robert F. McDonnell, the U.S. attorney’s office that prosecuted the Republican has recommended to Justice Department higher-ups that they endeavor to try him again, according to people familiar with the case.

The recommendation from the U.S. attorney’s office in the Eastern District of Virginia does not guarantee that McDonnell will once again have to battle corruption charges in court.  The decision ultimately rests with senior officials at the Justice Department, including the deputy attorney general and possibly the attorney general.  But it is a significant step that demonstrates how despite a Supreme Court ruling upending McDonnell’s convictions and significantly narrowing what can be considered public corruption, the prosecutors who convinced jurors that he was guilty the first time believe they could do it once more.

An attorney for McDonnell, a Justice Department spokeswoman and a spokesman for the U.S. attorney’s office all declined to comment.  Asked in an interview earlier this week whether she would accept the recommendation of prosecutors who handled the case — whatever that might be — Attorney General Loretta E. Lynch said, “That’s working its way through the process, so I’m not able to give you a comment on that.”

Prosecutors have until Sept. 19 to formally inform the U.S. Court of Appeals for the 4th Circuit what they intend to do and — if they are going forward — to set a briefing schedule.

McDonnell and his wife, Maureen, were convicted in 2014 of public corruption charges after jurors concluded that they lent the power of the governor’s office to Richmond business executive Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods.  Prosecutors alleged that the McDonnells helped Williams specifically by arranging meetings for him with other state officials and allowing him to host an event at the governor’s mansion to promote a product he was trying to sell. In one case, prosecutors alleged, the governor pulled out a bottle of that supplement, Anatabloc, and told other state officials that it worked for him....

Justice Department officials are probably weighing not only whether a case could be brought again but also whether it should. McDonnell’s first trial spanned five weeks, and it came after months of bitter and time-consuming pretrial litigation. Four prosecutors in the Eastern District of Virginia and the Justice Department’s public integrity section were consumed by it.  McDonnell was ultimately sentenced to two years in prison; his wife to a year and a day.

And from the case came a unanimous Supreme Court ruling that experts say makes prosecuting politicians on corruption charges substantially more difficult than it was before.  It is possible more successful challenges could lead to a further narrowing of corruption laws and hamper other investigations.  The Supreme Court’s ruling dealt a critical blow to the case against McDonnell but not an immediately fatal one.  The court decided that jurors were wrongly instructed on the meaning of the term “official act” — the thing that prosecutors were required to prove McDonnell did or tried to do for Williams in exchange for the businessman’s favors — and offered a definition far more narrow than what jurors had considered....

McDonnell’s defense attorneys had wanted the case to be thrown out wholesale on the grounds that prosecutors had presented insufficient evidence of an official act.  But the Supreme Court declined to do that, saying both sides had not had an opportunity to address the question in light of the court’s clarified definition.

And the opinion offered a possible way forward. While setting up meetings or calling other government officials could not be official acts by themselves, Roberts wrote, they could serve as evidence of an agreement to perform such an act — if, for example, jurors concluded the meeting helped show an official was attempting to pressure or advise another official to do something more....

If the Justice Department allows prosecutors to go forward, they will first have to convince the U.S. Court of Appeals for the 4th Circuit that there is enough evidence to proceed — which is no guarantee. That decision itself could be appealed to the Supreme Court.  And if they ultimately go to another trial, prosecutors would have to recalibrate how they present their case, focusing less on the meetings and events themselves than on how they show that Williams and McDonnell had broader plans.  That will not be easy. Roberts noted in the opinion that several McDonnell subordinates had testified at trial that the governor “asked them to attend a meeting, not that he expected them to do anything other than that.”

For a variety of reasons, I am inclined to conclude that the former Gov has, at least in some sense, already been punished enough. And, I am especially inclined to say I am not so keen on having the feds spend a lot more of my tax dollars going hard again after someone who poses no threat to public safety. But perhaps others view public corruption concerns differently, and thus the sincere question in the title of this post.

September 6, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (70)

"What Lurks Below Beckles"

The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Shakeer Rahman. Here is the abstract:

The Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review.  Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well.  But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will mean nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s.  This is due to a number of a circuit splits that the Supreme Court may not get an opportunity to address after the Beckles case.

The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them.  Doing so may be the only way to ensure that prisoners — particularly those in the Eleventh Circuit — will have a remedy for their unlawful sentences and to ensure that any right announced in Beckles applies uniformly across the country.  

While the Court typically limits itself to analyzing questions that are directly raised in the petition for certiorari, AEDPA is a reason the Court should depart from that practice here. Two decades ago, when the Supreme Court upheld AEDPA’s restrictions post-conviction review, several Justices warned that circuit splits related to successive motions might re-open the question of whether AEDPA’s restrictions are constitutional.  As we show below, the aftermath of Johnson and Welch in the lower courts is what those Justices warned about.  These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions that are not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.

September 6, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Sunday, September 04, 2016

SCOTUSblog examining "The Court after Scalia"

As introduced in this post, the fine folks at SCOTUSblog are doing an online symposium looking at "The Court after Scalia." Here is part of how Amy Howe introduces the pieces that follow:

With Senate Republicans still refusing to act on President Barack Obama’s nomination of Chief Judge Merrick Garland to succeed Scalia, it has become even more clear that the question of who will fill the vacancy hinges on the 2016 presidential election.  If Hillary Clinton is elected, the conventional wisdom goes, either Garland or someone else nominated by Clinton will replace Scalia, and the Court will generally move to the left.  But if instead Donald Trump is elected and nominates a candidate to succeed Scalia, the conventional wisdom posits, the balance on the Court will stay more or less the same.

The conventional wisdom may well be true for the Court as a whole.  But what does it mean for some of the high-profile issues — affirmative action, gun control, reproductive rights, and the death penalty, to name just a few — on which the Court has ruled or may rule in the years to come?  We are delighted to kick off today a symposium that seeks to answer that question.  Over the next few weeks, guest authors will explore the impact that a conservative or liberal nominee might have on some of these areas of the law.

And here are a few of the symposium posts on criminal law and other topics certainly worth checking out:

September 4, 2016 in Who Sentences? | Permalink | Comments (0)

Saturday, September 03, 2016

New York Times highlights modern rural incarceration realities

After various overseas internet struggles, I have been able to get on-line long enough to spotlight this great front-page article from Friday's New York Times about rural criminal justice headlined "This small Indiana county sends more people to prison than San Francisco and Durham, N.C., combined. Why?". Here is the start of a lengthy article that merits a full read:

Donnie Gaddis picked the wrong county to sell 15 oxycodone pills to an undercover officer.  If Mr. Gaddis had been caught 20 miles to the east, in Cincinnati, he would have received a maximum of six months in prison, court records show.  In San Francisco or Brooklyn, he would probably have received drug treatment or probation, lawyers say.

But Mr. Gaddis lived in Dearborn County, Ind., which sends more people to prison per capita than nearly any other county in the United States.  After agreeing to a plea deal, he was sentenced to serve 12 years in prison. “Years? Holy Toledo — I’ve settled murders for a lot less than that,” said Philip Stephens, a public defender in Cincinnati.

Dearborn County represents the new boom in American prisons: mostly white, rural and politically conservative.  A bipartisan campaign to reduce mass incarceration has led to enormous declines in new inmates from big cities, cutting America’s prison population for the first time since the 1970s.  From 2006 to 2014, annual prison admissions dropped 36 percent in Indianapolis; 37 percent in Brooklyn; 69 percent in Los Angeles County; and 93 percent in San Francisco.

But large parts of rural and suburban America — overwhelmed by the heroin epidemic and concerned about the safety of diverting people from prison — have gone the opposite direction.  Prison admissions in counties with fewer than 100,000 people have risen even as crime has fallen, according to a New York Times analysis, which offers a newly detailed look at the geography of American incarceration.

Just a decade ago, people in rural, suburban and urban areas were all about equally likely to go to prison. But now people in small counties are about 50 percent more likely to go to prison than people in populous counties. The stark disparities in how counties punish crime show the limits of recent state and federal changes to reduce the number of inmates. Far from Washington and state capitals, county prosecutors and judges continue to wield great power over who goes to prison and for how long. And many of them have no interest in reducing the prison population.

“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.” He added in an interview: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”

But many criminal justice experts say that the size of the disparities undercuts the basic promise of equal protection under the law.

“Letting local prosecutors enforce state laws differently throws all notions of equality under the law out the window,” said Peter Wagner, executive director of the Prison Policy Initiative, which advocates reducing incarceration rates. “This data puts governors and legislative leaders on notice that if they want to put criminal justice reforms into effect, they need to look at how prosecutors use and abuse their discretion.”

September 3, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, August 31, 2016

Clemency advocate explains her view on "How to inspire criminal justice reform"

The title of this post is drawn in part from the headline of this lengthy new CNN commentary authored by Brittany K. Barnett-Byrd, whom CNN describes as "an attorney and criminal justice reform advocate [who] has handled several successful clemency petitions, including the nationally reported cases of Sharanda Jones and Donel Clark."  Here are excerpts from her commentary:

As the daughter of a formerly incarcerated mother, I know that when one person goes to prison, the whole family goes to prison. Mass incarceration has devastated families and communities across America.  The United States makes up nearly 5% of the world's population and almost 25% of the world's prison population.  Today, there are over 2.2 million people incarcerated in this country.

The dramatic growth in incarceration as a result of the failed war on drugs cannot be ignored. At the state level, the number of people in prison for drug offenses has increased tenfold since 1980. In addition, nearly half of all federal prisoners are serving time for drugs.

While the statistics are astonishing, to truly understand the issue, we must look beyond the numbers and see the human capital sacrificed in the name of misguided appeals for law and order.  The human element is rarely addressed but is necessary to inspire and drive the change needed to reform our criminal justice system.

#17061-112. This number was assigned to my client Corey Jacobs 17 years ago when he began serving a life sentence in federal prison for nonviolent drug convictions. Corey had no prior felony convictions.  But with no parole in the federal system, he has been fundamentally condemned to die in prison.

Over two decades ago, Corey, now 47, began dealing drugs with a small group of college friends in Virginia. Though Corey was not a kingpin, he received an essential death sentence largely because three of his co-conspirators testified against him in exchange for reduced sentences.  Due to federal laws, Corey was held accountable for all "reasonably foreseeable" quantities of drugs attributed to the five other people involved in the conspiracy. Absolutely no dimension of his conduct was violent.

Despite facing the grim reality of dying in prison, Corey has worked diligently to prove that he is deserving of a second chance. He has devoted himself to extensive rehabilitative programming, completed three self-improvement residential programs and received over 100 learning certificates that have enhanced his education and personal development....

While there is little doubt that a prison sentence was warranted in Corey's case, he doesn't deserve to die in a cell because of it.  Life in prison without the possibility of parole is, short of execution, the harshest punishment available in America.  It screams that a person is beyond hope, beyond redemption.  It suffocates mass potential as it buries people alive. And, in Corey's case, it is a punishment that does not fit the crime.

Recently, I went to visit Corey in prison to discuss his pending clemency petition.  As I sat in the bleak, cold concrete interior of the attorney-client visiting room, I was struck by Corey's remorse, intelligence and dedication to bettering himself.   I learned Corey is an avid meditator. He mentioned how he once read nature could enhance the meditation experience, but he had not seen a tree in years. The prison yard is surrounded by daunting, gray brick buildings. The rest of our conversation was a blur because I could not move past the fact that he had not seen a tree. A tree.

Though I never imagined that visiting a United States Penitentiary would change the trajectory of my legal career, the state of consciousness I achieved after meeting Corey empowered me.  I no longer wanted to be just a lawyer.  I wanted to use this platform to promote the greater good.  Because of thousands of cases like Corey's, three months ago I resigned from my corporate law job to become a full-time advocate for criminal justice reform....

Last year the Sentencing Reform and Corrections Act of 2015 (S. 2123) was introduced into Congress. This crucial bill would pull back mass incarceration and save taxpayers billions of dollars by reducing mandatory minimums and making the Fair Sentencing Act of 2010 retroactive.  And yet despite unprecedented bipartisan support, it still has not come to the Senate floor for a vote.  We must urge Congress to pass this overdue, life-changing legislation.

But Congress is not the only branch of government beginning to address this injustice. Obama has shown he is committed to reinvigorating the clemency process through his administration's groundbreaking initiative to prioritize clemency applications for individuals like Corey....

Our criminal justice system is tangled in overcrowded prison cells, draconian sentences, shameful sentencing disparities, burdensome incarceration costs and heartbroken children and families.  Reform is desperately needed.  The time is now for the people who hold the levers of power to believe in humanity and to simply do the right thing.  After all, there is nothing more urgent than freedom.

August 31, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Latino legislator group calls for ending the death penalty

As reported in this NBC News piece, a "group of Latino legislators passed a resolution demanding the end of the death penalty in the United States because it disproportionately affects people of color of all ages." Here is more:

The National Hispanic Caucus of State Legislators said there is disproportionate punishment for Latinos, Black Americans and Native Americans. "The disproportionate and prejudicial application of the death penalty towards Latinos and other minorities, the high costs of this cruel and unusual punishment to our tax payers and the increasing likelihood that innocent people can be wrongfully executed by the states — among many other compelling reasons — led us to raise our voices to call for an end to capital punishment," said NHCSL President and Pennsylvania State Representative Ángel Cruz in a statement.

The non-profit, non-partisan group is made up of 320 Hispanic legislators in the U.S., Puerto Rico and the Virgin Islands. "Black, Latino, Native Americans, and all people of color are sentenced to longer prison terms, more likely to be tried as an adult, and are more likely to be sentenced to death in the USA," the resolution reads.

The resolution asks the U.S. congress and local municipalities to search for alternatives to combating violence and repeal the death penalty. The group points out that death penalty cases often cost taxpayers millions of dollars — an Urban Institute study found death penalty cases cost an average $3 million per trial, nearly three times as expensive as a trial without the possibility of a death penalty. "We cannot allow more government dollars to be diverted to killing people, instead of investing them in prevention, rehabilitation, and effective crime fighting measures that ensure greater safety in our communities," Cruz stated....

Rep. Dan Pabón, D-Colorado, said the death penalty is the "civil rights issue of our time."

"Even if repealing the death penalty results in one innocent life being saved, it's worth it. Our criminal justice system should focus on 'justice,'" Pabón said.

As I noted in this prior post, because Latinos make up nearly 40% of the population in California, how they cast their votes in this November's death penalty reform/repeal initiative battle is going to play a huge rule in the future of the death penalty in that state. But, if they focus a bit on the fuzzy thinking of Rep. Dan Pabón, they might end up being inclined to vote in favor of retaining the death penalty. Though the evidence about the deterrence effective of the death penalty are mixed, I think it is likely folks think that the death penalty is more likely to save innocent lives than to end them. For that reason (and because many think justice supports capital punishment for the worst murderesrs), I am not sure he is making a strong argument for repeal.

In addition, I cannot help but find remarkable the assertion that the death penalty, which impacts at most a few dozen people of color each year, should be considered the "civil rights issue of our time." I guess the Representative must think that all the other civil rights issues that impact tens of millions of individuals in the US are now all squared away.

August 31, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

"The Value of Confrontation as a Felony Sentencing Right"

The title of this post is the title of this new paper authored by Shaakirrah Sanders now available via SSRN. I have had a grand time earlier this week digging into the historic decision in Williams v. New York, so this article strikes me as especially timely. And here is its abstract:

This Article advocates recognition of the Sixth Amendment's Confrontation Clause as a felony sentencing right. Williams v. New York -- the most historic case on the issue of confrontation rights at felony sentencing -- held that cross-examination was not required to test the veracity of information presented at sentencing hearings, should constitute the beginning of the debate on the issue of confrontation rights at felony sentencing, not the end.  Williams was decided before incorporation of the Sixth Amendment's Confrontation Clause and reflects a sentencing model that assumes judicial authority to consider un-cross-examined testimony for purposes of fixing the punishment.  This assumption may be unwarranted in light of recent jurisprudence on founding era criminal procedure rights at felony sentencing.  Moreover, the standard that applied to confrontation rights at the time of Williams has been reformed and establishes that where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.  While this jurisprudence has only been applied during the trial, it can be practically and efficiently applied at felony sentencing.

The Sixth Amendment's other clauses give reason to value confrontation as a felony sentencing right.  The structurally identical Jury Trial and Counsel Clauses have rejected the “trial-right-only” approach to Sixth Amendment rights.  The Counsel Clause applies to all “critical stages” of the “criminal prosecution” which includes sentencing. The Court recently expanded the Jury Trial Clause to any fact that increased the statutory maximum or minimum punishment.  In light of this jurisprudence and the growing importance of sentencing hearings, a framework should and can be established to distinguish between sentencing evidence that should be cross-examined and sentencing evidence that should not be cross-examined.  This Article concludes that confrontation should apply to evidence that is material to punishment and where cross-examination will assist in assessing truth and veracity.

August 31, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Highlighting who is using money to highlight (and try to change) prosecutors' impact on criminal justice and its reform

This new Politico article highlights the role being a played by a notable political actor in funding efforts to charge via the polls some notable criminal justice articls. The article is headlined "George Soros' quiet overhaul of the U.S. justice system: Progressives have zeroed in on electing prosecutors as an avenue for criminal justice reform, and the billionaire financier is providing the cash to make it happen." Here is how it starts:

While America’s political kingmakers inject their millions into high-profile presidential and congressional contests, Democratic mega-donor George Soros has directed his wealth into an under-the-radar 2016 campaign to advance one of the progressive movement’s core goals — reshaping the American justice system.  The billionaire financier has channeled more than $3 million into seven local district-attorney campaigns in six states over the past year — a sum that exceeds the total spent on the 2016 presidential campaign by all but a handful of rival super-donors.

His money has supported African-American and Hispanic candidates for these powerful local roles, all of whom ran on platforms sharing major goals of Soros’, like reducing racial disparities in sentencing and directing some drug offenders to diversion programs instead of to trial.  It is by far the most tangible action in a progressive push to find, prepare and finance criminal justice reform-oriented candidates for jobs that have been held by longtime incumbents and serve as pipelines to the federal courts — and it has inspired fury among opponents angry about the outside influence in local elections.

“The prosecutor exercises the greatest discretion and power in the system. It is so important,” said Andrea Dew Steele, president of Emerge America, a candidate-training organization for Democratic women.  “There’s been a confluence of events in the past couple years and all of the sudden, the progressive community is waking up to this.”

Soros has spent on district attorney campaigns in Florida, Illinois, Louisiana, Mississippi, New Mexico and Texas through a network of state-level super PACs and a national “527” unlimited-money group, each named a variation on “Safety and Justice.”  (Soros has also funded a federal super PAC with the same name.)  Each organization received most of its money directly from Soros, according to public state and federal financial records, though some groups also got donations from nonprofits like the Civic Participation Action Fund, which gave to the Safety and Justice group in Illinois.

UPDATE: Though this Politico article does not indicate if Soros spent money trying to take down Florida prosecutor Angela Corey, this local Florida article reports on her notable primary loss yesterday starting this way:

Melissa Nelson, an unknown corporate lawyer and former prosecutor three months ago, cleared her path to become one of the most powerful and influential figures in Northeast Florida on Tuesday night when she easily defeated incumbent 4th Judicial State Attorney Angela Corey.

The election caps a dizzying rise for Nelson and an equally shocking fall for Corey, one of the most polarizing political figures in Jacksonville history who generated national attention and enormous criticism for her prosecutions of George Zimmerman, Marissa Alexander, 12-year-old Cristian Fernandez and many others. Corey will depart office in the first week of January as the first incumbent state attorney in modern history to lose a contested election.

August 31, 2016 in Campaign 2016 and sentencing issues, Who Sentences? | Permalink | Comments (2)

Tuesday, August 30, 2016

Continuing his notable clemency momentum, Prez Obama grants 111 more commutations

Chart_082916_commutationsAs reported in this new NPR piece, "President Obama shortened the prison sentences of 111 inmates Tuesday, including 35 people who had expected to spend the rest of their lives in federal custody, authorities told NPR." Here is more about today's exciting clemency news and its context:

Word of the new batch of clemency grants came as the second-in-command at the Justice Department told NPR that lawyers there have worked through an enormous backlog of drug cases and, despite doubts from prisoner advocates, they will be able to consider each of the thousands of applications from drug criminals before Obama leaves office in 2017.

"At our current pace, we are confident that we will be able to review and make a recommendation to the president on every single drug petition we currently have," Deputy Attorney General Sally Q. Yates said.

The early releases apply to mostly non-violent drug offenders who would have received lighter punishments if they committed the same crimes today. The new commutations mean this White House has granted 673 commutations, more than the past 10 presidents combined. Tuesday's grants follow 214 more earlier this month.

In February the new pardon attorney, Robert Zauzmer, asserted that stacks of petitions would not be left on his table next year. But that had long been in doubt. After the Justice Department and the White House launched the initiative for drug offenders about two years ago, white collar criminals, sex predators and violent criminals sent their applications, too. Those petitions flooded volunteer lawyers and officials in the Office of Pardon Attorney. The pardon attorney, Deborah Leff, ultimately resigned after raising alarms about insufficient resources to do the job, which she said could "change the lives of a great many deserving people."

Lawyers working for prisoners said there's still a lot more work for the administration to do. Mark Osler, who led an effort by three dozen law professors and advocates to get the White House to pick up the pace, estimated that 1,500 drug prisoners should win commutations based on the administration's criteria. By his math, that means the president has not yet moved on more than half of the inmates who should win shorter sentences....

In an interview, White House Counsel Neil Eggleston said the president gives each request a special, individualized review, keeping in mind their crimes, their record in prison and whether they merit a second chance, to walk their grandchildren to school or hug their families. Eggleston said the president "doesn't think of it as a number he wants to reach."

"The president's view is that he would like to grant as many worthy petitions as get to his desk and I think he's going to tell me to put worthy petitions on his desk until the last day, and that's what I intend to do," Eggleston said.

Eggleston has this new posting at the White House blog with the chart reprinted here under the heading "President Obama Grants 111 Additional Commutations, the Most Commutations Granted in a Single Month."  Here are excerpts:

Earlier this month, President Obama granted commutation to 214 federal inmates, the most commutations granted in a single day by any President in this nation’s history. With today’s additional 111 grants, the President has commuted the sentences of 325 people in the month of August alone, which is the greatest number of commutations ever granted by a president in a single month. The 325 commutations the President has granted in just one month is more than any president granted in a single year for nearly a century.

Today’s 111 commutation grants underscore the President’s commitment to using his clemency authority to provide a second chance to deserving individuals. To date, President Obama has granted 673 commutations: more commutations than the previous ten presidents combined. More than one-third of the President’s commutation recipients, or 232 individuals, were serving life sentences....

While I expect that the President will continue to grant commutations through the end of this administration, the individualized nature of this relief highlights the need for bipartisan criminal justice reform legislation, including reforms that address excessive mandatory minimum sentences. Only the passage of legislation can achieve the broader reforms needed to ensure our federal sentencing system operates more fairly and effectively in the service of public safety.

August 30, 2016 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Split en banc Seventh Circuit ruling, previewing coming Beckles debate before SCOTUS, applies Johnson to career-offender guidelines

As regular readers may recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines.  As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines. 

In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline.  But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  

As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett has not led to its reconsideration.  As blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.  Continuing my friendly ways in this setting, I had the honor and pleasure to work with Carissa Hessick and Leah Litman on this new SCOTUS Beckles amicus brief explaining why we think the US Sentencing Guidelines are subject to vagueness challenges and why any ruling that a guideline is unconstitutionally vague should be made retroactive.

Though folks interested in a full understanding of the Beckles case might read all the extant SCOTUS briefing, folks interested in understanding the substantive highlights and the basic arguments on both sides of this intricate and important story can now just turn to the split en banc ruling of the Seventh Circuit yesterday in US v. Hurlburt, No. 14-3611 (7th Cir. Aug. 29, 2016) (available here).  Here are two key paragraphs from the start of the majority opinion (per Judge Sykes) in Hurlburt:

The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g) violations. 18 U.S.C. § 924(e)(2)(B).  One year ago the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally vague.  Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).  The question here is whether Johnson’s holding applies to the parallel residual clause in the career offender guideline.  An emerging consensus of the circuits holds that it does. See infra pp. 16–17.

In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent — namely, United States v. Tichenor, 683 F.3d 358, 364–65 (7th Cir. 2012) — holds that the Guidelines are not susceptible to challenge on vagueness grounds.  But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning.  Accordingly, we now overrule Tichenor.  Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

And here are a few key paragraphs from the dissenting opinion (per Judge Hamilton) in Hurlburt:

The doctrinal foundation of the majority opinion is inconsistent with the overall sweep of Supreme Court decisions following United States v. Booker, 543 U.S. 220 (2005), which held the Guidelines advisory as the remedy for the Sixth Amendment problems with mandatory sentencing rules that require judicial fact‐finding. Since Booker, the Supreme Court has been trying to maintain a delicate balance, recognizing that the difference between “binding law” and “advice” depends on the different standards of appellate review. See Gall, 552 U.S. at 50–51....

If the Supreme Court extends the rationale of Peugh, as the majority does here, and embraces wholeheartedly the concept that the Guidelines are like laws, that result would be difficult to reconcile with the Booker remedy, which spared the Guidelines from Sixth Amendment challenges by making them advisory. The delicate doctrinal balance the Court has tried to maintain since Booker would be threatened by extending vagueness jurisprudence to the advisory Guidelines.

August 30, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Lameting modern parole practices while making a case that "Jailing Old Folks Makes No Sense"

The quoted title of this post is the headline of this new New York Times op-ed authored by Geraldine Downey and Frances Negrón-Muntaner.  But, as these extended excerpts from the commentary highlight, the piece is mostly focused on problems with modern parole decision-making:

In 1980, the methadone clinic that had been treating Gloria Rubero as an outpatient dropped her. She was soon desperate for drugs. In August that year, she and an associate took part in a burglary that went wrong and led to the murder of an elderly neighbor.  Ms. Rubero was arrested three days later, and was eventually convicted of robbery and second-degree homicide.  The judge at Ms. Rubero’s trial gave her an indeterminate sentence of 20 years to life.

At the start of her jail term, Ms. Rubero felt suicidally depressed.  But over time, she devoted herself to helping others.  In 1985, she became a founding member of the Youth Assistance Program and logged more than 200 hours of speaking to at-risk youth on the harshness of prison life.... Ms. Rubero also got an education: earning, first, her G.E.D.; and then, between 1992 and 1993, an associate in arts and a bachelor of science from Mercy College, in Dobbs Ferry, N.Y. She even made the dean’s list. [S]he also joined the maintenance staff, and excelled at electrical and plumbing work [and later] was accorded the very rare privilege of carrying tools like craft knives, screwdrivers and wire cutters.

Despite this record of rehabilitation, she was denied parole five times in a period of six years.  Each time, the parole board concluded that Ms. Rubero could not be granted parole because the “serious” and “violent” nature of her crimes made her release “incompatible with the welfare and safety of the community.”  In 1999, Ms. Rubero suffered several major strokes, and at a subsequent parole board hearing, she was unable to walk or talk. Yet she was still considered a danger to the community, and her application was denied. Ms. Rubero gradually recovered, and finally, after her sixth hearing, was granted parole and walked out of prison.  She was 56 and had spent 26 years behind bars.

Many incarcerated people would be the first to acknowledge the pain and loss their crimes caused.  But if prisoners older than 50 have served decades-long sentences and have shown evidence of rehabilitation, the only rationale for holding them appears to be endless punishment and retribution.

The problem is growing as the American prison population gets grayer.  By 2012, there were almost 125,000 inmates age 55 and older out of a total population of 2.3 million. Even as the overall prison population continues to decrease, it is estimated that by 2030, there will be more than 400,000 over 55s — a staggering increase from 1981, when there were only 8,853.  The numbers are rising despite recognition that continuing to lock up older prisoners not only does nothing to reduce crime, but is also expensive and inhumane.  More and more aging people are becoming seriously ill and dying in prison.  Prisons are not equipped to be nursing homes.

And there is mounting evidence that there is little, if any, public safety benefit to keeping people like Ms. Rubero in prison for so long.  According to recent studies, a vast majority of people over 50 who are released from prison in the United States, including those with convictions for violent offenses, are much less likely to commit a crime than younger people who have never been incarcerated.  Nationally, rearrests occur for only 2 percent of former prisoners over 50, and hardly at all among over-65s.  Most people simply age out of crime.

If older people in prison pose so little danger, why not free them?  As Ms. Rubero’s experience suggests, a major reason is a resistance to granting parole.  The criteria of parole boards in states like New York include assessments of a prisoner’s possible threat to public safety and her chances of reintegrating into society.  Yet boards primarily base their decisions to deny on the seriousness of the crime for which the person was convicted.

Overlooking the fact that elderly people who have served long sentences are not a public safety risk, parole boards focus instead on the past criminal behavior.  In effect, they prefer to resentence the prisoner rather than make a judgment about the individual’s growth since entering prison.

What can be done to change course and stop spending billions of taxpayer dollars to keep people behind bars for excessive lengths of time ? An immediate first step would be for parole boards to give more weight to a prisoner’s transformation since entering her incarceration. Indefinitely locking up prisoners who pose no security risk once they have served their minimum term and who could contribute more outside is an inexcusable waste of money and human potential.

August 30, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Feds takeover of "The Playpen" to facilitate child-porn distribution now generating court controversies

In this post from back in January, I noted early reports of a surprising government operation of a notorious "dark-web" child porn website and asked "Will FBI child porn operations generate same controversy as Fast and Furious?". This Seattle Times article highlights that the controversy is starting to find expression in motions by criminal defendants to dismiss prosecutions based on what they call outrageous government actions. Here are the basics:

For two weeks in the spring of 2015, the FBI was one of the largest purveyors of child pornography on the internet. After arresting the North Carolina administrator of The Playpen, a “dark web” child-pornography internet bulletin board, agents seized the site’s server and moved it to an FBI warehouse in Virginia.

They then initiated “Operation Pacifier,” a sting and computer-hacking operation of unparalleled scope that has thus far led to criminal charges against 186 people, including at least five in Washington state.

The investigation has sparked a growing social and legal controversy over the FBI’s tactics and the impact on internet privacy.  Some critics have compared the sting to the notorious Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the illegal sales of thousands of guns to drug smugglers, who later used them in crimes.

Defense attorneys and some legal scholars suggest the FBI committed more serious crimes than those they’ve arrested — distributing pornography, compared with viewing or receiving it.  Moreover, the FBI’s refusal to discuss Operation Pacifier and reveal exactly how it was conducted — even in court — has threatened some of the resulting criminal prosecutions.

Last month, a federal judge in Tacoma suppressed the evidence obtained against a Vancouver, Wash., school district employee indicted in July 2015 on a charge of receiving child pornography because the FBI refused to reveal how it was gathered.  Similar motions are pending in other prosecutions in Washington and elsewhere around the country.

During the two weeks the FBI operated The Playpen, the bureau says visitors to the site accessed, posted or traded at least 48,000 images, 200 videos and 13,000 links to child pornography.  At the same time, agents deployed a secret “Network Investigative Technique,” or NIT, to invade their computers, gather their personal information and send it back to the FBI.

According to court documents, between Feb. 20 and March 4, 2015, as many as 100,000 people logged onto the site, which was accessible only by using the anonymous “Tor” browser, which encrypts and routes internet traffic through thousands of other computers to hide the identity of a user.  Tor, which is used for private communications by government officials, lawyers, journalists, judges and others, was thought to be virtually uncrackable until news of the FBI’s operation became public....

In [court] pleadings, the government has defended the operation as the only way to pierce the anonymity of the so-called “dark web” and get at the criminals who dwell there.  Such websites cannot be found by Google or by typing in a web address and are typically operated on the Tor network. “The United States, the FBI, did not create this website,” said Assistant U.S. Attorney Keith Becker, a trial attorney with the DOJ’s Child Exploitation and Obscenity Section, at a Tacoma court hearing in January. “It was created by its users, and administrators, and existed and substantially distributed child pornography long before the government took it over in an effort to actually identity its criminal users.”

Defense attorneys, however, alleged in filings last week that FBI agents actually improved The Playpen site during the two weeks they had control, making it faster and more accessible.  Visitation of The Playpen while under FBI control jumped from 11,000 to 50,000 people a week.  “This is easily the largest domestic use of hacking by law enforcement in U.S. history,” said Mark Rumold, a senior staff attorney at the Electronic Frontier Foundation, a digital freedom and legal services nonprofit in San Francisco. “The problem is that there just aren’t a lot of rules on how they go about it.”

“I will not be surprised at all if we wind up before the U.S. Supreme Court,” he said. Critics also accuse the FBI of committing crimes more serious than it was investigating — distribution of pornography versus receiving it — and say the operation flies in the face of the Justice Department’s pronouncement that a child is re-victimized every time a pornographic photo is viewed or distributed.

Chris Soghoian, the principal technologist and a senior policy analyst with the American Civil Liberty Union’s Speech, Privacy, and Technology Project, said The Playpen investigation bears striking similarities to Operation Fast and Furious. “Except here, it’s child porn,” Soghoian said....

Last month, U.S. District Judge Robert Bryan in Tacoma threw out the evidence in one of the first “Operation Pacifier” prosecutions, involving a Vancouver school employee named Jay Michaud.  The reason: The FBI has refused a court order to reveal to Michaud’s defense attorneys the nature of the Tor vulnerability or how the NIT works.  Michaud is accused of visiting the Playpen site multiple times during the two weeks it was under FBI control and viewing explicit photos of children being sexually abused. He faced up to 20 years in prison. With the evidence tossed out, Michaud’s case likely will be dismissed. The government has appealed the judge’s decision.

A federal judge in Oklahoma reached the same conclusion in an Operation Pacifier case there, and similar motions are pending in dozens of other cases.  Bryan has also allowed two other Operation Pacifier defendants in Washington state to withdraw guilty pleas so they can challenge the government over the issue.

Michaud’s attorney, Colin Fieman, a Tacoma-based federal public defender, is leading a “national defense working group” that is tracking and coordinating challenges to Operation Pacifier cases.... The case has shown that the “FBI cannot be trusted with broad hacking powers,” Fieman said.  “There is no question that the internet poses serious challenges to law enforcement,” Fieman said. But he believes that in its desire to overcome those challenges — and fight the scourge of child pornography — the agency “has lost its moral compass and is willing to ignore the rules and even break the law to extend its reach.”

Michaud and other defendants have also sought to have their charges dismissed due to “outrageous government conduct” over the FBI decision to take it over and leave the site running. “It is impossible to reconcile the Playpen operation with the government’s own view of the harm caused by the distribution of child pornography,” Fieman wrote in motion to dismiss another Washington case filed last week. “The DOJ routinely emphasizes … that possessing and circulating pornographic images re-victimizes the children depicted in them.”...

Judge Bryan rejected that argument in the Michaud case, stating during a January hearing that agents were “trying to catch the bad guys, so to speak.”

“Whether they did it right is a different thing,” he said. “But they didn’t do it wrong as to be grossly shocking or outrageous to violate the universal sense of justice” and warrant dismissing the charges.

Prior related post:

August 30, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, August 29, 2016

Detailing efforts by Michigan prosecutors to have LWOP juveniles resentenced to LWOP

This lengthy local article, headlined "Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’," details some of the remarkable efforts of Michigan's local prosecutors in response to the Supreme Court's Miller and Montgomery rulngs requiring the resentencing of juvenile murderers preiously given mandatory LWOP sentences.  Here are some extended excerpts:

Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles.  Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only “rare” cases.

According to data, which Bridge obtained from a network of Michigan lawyers, at least nine county prosecutors are asking judges to uphold life sentences for every so-called “juvenile lifer” convicted in their courts.  They argue that these inmates, including some who have behind bars for decades, can never be safely returned to society.

“I think what the prosecutors are doing is appalling,” said Ann Arbor lawyer Deborah LaBelle, a prisoner rights advocate who is organizing free legal representation for about 100 juvenile lifers.  “The Supreme Court says the vast majority have to have the chance at being paroled,” LaBelle said.  “You can’t just lock them up and throw away the key for things they did as a child.”

Among the most resistant to the Supreme Court’s ruling: Saginaw County Prosecutor John McColgan Jr., who wants to uphold 21 of 21 sentences in which life terms were given to juvenile defendants.  It’s nine of nine in Kalamazoo County. And seven of seven in Muskegon County.  

Meanwhile, Oakland County Prosecutor Jessica Cooper has asked judges to uphold mandatory life sentences for 44 of 49 inmates who committed crimes as juveniles.  In Genesee County, Prosecutor David Leyton is asking the same in 23 of 27 cases.

More broadly, four large Michigan counties — Genesee, Oakland, Saginaw and Wayne — account for 150 of the 218 cases for which prosecutors are seeking to uphold life without parole. In Wayne County, which includes Detroit, Prosecutor Kym Worthy is seeking life without parole in 61 of 153 cases – hardly rare at 40 percent, but lower than Oakland County’s request to uphold 90 percent of juvenile life sentences.

Oakland County Sheriff Michael Bouchard put an incendiary exclamation mark on the position of prosecutors when he held a press conference in July in which he compared juvenile lifers to a famous fictional serial killer. “I looked at a sample of these individuals and they are Hannibal Lecters who committed very heinous murders — often, multiple murders — and then they’ve continued to display very assaultive behavior in prison and show no remorse,” Bouchard said.

Overall, according to the data, prosecutors are seeking to uphold life-without-parole sentences for 218 of the 363 men and women in state prisons for crimes committed as minors.  Most were convicted of first-degree murder or of abetting first-degree murder. Some were as young as 14.  The oldest is now 71.  The effort to keep juvenile lifers permanently behind bars faces pushback from legal advocates, as well as some federal prosecutors....

Prosecutors in Michigan were given a July deadline to name juvenile lifers within their jurisdictions who they contend remain too dangerous to ever walk free.  Those named will face an eventual mini-trial in which prosecutors have to prove they were among the irretrievably depraved.  The facts of the original crime, statements by friends or relatives of the victim and each inmate’s background and behavior in prison are to be weighed.  For those lifers not targeted by prosecutors, legislation signed by Gov. Snyder in 2014 spells out a default minimum sentence of 25 years in prison to maximum of 60 years....

In an interview with Bridge, Oakland County prosecutor Cooper called the 44 cases that she challenged for parole some of the most “heinous” crimes she has seen.  She said her decision on those cases was reached only after months of exhaustive review. “We are talking about victims who were stabbed, drowned, bludgeoned and decapitated,” Cooper said. “We are not talking about people who took Dad’s car and drove over somebody’s lawn.  Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.”...

Michael Dettmer, former U.S. Attorney for Michigan’s Western District, joined with another former Western District U.S. Attorney, James Brady, and Richard Rossman, former U.S. Attorney for the Eastern District, recently wrote an op-ed condemning the move by state prosecutors to challenge lesser sentences for juvenile lifers.  “As former U.S. Attorneys,” they wrote, “we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.

“Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgment to recognize whether the adult before them today has rehabilitated himself.”  Dettmer said he considers state prosecutors’ push to keep so many in prison for life “a slap in the face” of the court’s instruction on rehabilitation.

But county prosecutors have a powerful ally in Michigan Attorney General Bill Schuette.  Schuette has vigorously fought reconsideration of juvenile life sentences, filing a friend of the court brief in 2015 in the Montgomery case on behalf of Michigan and 15 other states opposing any retroactive look at those sentences.  Asked to comment on the high rate of challenges by county prosecutors, a Schuette spokesperson said, “In general, Attorney General Schuette supports local prosecutors and their decisions.”

August 29, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System"

The title of this post is the title of this notable new paper by my OSU colleague Ric Simmons available via SSRN. Though this paper is mostly focused on the use of big data in police practices, all serious students of sentencing know that big data can and does also play a role in risk assessments and other post-conviction decision-making. Here is the abstract:

Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched.

However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause.  This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations.

These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.

August 29, 2016 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Fourth Circuit ruling highlights circuit split (and general insanity) regarding loss calculations and guideline sentencing in securities fraud case

The Fourth Circuit on Friday handed down a lengthy opinion in US v. Rand, No. 15-4322 (4th Cir. Aug. 26, 2016) (available here), affirming the convictions and sentence of a white-collar defendant "following his involvement in earnings mismanagement and improper accounting transactions while acting as chief accounting officer at Beazer Homes USA, Inc." The sentencing discussion in Rand occupies only six pages of a 35+ page opinion, but those pages include elements of what I see as so very insane about loss calculations and guideline sentencing in security fraud cases.  These background paragraphs from the Rand opinion provide the foundation for my insanity complaint:

U.S. Sentencing Guideline § 2B1.1 sets the offense level for certain fraud offenses and requires an increase based on the loss caused by the offense conduct, in accordance with a table in § 2B1.1(b)(1). An application note instructs that “in a case involving the fraudulent inflation or deflation in the value of publicly traded security,” loss should be calculated based on how the price of a security changed, “after the fraud was disclosed to the market.” U.S.S.G. § 2B1.1 Application Note 3(F)(ix).

At sentencing, the parties debated which of Beazer’s three public disclosures qualified as the date on which the “fraud was disclosed to the market”.... The court determined that the fraud was disclosed in June and August and that the loss to investors following those dates was $135 million. Accordingly, the district court calculated an offense level of 51 for a guidelines range of life imprisonment, capped by the statutory maximum.  The parties agreed that if the October date were used, the resulting loss would be $0. Had the district court used the loss amount following the October disclosure, Rand’s offense level would have been 19, with a range of 30 to 37 months.  The court ultimately varied downward from the guidelines range of life imprisonment and imposed a ten-year sentence.

In other words, it seems here that the facts surrounding the defendant's criminal behavior is not in serious dispute for sentencing purposes, but there is a big legal dispute over how the federal sentencing guidelines take stock of the "loss" cause by this behavior. And, remarkably, for calculating the advisory guidelines sentencing range, one legal take on this issue calls for the defendant to get an LWOP+ sentence, but the other legal take calls for the defendant to get no more than about 3 years' imprisonment. I do not think it is insane for me to assert that it is insane for so radically different guideline prison recommendations to hinge on a technical legal dispute over loss calculations.

Adding to the insanity, at least in my view, is the Fourth Circuit panel's subsequent explanation for why it is disinclined to follow the Second and Fifth Circuits in having the US Supreme Court's "Dura [civil case] loss-causation principles apply to criminal securities fraud cases."  In short form, the Fourth Circuit panel agrees with "the Third, Sixth, and Ninth Circuits [which] have declined to apply Dura in the context of criminal sentencing" largely because concerns about mis-attributing "loss" are distinct in the civil and criminal contexts.  I fully agree that concerns about mis-attributing loss are distinct in the civil and criminal contexts, but it seems backward to make it much easier to attribute loss (as does the Fourth Circuit and other circuits refusing to adopt Dura loss-causation principles) in criminal cases where life and liberty (and not just property) are at stake.

In any event, and perhaps quite wisely, in the Rand case as noted in the case excerpt, the sentencing judge ultimately did not follow the guidelines range of life imprisonment when sentencing the defendant.  The defendant he was sentenced "only" to 120 months' imprisonment, which obviously constitutes a huge downward variance from the guidelines' LWOP recommendation (though also, of course, constitutes a huge upward variance if the Rand’s offense level really should have been 19 with a range of 30 to 37 months' imprisonment).  In this way, I suppose, the sentencing judge in Rand did what he could to stop the guidelines insanity.

August 29, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Does a weekend tweet from House Speaker Paul Ryan suggest that federal statutory sentencing reform still has a chance in the months ahead?

The question in the title of this post is prompted by this weekend tweet from the account of House Speaker Paul Ryan, which includes a clip of a pro-sentencing reform speech that Speaker Ryan gave earlier this year and has this notable new sentence: "There are over 2 million people in our prisons, and a lot of them are just people who made a mistake."  Ever eager to hope that federal statutory sentencing reform is not completely dead for the current year, I want to consider this tweet a positive development to that end.

That said, I learned of this tweet from this Breitbart posting, and a good bit of the posting highlights why I probably should not really get too excited or hopeful in the wake of this tweet:

In July, Ryan said he believed that Congress “overcompensated” in the 1990s by imposing tough jail sentences to combating a decades-long crime wave and a drug epidemic that destroyed communities and lives across the country. He’s now backing legislation that would slash sentences for convicted drug traffickers.

“In the 1990s, to your first point, I think government, both Republicans and Democrats, overcompensated on our criminal code. And we went too far and there are disparities — crack cocaine vs. powder cocaine — there are clear disparities and more importantly, I think that we’ve learned there are better ways of dealing with some of these problems than locking up somebody for 20 or 30 years,” Ryan told NRP host Steve Inskeep. “You end up ruining their lives, ruining their families, hurting communities, and then when they try to re-enter into society, they’re destitute.”

“So I really think there are better methods of dealing with these problems and I think that is part of criminal justice reform. I think that’s something I put out in the poverty plan that I first authored three years ago. So we intend on bringing these bills up in September,” he added.

Conservative critics have labeled the so-called reform efforts as “jailbreak” bills. For example, the Sentencing Reform and Corrections Act of 2015 (SRCA) would reduce penalties for drug traffickers profiting from poisoning communities. Neither would these drug-related penalty reduction bills significantly reduce some racial disparities, law enforcement officials say. “Blacks make up 37.5 percent of the prison population at the state and federal levels. If we released those convicted on drug charges alone the percentage of Black males in prison would drop to 37 percent — a mere half of one percent,” Milwaukee County Sheriff David Clarke testified before the House Judiciary committee.

Furthermore, the rollbacks will harm the communities they’re allegedly intended to help, say critics. “People who are convicted of a crime and imprisoned are a very small minority of the U.S. population … they comprise approximately 6.6 percent of the population,” Peter Kirsanow and a member of U.S. Commission on Civil Rights wrote in a letter to Grassley. “These people have managed to be less law-abiding than the remaining 93.4 percent of the U.S. population – quite a feat,” he wrote. “It is perhaps less of a feat when one considers that many offenders have serious additional problems that likely incline them toward criminality.”...

“This bill doesn’t touch simple possession, because there’s virtually no simple possession cases in federal court,” said prominent critic Alabama Sen. Jeff Sessions. “The Senate bill would drastically reduce mandatory minimum sentences for all drug traffickers, even those who are armed and traffic in dangerous drugs like heroin, and provide for the early release of dangerous drug felons currently incarcerated in federal prison.”

Meanwhile, drug overdoses, mostly heroin and other opioids, killed over 47,000 Americans in 2014 alone and nearly half a million in the past decade. Nearly all heroin sold in the U.S. is imported illegally from Mexico. “While Colombia has historically been the biggest source of heroin sold in the United States, Mexican output has since surpassed it, DEA officials say. Together, the two countries account for more than 90 percent of the U.S. heroin supply, and nearly all of it is smuggled into this country by Mexican traffickers,” the Washington Post reports.

Yet Ryan continues to push the bipartisan elites’ sentencing reduction agenda even as Obama continues his “stigmatize-and-federalize” campaign against local and state law enforcement — and as the Obama administration is set to free 70,000 federal prisoners.  But Republicans’ efforts to partner with Democrats on leniency for criminals has stalled amid public concern.  Fifty-three percent of Americans, and 68 percent of nonwhites, are “worried a great deal” about rising violent crime, according to an April Gallup poll.

The Senate sentencing-rollback bill has been stopped by opposition from multiple Senators, including Sessions and Sen. Tom Cotton.  Also, President Barack Obama has rejected a proposed deal from Sen. Orrin Hatch and other Republicans leaders who have offered to back the rollback bill if Democrats support a “mens rae” rollback of white-collar business prosecutions.

August 29, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, August 28, 2016

"Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine"

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

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules.  When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits.  As a result, systemic violations of criminal procedure rights — like the right to effective counsel — persist without judicial correction.

But the law contains a tool which, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy.   Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants’ abilities to assert violations their federal rights.  And unlike the more commonly invoked cause-and-prejudice doctrine, which excuses default on the theory that a defendant’s unusual circumstances justify an exception to the rules, procedural adequacy doctrine allows courts to question the legitimacy of the state procedural regimes themselves.  As a result, procedural adequacy doctrine can catalyze reform in a way that cause-and-prejudice cannot.

For procedural adequacy litigation to catalyze reform, however, it must be adapted to modern circumstances in one crucial respect.   Historically, procedural adequacy doctrine focused on cases involving the deliberate manipulation of individual rules.  Today, what is needed is a structural approach to adequacy, one that would consider how the interaction of multiple procedural rules unfairly burdens federal rights.  Such a structural approach to adequacy is consistent with the doctrine’s original purposes and is the most sensible way to apply procedural adequacy under current conditions.  Litigants should accordingly deploy a structural approach to procedural adequacy doctrine and use it to stop states from burying systemic constitutional violations in complicated procedural labyrinths.

August 28, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Immediately after sentencing for attempted murder, Ohio man gives himself the death penalty by jumping off third floor

As reported in this local Ohio article, headlined "After sentencing, man jumps from courthouse third floor, dies," a sad and sudden development concluded a state sentencing proceeding on Friday. Here are the details:

A tragic turn of events occurred after a man sentenced on an attempted murder charge took his own life at the Jefferson County Courthouse.

What started as a sentencing hearing for 42-year-old Jason Binkiewiz Friday morning ended in tragedy. Jefferson County Common Pleas Judge Michelle Miller handed down a 13-year prison sentence for the charges of attempted murder and felony assault. The charge stems from a man being shot in the face outside a Dillonvale home in November 2015.

The proceedings were littered with details on a troubled past filled with a long criminal history. In some of her final remarks to the court the judge noted: "His behavior has continued over a period of 16 years, has continued to escalate and spiral out of control, resulting in somebody getting shot in the face."

But from the courtroom, things only spiraled further. As a deputy escorted Binkiewicz out of courtroom, he made his escape. "He made a run for the banister on the third floor of the courthouse and threw himself over the banister and has been pronounced dead," Jefferson County Sheriff Fred Abdalla said.

Screams filled the inside of the courthouse, and outside emergency responders rushed to the scene. Binkiewicz jumped approximately 100 feet to his death, from the third floor to the first floor.

"As soon as Binkiewicz started running, Deputy Price he was on him quick enough when he reached out, he had his shirt. It wasn't good enough, and if he held on to the shirt, most likely Deputy Price would have gone over with him," said Sheriff Abdalla. Officials are still in shock and prosecutors who have been working the case say the outcome could not have been predicted.... Because a sheriff's deputy was involved, the Steubenville police department will be handling the investigation along with the Attorney General's office.

August 28, 2016 in Offender Characteristics, Who Sentences? | Permalink | Comments (1)

Saturday, August 27, 2016

"Fourteen Years Later: The Capital Punishment System in California"

The title of this post is the title of this new and timely article authored by Robert Sanger and avaiable for download via Bepress.  Here is the abstract:

Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed.  The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if California’s system was in need of the same reforms.  The study concluded that over ninety-two percent of the same reforms were needed in California.  In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead to the execution of the innocent.

This article is an effort, fourteen years later, to determine what has transpired in California during the last fourteen years.  It will survey of the major scholarly and judicial work that has been published in the last fourteen years on the death penalty nationally and specifically with regard to California as well as on the progress, if any, to meet the unmet recommendations of the Illinois Commission.  

This article concludes that there has been much additional criticism of the failures of the criminal justice and death penalty systems in the country and specifically in California. Nevertheless, the empirical study demonstrates that no additional Recommendations of the Illinois Commission have been met in California in the last fourteen years.  Illinois, itself, enacted significant reforms to meet at least some of the Illinois recommendations.  Nevertheless, Illinois repealed its death penalty.  California, despite no reforms, has not, as yet. The voters will have that option on November 8, 2016.  By voting “Yes“ on Proposition 62, the California death penalty would be repealed.

August 27, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, August 26, 2016

"Where Recreational Marijuana Is Legal, Should Those in Prison for Weed Crimes Get a Puff, Puff, Pass?"

Marijuana-Pot-arrestThe question in the title of this post is not only one that I have given a lot of thought to in recent years, but also the headline of this recent article from The Root. The piece usefully highlights that California's marijuana legalization initiative to be voted upon in November speaks a bit to this issue.  Here are excerpts from the piece:

Twenty years ago, Rico Garcia was 21 when he got caught up in a marijuana sting in Colorado with a friend who wanted to buy some weed. The seller turned out to be a police informant, and Garcia and his friend were arrested. “The police came and arrested us and said we were selling weed,” says Garcia, now a 41-year-old marijuana advocate who runs Cannabis Alliance for Regulation and Education. “My friend said it was his, but … under Colorado law at the time, 8 ounces was possession with intent and I got a felony.”

Garcia says he was a first-time offender and a public defender got him to agree to accept a plea deal. He didn’t realize the full ramifications of having such a charge on his record. “They said, ‘No jail’ — that’s how they get brown people — and I said, ‘That sounds nice,’” recalls Garcia, who is Puerto Rican. He says he got four years’ probation and was released from it in two years, but the felony is still affecting his life. “You’re pretty much disqualified for housing. … Most who could give you a loan for a car or house give you a different rate or simply won’t lend to you. You can’t own a firearm, even in a pro-gun state; you can’t get any government grants or hold certain occupational licenses.”

Even though medical and recreational use of marijuana is legal under most circumstances in Colorado, Garcia’s felony precludes him from being part of the weed boom the state is enjoying, a problem that plagues many people of color trying to get into the weed business. There’s also a debate about the fate of nonviolent offenders currently incarcerated for weed crimes in states where recreational marijuana is now legal. Some marijuana advocates support the idea of state pardons for offenders incarcerated for such crimes as more states consider legalizing recreational marijuana....

[T]here has been some debate among marijuana advocates over whether lawmakers and voters would support such an effort involving weed crimes because they had to walk such tightropes to get legislation for medical and recreational marijuana approved in the first place. California — where most advocates expect Proposition 64, the Adult Use of Marijuana Act, to pass in November in a state that has had a medical-marijuana program for 20 years — could set a national standard for the fate of nonviolent marijuana offenders caught up in the prison system.

Not only does Proposition 64 reduce the current penalty for selling marijuana for nonmedicinal purposes from up to four years in prison to six months in jail and a fine of up to $500, but it also includes big changes for those previously convicted of marijuana crimes. Those serving sentences for activities that are either legal or subject to lesser penalties under the new measure would be eligible to be resentenced. Plus, those who have already done their time could apply to have their convictions removed from their records....

But the politics surrounding whether nonviolent marijuana users should be pardoned or allowed to have their records expunged completely are complicated. In Colorado, Andrew Freeman says, people can apply to have their felony conviction for a marijuana offense that is no longer illegal under Amendment 64 changed to a misdemeanor. But that stays on your record.

Freedman notes that few of the people still in prison in Colorado for marijuana are there only for a single, nonviolent offense, which would make it easy for them to be released. According to a 2014 report (pdf) by the state’s Department of Corrections, there are only 71 nonviolent marijuana offenders among Colorado’s 20,300 inmates....

Tom Angell at the Brooklyn, N.Y.-based Marijuana Majority breaks it down even further, saying that the pardoning of nonviolent marijuana offenders has been part of a general debate among advocates about what is the best, most comprehensive marijuana-reform proposal that can be put on the ballot and garner the support of voters.

“I think there’s some question as to whether a sufficient number of voters would be skittish about the notion of releasing people from prison en masse,” Angell says. “In an ideal world, we want to release all the marijuana offenders yesterday! We absolutely do. But this is politics and reality, and you can’t let the perfect become the enemy of the good. We need to achieve what is achievable today and build on those victories and keep getting wins on the scoreboard.”

This Root story usefully highlights why folks interested in criminal justice and sentencing reform ought to keep a special eye on discussions and developments with marijuana reform in California this election season. Moreover, as this review of some recent posts from my Marijuana Law, Policy & Reform blog should highlight, I see no shortage of interesting marijuana reform issues that ought to interest criminal justice and civil rights folks:

August 26, 2016 in Clemency and Pardons, Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Some hisorical perspective on today's debates over private prisons

Over at Bloomberg View, Stephen Mihm has this intriguing new commentary running under the headline "America's Rocky Relationship With For-Profit Prisons." Here are excerpts:

Shareholders of [private prison] corporations, along with advocates of privatization, shouldn’t shrug off the federal decision so hastily. They should remember what happened the last time that prison privatization became popular, and that proponents sought to turn incarceration into a business, claiming it was cheaper, more efficient, and could even achieve better results than public control.

This belief foundered on the reality that privately-run prisons often failed to turn a profit, and when they did, those profits often came at the expense of the inmates’ well-being.  These failures and abuses eventually led to a repudiation of private prisons, with the business of punishment and rehabilitation monopolized by the state. Another shift may now be at hand....

[I]n 1825, Kentucky surrendered the entire state-run prison to Joel Scott, a textile manufacturer.  Scott invested money in the prison but also managed to turn a significant profit. Emboldened by this success, other states quickly followed suit, particularly in the West and the South.  In some cases, the shift to private management yielded solid results; other times, though, it ended in disaster.  When California hired a crooked entrepreneur named James Estell to build and maintain its new San Quentin prison, the new penitentiary soon earned a reputation for corruption, lax management and cruelty toward prisoners.

Estell, who forced prisoners to make bricks, refused to invest in necessities -- such as a wall to keep the inmates within the prison.  Convicts routinely escaped, even after the state grudgingly built a wall, and while under private control, some 47 inmates escaped each year. When the state took over the prison in 1865, that number dropped to four.

Nonetheless, with rare exceptions, the contract system continued to flourish. This was particularly true in the South, which used the convict lease system to institute a de facto slavery for a prison population that was overwhelmingly black.  Throughout the region, state prisons turned over their inmates for work on railroads, turpentine plantations, roads and other projects.  The incompetence and brutality of these for-profit prisons was staggering. In Texas, for example, almost a fifth of the inmates escaped in 1876, and more than 6 percent died, and another 10 percent was listed as “missing,” but were not known to have escaped.  Similar scandals plagued other Southern for-profit ventures.

In the end, these abuses gave ammunition to a coalition of critics.  Humanitarian reformers argued that the for-profit prisons made a mockery of the idea or rehabilitation.  Federal officials who studied prison businesses discovered that prison contractors kept dying industries alive through subsidies of cheap labor.  Labor unions, which hated competition from prison labor, agreed.

The first major defeat for private prisons was in 1887, when Congress passed a law forbidding the contracting of any inmates in the federal prison system.  With private enterprise banned from the national penitentiaries, the battle shifted to the individual states.  After a pitched battle, New York curtailed then completely banned private contractors in the prison system by 1897. Massachusetts followed suit, as did Pennsylvania.

The pro-profit prison industry fought back, but eventually state after state banned for-profit arrangements with contractors, moving prisons on to the public accounts.  This shift was accompanied by the return of another, older idea: that prisons could help rehabilitate inmates, not merely punish them. If reform was the primary purpose of penitentiaries, profit necessarily became a secondary concern.  The decline of the private prison was gradual and halting, but it would eventually receive federal sanction with the passage of the Ashurst-Sumners Act, which made it illegal to transport prison-made goods across state lines.

Eventually, though, the tide would turn yet again.  In 1979, President Carter signed the Justice System Improvement Act, which laid the foundation for the Prison Industries Enhancement Program.  This lifted the ban on interstate commerce in goods made by prisoners, and helped usher a new age of prison privatization, spearheaded by corporations such as CCA.

These companies have thrived as the nation’s prison population skyrocketed, with many inmates incarcerated for non-violent drug offenses. As unease over this situation has grown, voices on both ides of the political spectrum have begun to agitate for prison reform. And that has gone hand-in-hand, much as it did over a century ago, with growing attacks on the marriage of punishment and profit. With the federal government taking the lead, much as it did back in 1887, the U.S. might be on the cusp of another revolution in thinking about the appropriate relationship between prisons and profit.

If history is any guide, it may well take decades for the states to follow, but eventually they will.

Just some (of many) recent and older posts about private prisons:

August 26, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, August 25, 2016

New York Times magazine takes deep dive into "Where the Death Penalty Still Lives"

In this post earlier this week, I highlighted the new Fair Punishment Project report taking close look at the small number of US counties still actively utilizing the death penalty.  That report,  Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, has justifiably received a good deal of national and local media coverage.  But the biggest and most impressive discussion of the report and the various issues it raises appears in this week's forthcoming New York Times magazine via this lengthy feature article under this full headline: "Where the Death Penalty Still Lives: As capital punishment declines nationwide, a tiny fraction of the country generates an alarming number of death sentences. What this new geography tells us about justice in America."   Here are a few excerpts of a great read from the pen of Emily Bazelon:

What separates the 16 counties where the death penalty regularly endures from the rest of the country, where it is fading away?  The 16 counties span seven states in the South and the West.  They include major cities, like Los Angeles, Houston, Las Vegas and Phoenix; suburban areas like Orange County, Calif., and San Bernardino, Calif.; and semirural pockets like Mobile County, Ala., and Caddo Parish, La.  Some are dominated by Demo­cratic voters, some are dominated by Republicans and a few are evenly split.  Many of the counties have high numbers of murders, but so do plenty of other places that don’t use the death penalty.

Brandon Garrett, a law professor at the University of Virginia, along with a research team at Harvard Law School called the Fair Punishment Project, has been trying to identify the factors that explain why certain counties still regularly impose capital punishment.  They have been delving into the death-penalty records of the 16 counties and comparing them with those of other jurisdictions and have found three key features that often characterize the 16. “The people who get the death penalty tend to live in places with overaggressive prosecutors and defense lawyers who aren’t up to the task of defending against them — that’s a double whammy,” says Robert J. Smith, who directs the project. “Then in some places there’s a third element: a cultural legacy of racial bias and exclusion. It’s just not true that we execute the people who are the most culpable.”...

Black jurors are relatively absent from death-penalty trials, which can affect their outcomes.  “Research shows the mere presence of blacks on capital juries — on the rare occasions they are seated — can mean the difference between life and death,” Melynda J. Price, a law professor at the University of Kentucky, wrote in a 2009 law review article. But to be seated on a death-penalty case, a prospective juror must say he or she could vote for execution without substantial moral or religious qualms, in keeping with the test set by the Supreme Court.  Since African-Americans oppose capital punishment at a higher rate than whites, fewer of them can serve.

Prosecutors also can take steps to keep them off juries.  In Caddo Parish, La., which is among the 16 counties, prosecutors excluded black jurors at three times the rate of white jurors between 2003 and 2012, according to Reprieve Australia, a legal-assistance group.  “You see all-white or nearly all-white juries at capital murder trials where you’d never expect it given the diversity of the population,” says Smith of the Fair Punishment Project.

Florida and Alabama also diminish the influence of any juror who wants to spare a defendant’s life.  They are the only states that don’t require a unanimous vote for execution. Between 2010 and 2015, there was only one unanimous verdict among 13 death sentences in Jefferson County and Mobile County, both on the list of 16.  Of the 24 death sentences Angela Corey has won, three came from unanimous juries. The jury split 8 to 4 in eight cases, and in three others, the vote was 7 to 5.

Many of the 16 counties where the death penalty is prevalent have a criminal-justice system with a power structure similar to Duval’s.  Whites retain control to a striking degree, despite the presence of sizable numbers of African-Americans or Latinos.  This phenomenon is the most pronounced within the former borders of the Confederacy. “Alabama has 19 appellate judges,” says Bryan Stevenson, founder of the Equal Justice Initiative, which represents clients on death row in the state.  “They are all white.  Fourteen percent of the trial judges are black.  Out of 42 elected prosecutors in the state, one is black.”  Stevenson says that by seeking numerous death sentences, prosecutors in the Deep South “hark back to the history of using the criminal-justice system to maintain racial control.”  Mobile County is the site of the last known lynching in the country, in 1981.  (After a jury deadlocked in the trial of a black man accused of killing a white police officer, two Ku Klux Klan members abducted a black 19-year-old who had nothing to do with the death, cut his throat and hanged his body from a tree.)  Jefferson had the state’s highest total of lynchings between 1877 and 1950.  In Caddo Parish, men have been hanged outside the courthouse, where a monument to the Confederacy still stands on the front lawn.

August 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Ohio Supreme Court concludes it violates due process to treat a juve adjudication like adult conviction at later sentencing

As reported in this local press article, headlined "Court: Juvenile crimes can't enhance adult sentences," the Ohio Supreme Court handed down an interesting sentencing opinion today in Ohio v. Hand, No. 2016-Ohio-5504 (Ohio Aug. 25, 2016) (available here).  Here is the press summary of the ruling:

Prior juvenile convictions cannot be used to escalate the severity of charges or increase the prison sentences of adults, a divided Ohio Supreme Court ruled today.

In a 4-3 decision, the justices declared that treating cases from juvenile court as prior convictions for adult-sentencing purposes is unconstitutional, violating the due-process clauses of the Ohio and U.S. constitutions, and is “fundamentally unfair.”

Justice Judith Ann Lanzinger, writing for the majority, said that juvenile court proceedings, which are civil — not criminal — matters, are designed to protect the development of those under age 18 while they are rehabilitated.

Adult felony sentences, however, are designed to protect the public and punish offenders, she wrote. “In summary, juvenile adjudication differs from criminal sentencing — one is civil and rehabilitative, the other is criminal and punitive,” Lanzinger wrote.

The full opinion is available at this link. And as this final conclusion paragraph highlights, there are lots of interesting elements of the decision that all sentencing fans will want to check out:

Treating a juvenile adjudication as an adult conviction to enhance a sentence for a later crime is inconsistent with Ohio’s system for juveniles, which is predicated on the fact that children are not as culpable for their acts as adults and should be rehabilitated rather than punished.  It is widely recognized that juveniles are more vulnerable to outside pressures, including the pressure to admit to an offense.  Under Apprendi, using a prior conviction to enhance a sentence does not violate the constitutional right to due process, because the prior process involved the right to a jury trial.  Juveniles, however, are not afforded the right to a jury trial.  Quite simply, a juvenile adjudication is not a conviction of a crime and should not be treated as one.

August 25, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sixth Circuit panel concludes Michigan sex offender registration amendments "imposes punishment" and thus are ex post unconstitutional for retroactive application

In a significant panel ruling today, the Sixth Circuit has concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here) that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively.  Here is some of the concluding analysis from the unanimous panel decision reaching this result:

So, is SORA’s actual effect punitive?  Many states confronting similar laws have said “yes.”  See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008).  And we agree.  In reaching this conclusion, we are mindful that, as Smith makes clear, states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment.  But difficult is not the same as impossible.  Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.

A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.  SORA brands registrants as moral lepers solely on the basis of a prior conviction.  It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.  It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

We conclude that Michigan’s SORA imposes punishment.  And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased.  Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause.  As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice.  Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton).  It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89; accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

I was involved with some amicus briefing in this case, so I am a bit biased when saying I think the Sixth Circuit got this one right.  But I do not think I am showing any bias when asserting this ruling is a big deal (and could become an even bigger deal if Michigan seeks a further appeal to the full Sixth Circuit or to the US Supreme Court).

August 25, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21)

"More Bang for Your Buck: How to Improve the Incentive Structure for Indigent Defense Counsel"

The title of this post is the title of this notable new empirical paper authored by Benjamin Schwall that I just noticed on SSRN. Here is the abstract:

The payment system and related incentive structure can have a major effect on an attorney’s behavior and this impact is somewhat predictable.  Using data from the South Carolina Commission on Indigent Defense, we provide some evidence of how paying attorneys a flat fee can impact their behavior compared to paying them an hour hourly rate.  Unsurprising, the effect is that attorneys put forth less effort when being paid a flat fee.  It is important to recognize the trade-offs between controlling costs and providing effective representation that any payment system possesses. Using economic theory and a simple model, we discuss the various benefits and drawbacks of the different payment systems that are common for indigent defense attorneys.  Finally, we discuss how the different payment systems can be improved to better align the attorney’s interests with the State’s interests.

August 25, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

You be the state legislator: how should Ohio respond to new data showing drug overdose deaths reaching another record high in 2015?

Png;base6493e59080e74e719cThe question in the title of this post is the question I plan to be asking in coming days to students in both my first-year Criminal Law class and in my upper-level Sentencing Law & Policy class.  It comes to mind in response to the "breaking news" alert I received from my local Columbus Dispatch linking to this new article reporting on new data under the headline "Drug overdose deaths pushed to another record high in Ohio." Here are some data details:

Drug overdoses took the lives of a record 3,050 Ohioans last year, more than one-third from fentanyl, a super-potent opiate often mixed with heroin. Across Ohio, someone died from a drug overdose every two hours and 52 minutes on average all year long in 2015.

The annual report on unintentional drug overdose deaths released today by the Ohio Department of Health showed the toll from all drugs was 20.5 percent higher than 2014, a disappointment to state officials who have been working for years on many fronts to curb the drug-related carnage.

While heroin deaths rose, fatalities from fentanyl, a synthetic narcotic 30 to 50 times more potent than heroin and up to 100 times stronger than morphine, soared to 1,155 last year, more than double the 503 deaths in 2014. The vast majority involved illegally produced fentanyl, not the prescription drug commonly given to end-stage cancer patients.

The 2015 deaths bring the total to nearly 13,000 overdose victims in the state since 2003. The report was compiled from Ohio's 88 county coroners....

"These are 3,050 tragedies that could have been avoided," said Tracy Plouck, director of the Ohio Department of Mental Health and Addiction Services. "It's very disappointing, but we have a responsibility as leaders in the state to continue to press forward ... This absolutely does not mean we have given up."

Gov. John Kasich, who often spoke passionately about the drug epidemic during his Republican presidential campaign, said in an interview that the state continues "playing a rear guard action ... But I believe we’re making progress. I feel we’re doing every thing we possibly can. We're not looking the other way. We're not putting our heads in the sand. "This is not about politics. This is about life."

Kasich said the drop in opiate pain pills prescriptions is a good sign because people usually become addicted to painkillers before moving to heroin. “We knew when we started this battle five years ago that progress wouldn’t be easy, but we are well prepared to stay on the leading edge of fighting this epidemic thanks to the multi-faceted strategies we have put into place," said Dr. Mark Hurst, medical director of the Ohio Department of Mental Health and Addiction Services.

Public Safety Director John Born said the higher numbers "are motivating because we see the impact of drugs on the quality of life and life itself." Born said troopers already have seized 118 pounds of heroin this year, compared to a total of 304 pounds seized from 2010 to 2015. The report showed Franklin County overdose deaths soared to 279 last year, a 42 percent jump from 196 in 2014. The county leads the state in heroin seizures by the Highway Patrol, 76 pounds from 2010 through 2015.

People 25 to 34 years old were the most common fentanyl victims, with men twice as likely to die from an overdose. Every drug category except prescription pills, alcohol and "unspecified" rose in 2015 compared to 2014. Heroin deaths rose to 1,424 from 1,196 (up 19 percent); prescription opioids (667 from 672, down 1 percent); benzodiazepines (504 from 420, up 20 percent); cocaine (685 from 517 (up 32 percent); alcohol (380 from 383, down less than 1 percent); methadone (108 from 103, up less than 1 percent); hallucinogens (61 from 49, up 24 percent); barbiturates (19 from 6, up 200 percent); and other unspecified (194 from 274, down 29 percent).

Hamilton County reported the most fentanyl-related deaths with 195, followed by Summit, 111; Butler, 104; Montgomery, 102; Cuyahoga, 83; Clermont, 54; Clark, 48; Lucas, 41; Franklin, 40; Stark, 26; Trumbull, 25; Lorain, 21, and Greene, 20.

Dr. Mary DiOrio, medical director of the Department of Health, said the state has taken several steps in the drug fight, including establishing the Start Talking education program aimed at young people, increasing law enforcement efforts, encouraging physicians and pharmacists to use the online drug monitoring system, and creating opioid prescribing guidelines.

The state last year asked the federal Centers for Disease Control and Prevention to step in to study the fentanyl problem. Officials said they will take further action this year, asking state lawmakers to pass tougher laws for selling fentanyl, increasing money for naloxone, expanding treatment options, and adding drug courts.

As regular readers of my blog Marijuana Law, Policy & Reform know, one possible (and surely controversial) legislative response to this problem would be to explore more rigorously and expeditiously whether legalization of marijuana might be a port to consider in this deadly drug overdose Ohio storm.  As noted in this post, well over six month ago, US Senator Elizabeth Warren wrote to the Center for Disease Control and Prevention to request more research on wether marijuana reform might help address the national opiate abuse problem.  I would be very eager to see Ohio official following-up on this front so as to more fully explore the prospect that has been shown in some existing research that making marijuana more readily and legally accessible can contribute usefully to the needed "multi-faceted strategies" for dealing with this pressing public health problem 

Some recent recent related posts from my blogs:

August 25, 2016 in Drug Offense Sentencing, National and State Crime Data, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

Massachusetts judge's probation sentence for sexual assault gives east coast its own Brock Turner

This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California.  Here are the details:

The two women were asleep on a bed after drinking at a party when they were sexually assaulted.  A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.

The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus.  The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.

Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday.  Mr. Becker also would have had to register as a sexual offender.

But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.

According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”

“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.

After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.

Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents.  According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.

In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.

The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators.  In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation.  He also must register as a sex offender.  Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....

Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege.  Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”

“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said.  “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”

August 25, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, August 24, 2016

Should I feel guilty finding delicious ironies in reports of condemned California murderers killing themselves with smuggled illegal drugs?

The question in the title of this post is my sincere uncertainty concerning my reaction to this new lengthy Los Angeles Times article headlined "Illegal drugs are flowing into California's most guarded prisons — and killing death row inmates."  Here is how the article starts and ends:

Condemned murderer Michael Jones was acting strangely and profusely sweating when guards escorted him in chains to the San Quentin medical unit that doubles as the psych ward on death row.

“Doggone, I don’t think you’re ever going to see me again,” he told a fellow inmate, Clifton Perry.  Hours later, Jones was dead.  Toxicology tests later found that he had toxic levels of methamphetamines in his blood.

The condemned inmates on California's death row are among the most closely monitored in the state.  Death row’s 747 inmates spend most of their time locked down, isolated from the rest of the prison system under heavy guard with regular strip searches and checks every half-hour for signs of life.  Still, six death row inmates died between 2010 and 2015 with detectable levels of methamphetamines, heroin metabolites or other drugs in their system, according to Marin County coroner records.

Three of them had toxic levels of drugs, including one in whose intestines were found five snipped fingers of a latex glove, each packed with methamphetamine or marijuana. He had overdosed when they burst.  A 70-year-old man among the three died of acute methamphetamine toxicity. He left a stash of marijuana in his cell. State psychological reports and court files document at least eight non-fatal drug overdoses that required death row inmates to be hospitalized during this period.

Jones' death was reported as a suicide. In the psych ward, he attempted to strangle himself with an electrical cord.  He was cut free by officers but died 10 minutes later. The coroner's report showed that Jones bore signs of chronic drug abuse. State corrections officials declined to discuss the case or provide data on drugs found on death row — at first citing that investigation and then citing a wrongful death claim filed by Jones’ family.  The department provided a statement saying the prison has thwarted past attempts by visitors to bring drugs into San Quentin.

According to data from the U.S. Bureau of Justice Statistics and the state prison medical office, the drug-related death rate in California prisons is seven times higher than that of prisons in the rest of the country. “Drugs have considerable value inside prison and so some inmates have a very strong incentive to procure them," the statement said. "Regardless of the security level of the inmate, the presence of any contraband items is concerning to us.”

The overdoses on death row mirror the larger problem with drugs in California’s prison system as a whole.  From 2010 to 2015, 109 inmates died of overdoses, according to state figures.  California's prison drug trade is notoriously robust.   The drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country, according to data from the U.S. Bureau of Justice Statistics and the state prison medical office.

Reports to the Legislature show that as many as 80% of inmates in some cell blocks tested positive for illegal substances in 2013. The same year, the state's prison watchdog, the independent Office of Inspector General, chastised corrections officials for making "very little or no effort" to trace the source of drugs when inmates overdose....

Because of the high security on death row, some who have worked at San Quentin suspect that the drug trade is abetted by prison staff. During his tenure as a death row psychologist, Patrick O’Reilly said in an interview that he discovered a psychiatric technician bartering alcohol and amphetamines for inmates’ prison-prescribed opiates. Similarly, the inspector general's office reported that a death row officer in 2011 was accused of buying morphine from condemned inmates. The report states she paid with ramen noodles and candy.

Outside of death row, the trade takes place on an enormous scale.  This spring, federal agents busted a Southern California prison narcotics ring in which a state drug counselor allegedly smuggled $1 million of meth and heroin sealed in potato chip bags to inmates in her treatment group.  The state prison guard union has long raised objections to vigorous screening of guards as they arrive and leave work, noting that the state would have to pay large amounts for the extra time that would add to each shift. The union "supports the department's efforts to keep drugs out of prison," said spokeswoman Nichol Gomez. "Anyone who brings contraband inside prisons should be held accountable. ... The majority of correctional officers take their oath seriously. "

All of the men on San Quentin’s death row are there for murder.  Many arrived on death row with long histories of drug addiction.  Most killed their victims during robberies or gang fights, but the population also includes psychopaths and serial killers.  Until a psychiatric unit for the condemned was opened in 2014, severely mentally ill and psychotic inmates were housed with the rest of the condemned.

Former San Quentin Warden Jeannie Woodford, state prison director under Gov. Arnold Schwarzenegger, said extreme idleness and the cramped, ill-suited confines of death row complicate drug abuse.  “Idleness is such a problem and it leads people to self-medicate,” Woodford said.

Although guards are supposed to randomly search cells each shift as a curb against drugs, weapons and other contraband, one former San Quentin corrections officer said staffing issues have made it impossible for guards to do all the required checks. Moreover, the amount of property that condemned inmates accumulate over decades of confinement clutters many cells. "What is said and what is done are two different things," said Tony Cuellar, a former San Quentin officer. In that environment, Cuellar said, officers "picked and chose" when to try to confront a condemned drug user.

There are soooooo many ironies in this report, I do not know where to start. In an effort to keep them straight (and to encourage comments about which irony is most remarkable), I will provide a numbered list of just some of the ironies that jump out at me:

  1. California has not conducted an execution of a condemned murderer in over a decade due in large part to the incompetence of prison officials and others in California in acquiring and handling drugs involved in its planned execution protocols ... and yet corrupt prison officials seem to be able to indirectly help condemned inmates access the drugs with which they are killing themselves.
  2. Many abolitionist have complained and litigated aggressively to try to prevent prison officials in many states nationwide from finding ways to "smuggle" into the state the drugs needed to conduct lawful (painless?) official executions ... and yet California prison officials are smuggling drugs directly to condemned inmates in ways that functionally facilitate what are essentially unlawful (painful) self-executions.
  3. This article suggests that we should be seriously concerned that the "drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country" ... and yet that (stunningly high) drug-related death rate in California prisons is still almost half of the drug-overdose death rate  — reported to be at over 32 deaths from drug overdose per 100,000 inhabitants — according to the latest figure in the state of West Virginia.
  4. With a death row population of less than 1000, just a single overdose per year on California's death row is a relatively high rate ... and yet the reality that so many arrived "on death row with long histories of drug addiction ...  [and murderered during] robberies or gang fights" surely suggests the real possibility that a many of those unfortunate souls now condemned to die in California have lived a lot longer on death row than they might have lived on the mean streets of California.

I could go on, but I already am starting to feel mean and crass about how I am responding to this new report from California's always notable death row.

August 24, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Prisons and prisoners, Who Sentences? | Permalink | Comments (7)

Tuesday, August 23, 2016

"Racial Origins of Doctrines Limiting Prisoner Protest Speech"

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

This article examines the racial origins of two foundational cases governing prisoner protest speech to better understand their impact in light of the Black Lives Matter movement.  Two Supreme Court cases provide the primary architecture for the regulation of prisoner or detainee speech . The first, Adderley v. Florida, is (mis)interpreted for the proposition that jails (and by analogy, prisons) are non-public spaces.  Under First Amendment doctrine, non-public spaces are subject to heightened regulation and suppression of speech is authorized.  The second, Jones v. North Carolina Prisoners’ Labor Union, Inc., amplifies the effect of Adderly and prohibits prisoner solicitation for union membership.  Together, these two cases effectively provide broad discretion to prison administrators to punish prisoners and detainees for their protest speech.

Neither Adderley nor Jones acknowledge the racial origins of the cases. Holdings in both cases relied on race-neutral rationales and analysis and yet, the underlying concerns in each case appear tied to racial concerns and fears.  Thus this Article is a continuation of a broader critical race praxis that reminds us that seemingly objective and neutral doctrines themselves may incorporate particular ideas and notions about race.  Today’s protesters face a demonstrably different doctrinal landscape, should they protest within the prison or jail walls.  While the content of speech by a “Black Lives Matter” activist may not change, the constitutional protection afforded to that speech will be radically different depending on where she speaks.

August 23, 2016 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty

FairJustIn this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   I received an email this morning highlighting a new big project and report from the the FPP.  Here are excerpts from the email:

Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it.  Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015.  Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....

The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments.  The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability.  The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.

In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:

  • Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
  • Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
  • Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
  • Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.
  • Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.
  • A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.

Additional findings:

  • Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.
  • Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color.  In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
  • The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.
  • Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts.  In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent. 

Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).

August 23, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Would it be useful for President Obama to "formally declare an end" to the drug war?

The question in the title of this post is prompted by this New Yorker commentary authored by Jelani Cobb and running under this full headline: "A Drawdown on the War on Drugs: The President’s commuting of sentences and an end of the use of private prisons signal potentially meaningful changes in how the United States handles drug abuse." Here are the closing two paragraphs that lead to the question:

There is an additional gesture that the President could make: he could formally declare an end to the war.  In 1996, when Bill Clinton announced that “the era of big government is over,” his words were both aspirational and a reflection of policies favored by Republicans and a growing number of centrist Democrats.  There’s an emerging and similarly bipartisan consensus for changing the policies that have led to mass incarceration.  For a sitting President to declare a conclusion to the most disastrous domestic policy of our time might, even if premature, perhaps mark at least the beginning of its end.

Last year, the Justice Department reported the first decline in the federal prison population in thirty-three years, and a meaningful, if incremental, change in the way that we approach the problem of drug abuse in the United States.  The armchair forecast holds that the President’s legacy will be anchored by his handling of two wars abroad.  But history may have equal regard for the means by which he handles the one he inherited at home.

I share this author's sense that it could be beneficial for Prez Obama to assert formally that the drug war is over.  At the same time, with US government spending and debt at historic levels 20 years after Prez Bill Clinton asserted that “the era of big government is over,” it is not obvious that any policy realities are certain (or even likely) to enduringly reflect such political rhetoric.

August 23, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, August 22, 2016

"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"

The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young.  Here are excerpts:

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.”  But there are two crucial legal differences between the cases, which render the comparison meaningless....

Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term  —  not the recall campaign’s unsupported claims of judicial bias....

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient.  The facts in this case, and the injuries to the victim, are upsetting  —  but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney.  Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.” 

One of the recall campaign’s main proponents  —  Professor Michelle Dauber, who teaches at our law school   — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge....  This insinuation turns law and policy on its head.  For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants.  The false personal accusations against Judge Persky distract from real understanding of structural inequalities.  In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class.  For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions.  Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers  —  like disciplinary policies that have created a “school-to-prison pipeline”  —  impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes.  By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative.  As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color.  Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems.  As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky.  By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Some prior related posts:

August 22, 2016 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Noticing that the Big Apple has lately been a big nothing when it comes to major criminal justice reforms

These two new article appearing in today's New York Times provides a useful reminder that New York City and state have lately not been progressive vanguards when it comes to recent criminal justice reforms:

Here are snippets from the first article which highlight reasons why repeated and persistent criminal justice reform can often be such a significant "uphill climb" even for reform-minded political leaders:

Lawmakers across the country are experimenting with a range of criminal justice reforms, driven by protests, a reckoning with the effects of mass incarceration and anger over police killings.  But this legislative momentum has mostly stalled in an unexpected place: New York, a state led by Democrats that outlawed the death penalty more than a decade ago and did away with the last of the Rockefeller Drug Laws, which mandated strict sentences for low-level drug offenses, in 2009.

There has been hardly any legislation under the rubric of criminal justice reform passed in Albany since the governor, Andrew M. Cuomo, a Democrat, came to office in 2011, or in New York City since the Democratic mayor, Bill de Blasio, and many members of the City Council came to office in 2014 promising to overhaul police-community interactions....

Their reluctance is, in some ways, tethered to an enduring unease about public safety in New York, particularly in New York City.  Statistics show street crime at historic lows, but many people say in polls that crime is worsening. Any effort to place new limits on law enforcement or to reduce punishments could prove perilous for politicians should a spike in crime occur.

“We have to be fair to victims of crime,” State Senator Patrick Gallivan, a Republican who leads the Crime Victims, Crime and Correction Committee, said in defending the state’s unusually low age of criminal responsibility, 16. “And we need to hold people accountable.”  Though Governor Cuomo has backed raising the age to 18, the legislation has not moved forward. New York remains the only state other than North Carolina to routinely prosecute 16-year-olds as adults.

In New York City, the Police Department has successfully opposed efforts to decriminalize certain petty offenses or put legal limits on a variety of police behaviors. The Council adopted a new system for handling some minor crimes, but left the decision of when to use that system to the police. A court-ordered body-camera program, which a federal judge mandated in 2013 after finding that the police had engaged in unconstitutional street stops of black and Hispanic residents on a vast scale, has been repeatedly delayed....

If New York’s recent interest in legislating criminal justice reform lags that of other states, it is quite likely because New York had something of a head start. It is often cited by some advocates as a model.

The state has no death penalty.  The state has slashed its prison population by some 20,000 inmates from its high point in 1999, in large part because of the repeal of the Rockefeller laws. It now has an incarceration rate well below the national average. In the last five years, 13 prisons have closed. “We changed the paradigm long ago,” Alphonso David, the counsel to Mr. Cuomo, said.  “The changes that other states are now making, we’ve already made.”...

Elsewhere in the country it is often Republicans, citing the need to reduce government spending, who are providing momentum for such reforms.  That dynamic is particularly striking in the South, a region known for its high rates of incarceration and frequent executions.  A number of the laws aimed at reducing prison rates in recent years have been passed in the South or in states elsewhere with Republican-controlled legislatures.

August 22, 2016 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Would the "the first liberal Supreme Court in a generation" really reshape the criminal justice system in the United States?

The question in the title of this post is prompted by this notable new Vox article headlined "How the first liberal Supreme Court in a generation could reshape America." Interestingly (and appropriately?), the article talks a lot and at length about sentencing issues, and thus it is this week's first must-read. And here are excerpts:

Odds are that very soon, the Supreme Court will become something it hasn’t been in nearly 50 years: made up of a majority of Democratic-appointed justices.

Ever since Abe Fortas’s resignation in 1969, the Court has either been split down the middle or, more often, made up primarily of Republican appointees. Some of those Republican appointees nonetheless turned out to be liberals, but even taking that into account, the Court hasn’t been majority liberal since 1971, when William Rehnquist and Lewis Powell joined....

The unfilled vacancy of Antonin Scalia’s seat combined with a Hillary Clinton victory in November could set the Court on a new course. Merrick Garland, nominated by Barack Obama in March, has yet to face a vote. But though Senate Republicans have denied they’ll confirm him in the lame-duck session this winter, should Hillary Clinton win they might be tempted to confirm him lest she name a more liberal nominee. Either way, the result is a moderate to liberal justice in Scalia’s seat, moving the Court appreciably to the left.

Clinton also stands a good chance of replacing the moderate-to-conservative Anthony Kennedy (who recently turned 80) with a reliable liberal, and keeping Ruth Bader Ginsburg (83 and a two-time cancer survivor) and Stephen Breyer’s (78) seats in liberal hands. The result would be a solid 6-3 liberal majority of a kind not seen in many decades....

A liberal Court could end long-term solitary confinement. It could mandate better prison conditions in general, making it more costly to maintain mass incarceration. It could conceivably end the death penalty. It could uphold tough state campaign finance rules and start to move away from Citizens United. It could start to develop a robust right to vote and limit gerrymandering. It could strengthen abortion rights, moving toward viewing abortion rights as a matter of equal protection for women....

Let’s start with perhaps the biggest thing that could happen under a liberal Court, perhaps even a Court where another conservative replaces Scalia: the end of long-term solitary confinement. In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death penalty case in which the Court (joined by Kennedy) sided against the defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing jeremiad against the evils of solitary confinement, in which the defendant had been held for most of his more than 25 years in prison....

The implication was clear: Kennedy wanted advocates to bring a case challenging the constitutionality of long-term solitary confinement on the grounds that it constitutes cruel and unusual punishment under the Eighth Amendment. He basically dared them to, and suggested that if such a case reached the Court, he’d be inclined to limit the practice. With four reliable liberals already on the Court and likely to join him, it’s quite likely that such a case would end with solitary confinement sharply limited....

Solitary confinement is perhaps the most shockingly cruel condition of imprisonment in the United States, but the sheer scale of mass incarceration is also an issue in need of addressing. And because federal courts have the ability to affect policy at both the federal and state level, they can have considerable influence on the incarceration rate going forward.... "The new focus of prison conditions, which could be a real game changer in my view, is the intersection of overcrowding with mental and physical health burdens. The real game changer in terms of the current prison population is how disease-burdened it is," [Professor Jonathan] Simon says. "That could be pretty far-reaching because states have to contemplate the consequence of incarcerating so many aging prisoners."...

One way in which the courts could be more receptive to directly challenging sentences, she says, is by starting to take "collateral consequences" into account. That’s the technical term for the myriad ways that criminal convictions, and in particular sex crime convictions, can hamper defendants’ lives in the long term. That includes restrictions on where they can live after they’re released from prison, bans on government employment and benefits like public housing, inclusion on sex offender registries, bans on gun purchases and voting, and so forth....

Almost as explosive as Kennedy's 2015 concurrence was a dissent filed by Stephen Breyer and joined by Ruth Bader Ginsburg that same year. The case, Glossip v. Gross, resulted in a 5-4 ruling affirming that the particular drug cocktail Oklahoma currently uses in executions doesn't violate the Eighth Amendment. One dissent, by Sonia Sotomayor and joined by the Court's other three liberals, narrowly argued against the specific drugs. Breyer's dissent took aim at capital punishment as a whole....

It’s telling that neither Sotomayor nor Elena Kagan, the two other liberals on the Court, joined Breyer’s opinion. And it’s hard to imagine Merrick Garland, who was one of the prosecutors who successfully sought to see Timothy McVeigh executed, declaring his own past actions categorically unconstitutional. But if Garland’s nomination fails and Clinton picks a less tough-on-crime nominee for Scalia’s seat, or if Kennedy leaves the Court during her presidency, it’s conceivable there would exist five votes for outright abolition of the death penalty.

"I would not be surprised to see Sotomayor and Kagan supportive of [abolishing the death penalty]," Simon says. "Kennedy is a harder call. The reason I'm somewhat optimistic about including Kennedy goes back to his interest in dignity. The strongest of the opinions in Furman" — the 1972 case that briefly abolished capital punishment — "was William Brennan's, and Brennan based it most directly on human dignity. He argued the Eighth Amendment bans any punishment you can't carry out without respecting the dignity of those being punished." Kennedy leaned heavily on the importance of dignity in Brown v. Plata, the California prison overcrowding case....

One other death penalty–related case Simon thinks the Court could amend or overturn, which could have widespread implication outside this specific issue area, is McCleskey v. Kemp, a 1987 case in which the Court ruled 5-4 that a death sentence for a black defendant could not be overturned due to the state of Georgia's hugely disproportionate imposition of capital punishment on African Americans. The effect of that was to foreclose challenges to the criminal justice system premised on its discriminatory effect — the Court required that plaintiffs show that discrimination was intended, not merely that the system was in effect discriminating against African Americans.

"It's been terrible for equal protection law generally. Criminal justice is run through with very disproportionate racial practices that are very difficult to prove as discrimination," Simon says. "Overturning McCleskey, and a companion case a few years later, could be a really important change agent both in unleashing the potential for trial court challenges to racially disproportionate criminal justice practices of all sorts, and perhaps ending the death penalty in those states where it seems most firmly rooted, like Texas and Florida."

August 22, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, August 21, 2016

After court reversal of broader order, Virginia Gov to restory voting rights to 13,000 former felons on a "case-by-case" basis

This Washington Post article, headlined "Virginia’s McAuliffe to announce restoration of voting rights to 13,000 felons," report on the latest executive clemency move by a Governor eager to restore voting right after getting in trouble with his state's Supreme Court following his first bold effort. Here are the details and context:

Gov. Terry McAuliffe will announce Monday that he has restored voting rights to 13,000 felons on a case-by-case basis after Republicans and state Supreme Court justices last month stopped his more sweeping clemency effort.

McAuliffe’s planned action, confirmed by two people with knowledge of it, comes about a month after the Supreme Court of Virginia invalidated an executive order the Democratic governor issued in April. With that order, McAuliffe restored voting rights to more than 200,000 felons who had completed their sentences. McAuliffe said his original order would move Virginia away from a harsh lifetime disenfranchisement policy that hits African Americans particularly hard.

Republicans, incensed that it covered violent and nonviolent offenders alike, said the move was really a bid to add Democrat-friendly voters to the rolls ahead of November’s presidential elections, when the governor’s close friend and political ally, Hillary Clinton, will be on the ballot. Republicans also found the McAuliffe administration had mistakenly restored rights to 132 sex offenders still in custody and to several convicted murderers on probation in other states.

Contending that the governor had overstepped his authority by restoring rights en masse rather than case by case, GOP legislative leaders took him to court and won. Since 13,000 of the 200,000 felons had already registered to vote, the court ordered the state to once again put their names on its list of banned voters.

Immediately after that ruling, McAuliffe vowed to use an autopen to individually sign orders restoring rights. He promised to do the first 13,000 within a week and all 200,000 within two. “By the end of this week, I will have restored the rights of all 13,000,” McAuliffe declared last month.

Since then, the McAuliffe administration has acknowledged unspecified holdups but declined to provide a new timetable for restoring rights. The first hint came Friday, with the release of McAuliffe’s official schedule. At noon Monday, it said, he will appear at the Civil Rights Memorial on Capitol Square “to make major restoration of rights announcement.” A McAuliffe spokeswoman, Christina Nuckols, declined to provide more information.

McAuliffe will announce that he has restored voting rights to the 13,000 felons, making them free to register once again, according to the two people, who spoke on the condition of anonymity because they were not authorized to disclose his plans. McAuliffe also will lay out his plans for restoring rights to the remainder of the 200,000. A substantial majority of Virginians approve of McAuliffe’s original effort to restore felon rights, although they are closely split on his motivations, according to a new Washington Post poll....

Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, said she would cheer another restoration plan — particularly one that restores rights before October, the registration deadline for voting in November. “We think it’s the right thing to do, and we’re hopeful it will get done in time for people to be able to register before the deadline,” she said.

Del. Robert B. Bell (R-Albemarle), a 2017 candidate for state attorney general who has led the charge against McAuliffe’s order, said he would watch any new restoration efforts closely because of the problems with the original order. “Given that his first order was unconstitutional and included a noncitizen sex offender in Peru, we will certainly want to review whatever he does on Monday very carefully,” Bell said.

Prior related posts:

August 21, 2016 in Clemency and Pardons, Collateral consequences, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data

U.S._incarceration_rates_1925_onwardsA couple of folks have pointed me to this recent interesting analysis at Wonkblog by Keith Humphreys under the headline "Black incarceration hasn’t been this low in a generation." Here are some of the data and discussion that explain the headline (with links from the original):

The African American imprisonment rate has been declining for many years. Indeed, the likelihood of African American men and women being in prison today is lower than it was a generation ago ... [because the] rate of black male incarceration in the U.S. has declined by 23 percent from a recent peak in 2001 [and the] rate of incarcerated black women has decreased 49 percent since the recent peak of 1999....

In the 1990s, the explosive growth in imprisonment that began in the mid-1970s was slowing but still underway, affecting people of all races but African Americans worst of all.  But around the turn of the millennium, the African American imprisonment rate began declining year after year....

At the end of 2014, the African American male imprisonment rate had dropped to a level not seen since early 1993. The change for African American women is even more marked, with the 2014 imprisonment rate being the lowest point in the quarter-century of data available. It can’t be overemphasized that these are trends unique to blacks rather than being part of a broader pattern of de-incarceration: The white imprisonment rate has been rising rather than falling.

A 23 percent decline in the black male imprisonment rate and a 49 percent decline in the black female imprisonment rate would seem to warrant some serious attention. But if you point out to the average person or even a seasoned criminologist that the United States is at a more than 20-year low in the black incarceration rate, you are likely to be met with stunned silence.

These data should not be all that surprising for those who realize that the years from 1970 to 2000 marked the modern period with the most significant increase in incarceration rates for all Americans and particularly for African Americans.  Since 2000, the overall US prison population has not grown much, and overall prison populations and the rate of incarceration has even turned downward in recent years.  I believe that, during this more recent period of flat or declining prison growth, the emphasis in long prison terms less for drug offenders than for violent/sexual offenders has contributing to altering the racial mix of prison populations (perhaps epsecially in big states like California and Texas that have made big cuts in their prison populations).

That all said, these data should not obscure the reality that incarceration rates for black males remain extraordinarily high both in absolute and in relative terms throughout the United States.  Moreover, digging into state-by-state incarceration data highlights that some perhaps unexpected states rise to the top of an accounting of the rate and relative levels of minority incarceration.  A few months ago (as noted here), The Sentencing Project released this interesting report providing state-by-state analyses of the racial data for state prison populations, and here were some of the report's "Key Findings":

August 21, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

"Plea Bargaining and Price Theory"

The title of this post is the title of this interesting looking new paper authored by Russell Covey now available via SSRN.  Here is the abstract:

Like other markets, the plea bargaining market uses a pricing mechanism to coordinate market functions and to communicate critical information to participants, information that permits rational decisionmaking in the face of uncertainty.  Because plea bargaining play such a prominent role in the administration of criminal justice, and because the pricing mechanisms inherent in plea bargaining can — like pricing mechanisms generally — both explain past conduct by market participants and predict future conduct, close scrutiny of the pricing mechanisms at work in plea bargaining is amply justified.

This Article explores several features of the plea bargaining system in light of economic insights borrowed from basic price theory.  That analysis suggests several structural flaws of the plea market that could, in theory, be amenable to reform efforts.  Those flaws include an oversupply of penal leniency, overreliance on wholesale pricing mechanisms, and a devaluation of factual innocence from procedural time-constraints on the effective use of exculpatory evidence.

August 21, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Detailing the inefficacy of sex offender residency restrictions in Milwaukee

MJSOFFENDER21G2The Milwaukee Journal Sentinel has this lengthy new article about the problems created by a residency restriction for sex offenders in place in Wisconsin's largest city. The article is headlined "Sex offender ordinance hasn’t worked as planned, putting public at greater risk," and here are excerpts:

In the two years since Milwaukee leaders enacted the residency ordinance as a way to push sex offenders out of the city, little has gone as planned. Rather than reducing the number of sex offenders, the ordinance has put more than 200 of them in the street and failed to keep new offenders from moving into the city, a Journal Sentinel analysis has found.

Experts say the increase in homeless sex offenders could put the public at greater risk. Studies show that without a permanent home, the lives of offenders become more unstable, increasing the chance they will re-offend. “Somebody might feel safer today because this one person doesn’t live on their block. But as a community, we are not safer, and this is not sustainable,” said Holly Patzer, executive director of Wisconsin Community Services, a nonprofit advocacy group focused on criminal justice and public safety.

The ordinance bans many sex offenders from living within 2,000 feet of areas where children are commonly found, such as schools, parks and day care centers. In Milwaukee, that means hundreds of sex offenders are limited to 117 possible housing units. And even those 117 units might not be available to rent or buy.

When the Milwaukee Common Council voted 8-6 to approve the ordinance in 2014, supporters said it would protect the public by pushing more offenders out of the city and into the suburbs, where a disproportionately low number of the county’s offenders lived. Supporters also argued the extremely restrictive rules would send a message to lawmakers in Madison: that Wisconsin needs a statewide sex offender residency law, rather than a patchwork of local ordinances.

But an analysis of state and Milwaukee sex offender registries shows those goals haven’t been achieved since the vote:

■ The number of homeless sex offenders in Milwaukee County has spiked, rising from about 15 in early 2014 to 230 this summer. Milwaukee police officials warned in 2014 that homelessness would increase, but a lead sponsor of the ordinance, Ald. Tony Zielinski, said he didn’t believe them.

■ Milwaukee County suburbs continue to house a disproportionately low share of the region’s sex offenders. In fact, their proportion — about 10% of county offenders — is virtually unchanged since the ordinance was passed.

■ Hundreds of offenders deemed “affected” by the ordinance — and thus, effectively banned from living in Milwaukee — continue to reside in the city, flouting the ordinance and accepting periodic fines.

■ The ordinance hasn’t prodded the Legislature to enact a statewide sex offender residency law, though there is renewed optimism it could happen soon.

Ald. Michael Murphy, who sympathized with supporters of the 2014 ordinance but voted against it, voiced concern at the time that the measure would increase homelessness among sex offenders and cause a greater threat to public safety. Murphy said he’s “still very fearful” about the number of homeless offenders. “My concern is that these offenders will re-offend, and everybody will be pointing fingers,” he said.

Although the data suggests the ordinance hasn’t worked as expected, some local leaders said they have no plans to make any changes. Zielinski said the ordinance has protected residents and stopped some sex offenders from moving into local communities. However, he could not provide specific examples to support his view.

Zielinski also accused the Wisconsin Department of Corrections of “fudging the numbers” of homeless Milwaukee offenders. Likewise, he didn’t provide evidence to prove the allegation, saying only that the department has been slow to provide him with accurate data in the past. “I’d have to check those numbers, but I know we have prevented a number of serious sex offenders from moving to Milwaukee,” Zielinski said. “The only thing I can tell you for sure is that Milwaukee did the right thing. Otherwise, we would have continued to be a dumping ground for state sex offenders.”...

[In 2014] four aldermen proposed their own ordinance: sex offenders who met certain requirements couldn’t live within 2,000 feet of schools, day care centers, parks, recreational trails, playgrounds or areas where children are known to congregate. Any offender in violation could be fined $1,000 to $2,500 per day. The aldermen argued the ordinance was the city’s best hope of forcing state officials, who had largely ignored their concerns, to pass a statewide residency law. “Although this may be seen as a punitive measure, I’m hoping that this sends a shot across the bow to the ones who really control the whole system and methodology of how we place sex offenders (in) the state of Wisconsin,” then-Ald. Joe Davis Sr. said.

But officials from the state Department of Corrections and Milwaukee Police Department warned that rather than moving to the suburbs, many sex offenders would stay in the city and become homeless. In turn, they said, it would be difficult to track offenders and recidivism rates could rise. Then-police Inspector Carianne Yerkes told members of a council committee that she worried the city’s ordinance wouldn’t prod state leaders into action. “I don’t know how long we can wait for that, and I’m afraid of what will happen in between,” said Yerkes, who has since been promoted to assistant chief.

Ultimately, the council passed the ordinance, Mayor Tom Barrett signed it into law in July 2014, and the rules went into effect in October 2014. Two years later, the city is seeing the practical effects of the ordinance:

■ The percentage of homeless sex offenders in Milwaukee County has jumped from less than 1% in early 2014 to 9% in mid-2016, according to an analysis of Department of Corrections data. Most homeless offenders are still on GPS monitoring and have to check in weekly with the state, but they have no permanent residence.

■ Sex offenders haven’t moved out to the suburbs en masse, doing nothing to dispel the “dumping ground” perception. About 10.5% of the county’s offenders live in the suburbs now, compared with 11% in early 2014.

■ The city continues to add hundreds of new sex offenders, despite the new rules. Department of Corrections data shows that at least 380 Milwaukee sex offenders have either moved into the city or been added to the registry since early 2014. The city has about 100 more offenders today than it did in 2014....

The ordinance hasn’t forced sex offenders out of the city for two primary reasons: most sex offenders are exempt from the rules, and others have willfully violated them. Milwaukee Police Department data shows about three-quarters of offenders living in the city are exempt because they were grandfathered in, live with family or aren’t required to follow the ordinance because of the nature of their crimes. The Common Council wrote those exemptions into the ordinance.

Among the 620 offenders in the city who aren’t exempt, about 460 have city addresses, putting them in violation of the ordinance. The remaining 160 are homeless or don’t list addresses. Milwaukee police have issued tickets to most of the 460 offenders, generally fining them about $1,000 to $1,300 per incident. Dozens of other offenders have received warnings or notices of violation.

“When MPD discovers an offender in violation, enforcement action is taken,” the police department said in an email. But those citations — most of which were issued between December and June — haven’t been enough to force hundreds of offenders to leave the city. Several offenders have been issued three citations, yet they continue to reside in Milwaukee.

August 21, 2016 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Saturday, August 20, 2016

Notable academic pitch: "Don’t end federal private prisons"

Sasha Volokh has this interesting lengthy commentary explaining his negative response to the announcement this past week (discussed here) that the Justice Department plans to end its use of private prisons. I recommend the full piece (with all its links) for anyone interested in a serious understanding of modern prison policies and practices. Here is how it gets started:

Yesterday, the DOJ announced that it would gradually end its use of private prisons.  You can read the memo by Deputy AG Sally Yates here.  She writes: “I am directing that, as each contract [with a private prison corporation] reaches the end of its term, the Bureau [of Prisons] should either decline to renew that contract or substantially reduce its scope in a manner consistent with the law and the overall decline of the Bureau’s inmate population.”

Why?  The Yates memo says: “Private prisons . . . compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security.  The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource — and these services are essential to reducing recidivism and improving public safety.”

This is unfortunate, for two reasons.

First, Yates seems to be exaggerating what empirical studies tell us about private vs. public prison comparisons.  They do save money (though how much is a matter of dispute).  And they don’t clearly provide worse quality; in fact, the best empirical studies don’t give a strong edge to either sector.  The best we can say about public vs. private prison comparisons is a cautious “We don’t really know, but the quality differences are probably pretty minor and don’t strongly cut in either direction.”  The Inspector General’s report doesn’t give us strong reason to question that result.

Second, even if all the bad things people say about private prisons were true, why not pursue a “Mend it, don’t end it” strategy?  there’s a new trend in corrections to develop good performance measures and make payments contingent on those performance measures.  If the private sector hasn’t performed spectacularly on quality dimensions to date, it’s because good correctional quality hasn’t been strongly incentivized so far.  But the advent of performance-based contracting has the potential to open up new vistas of quality improvements — and the federal system, if it abandons contracting, may miss out on these quality improvements.

Just some (of many) prior posts about private prisons:

August 20, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)