Monday, December 14, 2015

SCOTUS yet again summarily reverses circuit reversal of state death sentence

The Supreme Court this morning issued what has become a notably common type of summary reversal: in White v. Wheeler, No. 14-1372 (S. Ct. Dec. 14, 2015) (available here), the Justices via a per curiam opinion determined the Sixth Circuit was wrong to overturn a death sentence based on the exclusion of a juror.  Here is part of how the opinion starts and ends:

A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit.  During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed.  The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments.  That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition....

The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire.  But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context.

The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment.  Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis....

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam).

Kent Scheidegger at Crime & Consequences has this interesting closing thought in this post about this latest SCOTUS summary reversal:

The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

December 14, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Reviewing and reflecting on persistent problems with the federal clemency process

The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks.  But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:

As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.

“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”

As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.

“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.

And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....

But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out.  Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”

“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.

Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.

Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department.  “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”

Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”

But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.

Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.

Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”

Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”

No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.

December 14, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Will Senate leader ever bring latest federal sentencing reform bill up for a full Senate vote?

The question in the title of this post is prompted by this notable inside-the-Beltway report from the New York Times headlined "Mitch McConnell Demurs on Prospects of Criminal Justice Overhaul."  Here are excerpts:

Despite a concerted push from a broad right-left coalition, Senator Mitch McConnell said he had not determined whether he would bring a bipartisan criminal justice overhaul to the Senate floor next year.  “I haven’t decided yet,” Mr. McConnell, the Kentucky Republican and majority leader, said in an interview on Thursday as he began looking toward 2016.

The Senate leader definitely seemed open to the idea.  He said the proposal, which would reduce some mandatory minimum sentences, lead to early release for thousands of nonviolent offenders and set up new programs to help them adjust to life after prison, seemed to meet his criteria for allocating precious Senate floor time.

“It seems to have pretty broad bipartisan support,” Mr. McConnell said of the criminal justice legislation approved by the Judiciary Committee in October.  “This is the kind of thing, when you look at it, you have principals on both sides who are interested in it.  That makes it worthy of floor time.”

However, the legislation, while endorsed by both conservative and progressive interest groups, could present a sticky election-year vote for some Republicans who typically see themselves as law-and-order politicians.  And the issue could get very complicated should Senator Ted Cruz of Texas become the Republican presidential nominee.  Mr. Cruz voted against the plan in the Judiciary Committee and was outspoken in his criticism.  So if the Republican-led Senate moved forward, it could conceivably be pushing legislation opposed by its candidate for the White House.

It is critical to recall that just a few years ago when Democrats still controlled the Senate, then-Senate leader Harry Reid never brought the Smarter Sentencing Act up for a full Senate vote ever after the SSA passed through the Senate Judiciary Committee with bipartisan support and even though there was good reason to believe the SSA would have garnered majority support from the full Senate.  Thus, as this article spotlights, the passage of the Sentencing and Correction Reform Act through the Senate Judiciary Committee provides no certainty that even the full Senate will get a chance to vote of this reform bill.

As reported earlier, it is clear that the first few months of 2016 now constitute the next critical period for federal statutory sentencing reform.  I remain cautiously optimistic that the broader political and social forces that have so far propelled bipartisan support for reform to this point will help carry some bill through both houses of Congress in some form in 2016.  But I am not counting any sentencing reform chickens anytime before they completely hatch out of Congress and find their way to the desk of the President.

December 14, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Friday, December 11, 2015

SCOTUS grants cert on permissible practices for police roadside tests and for prisoner litigation

As reported in this SCOTUSblog posting by Lyle Denniston, the Supreme Court granted certiorari review on four matters this afternoon including a set of cases "that could have a nationwide effect on the roadside actions of police officers."  Here are the details:

[T]he Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.  The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota.

The Court also granted review of three other cases ... [including one involving] a dispute over whether a prison inmate is excused from attempting administrative remedies for a grievance if the prisoner believed, wrongly, that he had already done so (Ross v. Blake).

The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver.  The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.

In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration.  It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving.   In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving.  The two cases involve either a blood or breath test.

Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision.  And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling.  The Supreme Court, at its private Conference on Friday, had thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.

December 11, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Prez candidate Donald Trump pledges (seemingly unconstitutional) death penalty mandate for cop killers

As reported in this article from The Hill, "Republican presidential front-runner Donald Trump on Thursday vowed to issue an executive order to mandate the death penalty for anyone who kills a police officer."  Here is more:

“One of the first things I’d do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen,” he said.

“We can’t let this go,” he added, speaking to a New Hampshire crowd alongside the New England Police Benevolent Association, shortly after the group voted to endorse Trump.

The outspoken businessman referenced the 2014 shooting of two New York City police officers in their squad car, which prompted significant outcry from some conservatives accusing President Obama of fostering resentment against police officers. “I want to let you know, the police and law enforcement in this country, I will never ever let them down,” he said. “The job they do and the job all you in this room do is second to none, and everyone in our country knows that.”

As most informed readers likely know, the Supreme Court back in 1976 first declared that a system of mandatory death sentencing was unconstitutional, and the Justices reaffirmed this "individualization" constitutional requirement in a number of subsequent ruling. But Justice Scalia has long complained about the Supreme Court finding such a limit in the Constitution, and it is certainly possible that a President Trump might be inclined to seek to live up to this campaign pledge by seeking to overturn prior SCOTUS precedent precluding any capital punishment mandates.

December 11, 2015 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, December 10, 2015

NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials

As reported in this new Washington Examiner article, "[f]orty former top federal law enforcement officials want senators to hit the breaks on bipartisan legislation that would roll back mandatory minimum sentences for drug dealing and other crimes." Here is more:

The group, which includes former New York mayor and U.S. Attorney Rudy Giuliani, former Attorney General John Ashcroft and drug control czar William Bennett, say sentencing laws enacted in the 1980s and 1990s led to the dramatic dip in crime rates that began 25 years ago, a claim disputed by many liberals and criminologists.

"Our system of justice is not broken," the former officials wrote in a Dec. 10 letter sent by the National Association of Assistant United States Attorneys to Senate leaders. "Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back." The officials call for leaving the current sentencing regime alone.

"Our current sentencing structure strikes the right balance between congressional direction in the establishment of sentencing levels and the preservation of public safety," they write. The former officials express alarm about proposals to retroactively alter previously applied sentencing guidances, a step they say would cause the release of "thousands of armed career criminals."...

Some senior Republicans, including Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, support scraping some minimum sentencing laws, though Grassley backs a less sweeping bill than [Senator Rand] Paul. The GOP support has helped make sentencing reform a popular issue, widely hailed as a rare area where bipartisan cooperation is possible.

But the law enforcement officials' letter shows reports of an emerging bipartisan consensus are exaggerated. The letter's signatories include officials who helped enact the tough sentencing laws now under fire. Michele Leonhart, who headed the Drug Enforcement Agency under Obama, is a notable Democratic appointee who broke with her former boss by signing on.

Sens. Jeff Sessions, R-Ala., and Marco Rubio, R-Fla., another a presidential hopeful, are among conservatives gearing up to oppose to sentencing reform, raising the chance the issue could divide Republicans.

I cannot yet find a copy of this NAAUSA letter on-line, but I will try to post it when I can get access to a copy.

UPDATE:  A helpful colleague sent me a copy of the letter for posting here:  Download Former_Official_Ltr_1210-2015-FINAL (1)

December 10, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

The Sentencing Project spotlights major criminal justice reform stories of 2015

The Sentencing Project is an extraordinary public policy group that does some of the most effective and important criminal justice reform research and advocacy.  I received via e-mail this letter from The Sentencing Project about its latest publication and its impressive recent:

This year, we have seen an emerging national consensus for criminal justice reform.  At The Sentencing Project, we’ve been proud to have contributed to this shift, as we have for more than a quarter century. Our 2015 annual newsletter contains highlights of criminal justice reform activities this year, including:
  • A look at the major reform developments in Washington, including the bipartisan Sentencing Reform and Corrections Act, introduced in the Senate this fall
  • Successful reform efforts at the state level, including scaled back bans on public assistance for people with felony drug convictions in Alabama and Texas
We have had a wonderful year, and we look forward to continued success in the year ahead. 

December 10, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Shouldn't the Black Lives Matter movement focus a lot more on ensuring black voters are able to matter?

The question in the title of this post reflects my reaction to two stories I came across this morning.  First, as reported here, readers of The Crime Report in the site's "fifth annual survey of the most significant criminal justice news stories and developments ... [chose] the growing political profile of Black Lives Matter and related organizations as the major development of 2015."  Second, this new Intercept article reports that within "Florida’s black population, the rate of disenfranchisement is high, with nearly a quarter of African-Americans prohibited from voting."  This second piece is headlined "Thanks to Republicans, Nearly a Quarter of Florida's Black Citizens Can't Vote," and here is an excerpt:

Nationwide, nearly 6 million Americans are barred from voting due to felony convictions. Although most states restrict the voting rights of imprisoned felons, Iowa currently is the only one that joins Florida in imposing a lifelong disenfranchisement on ex-felons.  Until three weeks ago, Kentucky also had such a ban, but on the Tuesday before Thanksgiving the state’s outgoing Democratic governor issued an executive order restoring the voting rights of 140,000 nonviolent ex-felons in the state.  The incoming Republican governor has signaled that he may uphold the order.

Meanwhile, the scale of the problem in Florida appears to be growing. The 1.5 million figure dates from 2010; when Republican Gov. Rick Scott took office in 2011, he immediately rolled back a policy of his predecessor, Charlie Crist, who automatically restored the rights of many felony offenders who had completed their sentences.  Scott introduced new rules requiring that people convicted of nonviolent felonies wait five years before they can apply to have their civil rights restored; those convicted of violent and certain more serious felonies must wait seven years to apply.  Under Crist, tens of thousands of felons, on average, won back their right to vote each year. So far, Gov. Scott has restored the rights of just 1,866 ex-felons, while tens of thousands of former inmates are released each year, stripped of their voting rights. As the Scott administration has choked off the one existing channel for former felons seeking suffrage, anecdotal evidence suggests that wait times are getting longer for those petitioning the governor to restore their civil rights. ...

More than 50 years after Congress passed the Voting Rights Act of 1965, Florida is still a place where in a typical public setting — a grocery store or a city block — a sizable portion of the citizens you walk among are likely to be quietly enduring the state’s lifelong disenfranchisement. In neighborhoods like heavily black Parramore, an even larger number of residents will be unable to vote. And Walker says that in his congregation, those who can vote are outnumbered by those who cannot.

“We’ve had older clients call us and say I want to be able to vote again before I die,” said Mathew Higbee, the founding partner of Higbee & Associates, a law firm that helps ex-felons restore their civil rights. “And we say, ‘Right now it’s going to be a six- to 10-year wait before they’ll even look at it,’ and the person says: ‘I’m not sure I’m going to live that long so I’m not even going to try.’”

The Scott administration has asserted that the governor uses the right to vote as an incentive to encourage former offenders to stay out of trouble. “Gov. Scott feels that convicted felons need to have an opportunity to show they can be law-abiding members of society before those rights are restored,” a spokesperson said during the 2012 election season. Yet ex-felons who have stayed clear of the law for more than a decade told me that their petitions to Florida’s clemency board have gone unanswered or have become stalled in a bewildering bureaucracy plagued with a backlog of nearly 11,000 pending applications for civil rights restoration. So far this year, the state has approved only 315 applications. The former felons I spoke with hold little faith in the clemency process. And, perhaps more than anything else, they express a feeling of having been being forgotten by virtually every element of political life in America. (Gov. Scott’s office did not respond to a list of emailed questions.)

I view the 2008 and 2012 election results as dramatic proof that minority populations garner significant political power and can have maximum political and social impact when they turn out in large numbers to vote.  As the title of this post suggests, I think the BLM movemen could and would have the most long-term political and social impact if it were to aggressively challenge felon disenfranchisement laws and other formal and informal barriers to people of color voting in very large numbers in every election.

December 10, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (13)

Tuesday, December 08, 2015

"The Path to Exoneration"

The title of this post is the title of this notable new paper available via SSRN authored by Jon Gould and Richard Leo. Here is the abstract:

This article is the first systematic empirical study of how the American criminal justice system discovers and responds to factual error based on actual innocence.  The study analyzes a data set of 260 cases of wrongful conviction of the innocent and 200 near misses (i.e., dismissals and acquittals involving an innocent defendant) to better understand the sources of and bases for exoneration; who is responsible for, as well as who opposes, exoneration; the statistical correlates of exoneration; and the primary methods and mechanisms involved in the path to exoneration.

This study leads to several findings.  First, wrongful convictions are difficult to reverse in the absence of dispositive evidence of innocence. The vast majority of exonerations relied on one or two bases, and even then most required DNA evidence.  Second, the adversarial nature of the criminal justice system continues from the trial level to subsequent efforts to exonerate the innocent.  Police and prosecutors maintain their roles, infrequently playing a central part in investigating or advocating for exoneration and serving as the largest combined source of opposition to exonerations.  Finally, exonerations take a long time, even longer when based on DNA evidence, which appears to be the primary basis for clearing defendants.

After examining these findings, the authors advocate for the following changes in the United States criminal justice system: 1) police and prosecutors must take a more active role in the review and reversal of factually erroneous convictions; 2) additional juridical proceedings are needed for the wrongly convicted to prove their innocence even after conviction; 3) efforts must be made to prevent wrongful convictions at the front end because the resources for freeing the wrongly convicted are so limited and the path to exoneration following conviction is filled with formidable challenges.

December 8, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Kentucky gov issues hundreds of pardons and a few commutations on way out of office

As reported in this local piece, outgoing Kentucky Governor "Steve Beshear Monday night granted 201 pardons and six commutations to people sentenced for a range of offenses, including 10 women sentenced for violent crimes they committed after suffering years of domestic violence."  Here is more:

Throughout his eight years in office, the Democratic governor said he received more than 3,400 requests for pardons that were reviewed over several months by him and his staff. “I spent many long days weighing the merits and circumstances of individual cases before making my final decisions,” Beshear said in a statement. “The pardon authority afforded me by Section 77 of the Kentucky Constitution isn’t something I take lightly. We are talking about action that impacts the lives of so many individuals.”

Beshear noted that his predecessor, Republican Ernie Fletcher, received more than 1,000 pardon requests and granted just over 100 pardons during his four years in office.

Of the commutations of sentence or full pardons to 10 women who suffered domestic violence, Beshear said, “These 10 women — some of whom are currently incarcerated and some of whom have already been released from institutions — were recommended to me for consideration for full pardons after an extensive joint review by the Department for Public Advocacy and the Kentucky Domestic Violence Association. After further review of those files, I determined that some of the pardon requests should be granted, while others merited a commutation of sentence.”...

Beshear, a former attorney general, also pardoned several individuals convicted of drug offenses. He said their requests “described with candor their mistakes with drugs and highlighted their efforts to stay sober and become productive members of their communities.”

Beshear added: “Throughout my administration, I have worked tirelessly with legislative leaders, local officials and advocates to wipe out the tragic impacts that substance abuse and addiction have had on the people of the commonwealth.

“A significant part of that strategy has been a focus on treatment to help these individuals have a fighting chance at staying clean and turning their lives around. After carefully considering the details of each of these cases, I am convinced that these individuals deserve a second chance at life with a clean record.”

December 8, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Why Has The Death Penalty Grown Increasingly Rare?"

The title of this post is the headline of this extended NPR piece reported by Nina Totenberg. (She also has this companion shorter piece headlined "As Supreme Court Upholds Death Penalty, Number Of Executions Plummets.") Here is how the big segment gets started: 

The last execution scheduled in the U.S. for the year is set for Tuesday in Georgia.  But capital punishment has gown rare in America, to the point of near extinction.

Even though polls show that 60 percent of the public still supports the death penalty, and even though the Supreme Court has repeatedly upheld it as constitutional, the number of executions this year so far is almost the same as the number of fatalities from lightning strikes — 27 executions versus 26 deaths by lightning.

It's an ironic statistic.  When the Supreme Court briefly banned the death penalty in 1972, it did so, in part, because, as Justice Potter Stewart put it, capital punishment was being imposed so randomly and "freakishly" that it was like being "struck by lightning."  Four years later, the court would revive the death penalty, but with new limitations aimed at reserving it for the so-called worst of the worst.

Few could have imagined the trajectory the death penalty would follow in the years after.  The number of executions soared in the 1990s — hitting a high of 98 in 1999 and ultimately totaling more than 1,400 — but tailed off dramatically after 2000.  With just one more execution set for this year, the current year's total will be the smallest number in almost 25 years.

While the death penalty remains the law in 31 states, that figure is misleading.  In many of the 31, capital punishment has largely fallen into disuse.  In four states, the governor has put a moratorium on the death penalty, and in 17 there's an executive or judicial hold on executions because of botched procedures or problems in obtaining drugs that courts and legislatures have approved for lethal injection.

December 8, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, December 07, 2015

Extended account of much Obama executive ado so far still amounting to nearly nothing

Images (6)This past weekend, the Washington Post had this extended account of how and how long Prez Obama and former Attorney General Eric Holder have been talking about working toward significant criminal justice reform.  I recommend the entire piece, and here are some extended excerpts:

Thee summer after President Obama began his second term in office, he and then-Attorney General Eric H. Holder Jr. were relaxing and watching fireworks from a porch on Martha’s Vineyard. Holder was about to interrupt his family vacation to fly to San Francisco and deliver a speech unveiling their plans to make the most significant changes in the country’s criminal justice system in decades.

“I’m the only one who hasn’t seen your speech,” Obama said teasingly to Holder... But the president really already knew what Holder planned to say.

The text was the culmination of countless conversations over the years between Holder and Obama about how this country prosecutes and incarcerates its citizens. Obama had seen the racial disparities of the decades-long war on drugs close up as a community organizer on the South Side of Chicago; Holder experienced them as a former D.C. judge and prosecutor.  The two men met in 2004 at a small Washington dinner party shortly after Obama was elected to the Senate, and there was an instant connection. “We share a world view,” Holder said recently. “We kind of feel each other.”

Now, they were finally ready to act....

Laying out a three-part plan he called “Smart on Crime,” Holder said that he was directing his prosecutors nationwide to stop bringing charges that would impose harsh mandatory minimum sentences, except in the most egregious cases.  He called for more compassionate release of aging and ill inmates, more drug diversion programs as alternatives to prison and spoke of “shameful” sentencing disparities, a hint of Obama’s plans to use his clemency power to correct the disparities and release certain drug offenders early....

Nearly 2-1/2 years later, the administration’s major criminal justice overhaul has yielded mixed results.  Obama and Holder helped launch a national conversation about mass incarceration.  Last year, federal prosecutors pursued mandatory minimum sentences at the lowest rate on record — and sentencing reform legislation with bipartisan support has been introduced in Congress.

But some prosecutors are continuing to resist changes to mandatory minimum sentencing.  The initiative has also not yet made a significant dent in the number of inmates crowded into federal prisons.  Only 25 of the 531 elderly inmates who have applied for compassionate release under the new policy have received it.

And in the key executive action that Obama can take to undo unfair sentences, he has only granted clemency to 89 inmates of the thousands of federal drug offenders who have applied.  The president is expected to grant clemency to about another 100 prisoners in the coming weeks.

But Holder said he initially thought that as many as 10,000 of the federal prison’s nearly 200,000 inmates “were potentially going to be released” under the new clemency initiative.  Other Justice officials say the number is closer to 1,000 or 2,000. Criminal justice reform advocates are criticizing the president for moving too slowly and are calling on him to speed up the clemency process before his administration runs out of time.

“Given the president’s repeated concern about the numbers of people in prison serving excessive sentences, he has done little to alleviate the problem through clemency,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.  “The president has all the constitutional authority he needs to do the right thing. Failure here cannot be blamed on partisanship in Congress.  If the president wants to correct past injustices, he can.”...

The real planning for how to unwind the country’s war on drugs began the summer before Holder’s speech. He and Obama anticipated a successful second-term election....  “Let’s go big,” Holder recalls Obama saying that August, again on the Vineyard.  “It’s gutsy.  It’s risky.  But it’s something we ought to do.”

A few months later, in January 2013, Holder directed his senior Justice officials to break into groups and bring him recommendations.  Holder and Obama were concerned about the backlash.  Could they pull off this huge reversal of drug policy and sentencing?  Would they be accused by Republicans of being soft on crime?

The pushback did come — but it was from within Holder’s own department.  In U.S. attorneys’ offices around the country, some prosecutors were supportive of the new policy, but others grumbled that Holder was taking away their most effective tool to get cooperation from drug offenders.  The organization representing line prosecutors wrote a letter to Holder and then went over his head and sent letters to top congressional leaders, urging them not to change the sentencing rules.

Regular readers know that I have been a persistent supporter of the Obama Administration's efforts to refocus criminal justice energies away from the war on drugs, and both Prez Obama and former AG Holder merit credit for helping to change the modern criminal justice reform conversation in the US. But I find quite frustrating and aggravating to hear that Obama and Holder were interested in doing something "big" and "gutsy" concerning the drug war given how little they have done so far that would merit the label big or gutsy.

Big and gutsy would involve granting thousands of commutations, not just dozens; big and gutsy would involve pushing hard on Congress and the Sentencng Commission to move away from drug quantities as the basis for long prison sentences; big and gutsy would involve advocating for bringing back parole eligibility for at least nonviolent drug offenders; big and gutsy would involve creating executive task forces with mandates to lower the federal prison population by at least 25% and to study how best to reform federal marijuana prohibtion; big and gutsy would involve tasking past and present GOP Govs who have championed state sentencing reform to propose possible reforms for the federal system.

Especially because Prez Obama still has a final year to make good on his desire to do something "big" and "gutsy," I am disinclined to give up hope that he can still bring more significant change to the most troublesome part of the nation's criminal justice systems.  In addition, when thinking of Prez Obama's likely sentencing legacy, he surely merits credit for appointing SCOTUS Justices and USSC Commissioners that have been pushing forward significant jurisprudential and doctrinal changes.  But as of this writing, the size, scope and operation of the federal criminal justice system in late Fall 2015 is practically speaking not very much different at all from what the system looked like in late Fall 2008.  Prez Obama has a lot of work ahead if he really wants things to truly be different in this space when he leaves the Oval Office.

December 7, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0)

"Are debtors' prisons returning?"

The title of this post is the headline of this recent lengthy CNN commentary authored by Van Jones and Jessica Jackson. Here are excerpts:

Debtors' prison is supposed to be illegal in the United States. But in too many American cities, it has made a shocking return.  This [past] week, a bipartisan group of leaders, and a few A-list celebrities, gathered at the White House to do something about it.

The problem: Faced with ballooning costs of America's massive incarceration industry, local jurisdictions have started billing people for time they spend behind bars.  They are also charging them for electronic supervision services. Not to mention DNA collection, juries and constitutionally mandated public defenders.

The trouble here is obvious: Recently incarcerated people often do not have jobs.  Therefore, they cannot possibly keep up with an increasingly aggressive list of fees and fines.

So believe it or not: Cities are throwing them BACK into jail -- for not being able to pay!  From Detroit to Dallas, America's criminal justice system is trapping poor people in a perpetual cycle of prisons and poverty....

On top of the stated fees and fines, many jurisdictions are adopting practices employed by shady payday lenders, not public safety agencies.  For example, Washington state charges a 12% interest rate on all its criminal debt.  Florida adds a 40% fee that goes into the pockets of a private collections agency.  And in Arizona, an 83% surcharge turns a $500 fee into a $915 bill.  A portion of those proceeds go to finance electoral campaigns, creating a strong incentive to preserve the status quo.

One study revealed that most people with a felony conviction can expect to be saddled with an average $11,000 in debt.  In total, about 10 million Americans collectively owe more than $50 billion in outstanding fines and fees. Repaying this debt would be challenging for the average American family, half of whom would have trouble finding $400 on short notice.  But for those already struggling to get on their feet after prison, the debt from fees and fines often carry carries with it an air of impossibility.

The current system has dire consequences for millions of Americans that can be permanently debilitating and perpetuates a cycle of poverty and incarceration.  Failure to pay fines can result in lost income, depressed credit ratings, housing instability, suspended drivers' licenses, arrest warrants, loss of Social Security benefits or further incarceration.  These consequences can permanently affect an individual's life and reduce the ability ever to get his or her life back on track.

The system is not supposed to work this way.  A Supreme Court ruling in 1983 prohibited putting people in prison for failure to pay their fines and fees without an indigency hearing.  And yet at least 15 states have found ways to ignore this mandate.  They have made this a standard practice....

The Sunlight Foundation is supporting the collection of data so we can understand the scope of the problem and how we can better address the issue.  The Laura and John Arnold Foundation is funding a comprehensive research and litigation-based approach to reform.  And #cut50 is dedicated to highlighting this injustice and amplifying leadership from around the country.

Together, we can roll back these policies that ultimately have little to do with public safety.  Our challenge strikes at the heart of our criminal justice system: Are we a nation of second chances, or will we sit by and watch a perpetual punishment machine run wild?  Let us ensure our elected representatives and government agencies live up to the highest values of our society.

This ABC News column authored by Lz Ganderson, headlined "To Be Poor, Black and Jailed," discusses similar issues and concerns.

December 7, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, December 06, 2015

Supreme Court takes up Montana case to resolve applicability of Sixth Amendment speedy trial right to sentencing

The major matter among the cases that the Supreme Court decided to take up on Friday concerns the authority of the Puerto Rican government to deal with its debt crisis.  But as this post from Lyle Denniston at SCOTUSblog notes, the undercard cert grants are still noteworthy:

The Court granted review in three other cases on Friday, involving: the application of the constitutional right to a speedy trial to a follow-up sentencing proceeding (Betterman v. Montana); a definition of when a government contractor has filed false reimbursement claims under the False Claims Act (questions 2 and 3 in Universal Health Services v. United States ex rel. Escobar); and a claim for attorney’s fees for an employer when the Equal Employment Opportunity Commission does not carry out its assigned duties before a lawsuit is filed (CRST Van Expedited v. EEOC). Those cases, too, are likely to be argued in March.

The cert petition in Betterman is available at this link, and here is how it presents the question:

Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case.

This question has divided lower courts, but I am not so sure having it answered either way will really impact sentencing practices much. Defendants can, and regularly do, waive and forfeit Sixth Amendment speedy trial rights so having such a right apply at sentencing may not practically lead to much more than just some more formal waiver practices. Conversely, defendants surely have some residual Fifth Amendment Due Process right not to suffer too much prejudice from excessive delays before sentencing, so defendant already have and will continue to have some procedural protections in this arena even without the Sixth Amendment getting involved.

That all said, it is always exciting and interesting when SCOTUS takes up a constitutional sentencing issue that has split both state and federal courts. And there could be some "sleeper" elements emerging in this case through briefing and argument that could make it a bigger deal. And, if nothing else, the case has the benefit of a cool party name that will keep me humming one of my (many) favorite Pearl Jam songs.

December 6, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?

Justice-refThe question in the title of this post is prompted by this recent Washington Post report, headlined "Obama convenes meeting on criminal justice reform to buoy bipartisanship," discussing a meeting Prez Obama convened with congressional leaders to talk about how to turn reform bills into new sentencing laws. Here the details:

President Obama convened a meeting of more than a dozen congressional Republicans and Democrats Thursday, in an effort to bolster a fragile bipartisan coalition working to reform the criminal justice system.

The House and Senate have been working to craft legislation to reduce mandatory minimum sentences for drug offenders, as well as to revamp aspects of federal incarceration. The Senate Judiciary Committee passed a comprehensive bill on a bipartisan 15-5 vote in October; the House Judiciary Committee has passed five separate measures by voice vote in recent weeks.

But there are a few major differences between the two chambers’ approaches. Most significantly, one of the House bills — the Criminal Code Improvement Act — would require prosecutors in cases as wide-ranging as food tainting and corporate pollution to prove that defendants “knew, or had reason to believe, the conduct was unlawful,” otherwise known as “mens rea.”

That measure has angered many Democrats, who argue that it could block criminal prosecution of some corporate entities — including those owned by Koch Industries, which has helped mobilize conservative support for the overall reform effort. Obama specifically asked lawmakers to remove the provision, according to individuals familiar with the meeting, though House Republicans argued that it was a critical component for conservatives.

“We believe that invites a lot of controversy and delay into our agreement, and the House feels just the opposite,” said Senate Minority Whip Richard J. Durbin (D-Ill.), who attended the White House meeting and co-authored the Senate criminal justice bill.

Sen. John Cornyn (R-Tex.), another co-author of the bill, said that while “nothing was decided” in the more than hour-and-a-half session, he was “very optimistic” after participating in it. “I think it was all a very positive, bipartisan, bicameral, executive, legislative meeting,” Cornyn said, adding that although “there was not consensus” on that issue, there might be a way to work it out in a conference between the two chambers. “But I think part of the message was, ‘Let’s take the things where there is consensus, get that done.’ ”

A spokeswoman for House Judiciary Committee Chairman Bob Goodlatte (R-Va.) declined to comment on the meeting. She noted that the House panel has passed bills on issues including modifying sentencing guidelines and eliminating statutes in the U.S. Code that subject violators to criminal penalties for trivial conduct. The committee will take up measures on prisons, civil asset forfeiture, and criminal procedures and policing in the coming weeks, she added.

Durbin said “we have a good chance” of passing legislation in early 2016, so lawmakers can work out their differences “and send it to the president before midpoint of next year.”

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), who helped craft the Senate bill and also met with the president, said the meeting was less about “the path forward” than how to get the two competing proposals brought up for floor votes in the House and Senate.

Obama also pressed for specific numbers on how many individuals would benefit overall from the two proposals, people familiar with the meeting said, because the proposals introduce new sentences even as they reduce some mandatory minimums.

Senator Durbin's comments reinforce my understand that there is a good chance that the full House and Senate will likely vote in January or February on the various reform bills that have already passed the Judiciary Committees. Such votes would pave the way for harmonizing efforts on the bills and perhaps enactment sometime in Spring 2016. I think the commnts coming after this meanign from not only Senator Durbin but also Senator Cronyn lead me to have continued (tempered) optimism that this will get done in some form before Prez Obama leaves the Oval Office.

That all said, the dispute over menas rea reform could throw a wrench into this process, as could various other political developments. Especially if the legislative process drags into the summer, I think whomever emerges as a GOP leader through the primary season could end up having an impact on the sentencing reform debate. In addition, as both the title and contents of this post suggests, Prez Obama also is a critical and complicated figure in all this. Cajoling Congress effectively could help keep the legislative process, but too much advocacy or criticism on sentencing issues coming from the White House could upset an already delicate political balance in this arena.

December 6, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Latest USSC retroctivity data suggest prison savings over $1.4 billion from drugs-2 guideline amendment retroactivity

I just noticed on the US Sentencing Commission's website this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated December 2015, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782 [the so-called drugs -2 amendment]. The data in this report reflects all motions decided through September 30, 2015 and for which court documentation was received, coded, and edited at the Commission by November 30, 2015.

The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, well over 20,000 federal prisoners have had their federal drug prison sentences reduced by an average of just about two years.

So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers over $1.4 billion dollars. As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.

December 6, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, December 05, 2015

Have conservatives been "manipulated" and "duped" by abolitionists to oppose the death penalty?

The question in the title of this post is prompted by statements in the final paragraph of this lengthy American Thinker commentary authored Aaron J. Veselenak and headlined "Some Reading for Conservatives Who Oppose the Death Penalty."  I recommend the full piece, and here is how it starts and ends:

In recent years, opponents of capital punishment have leveled key criticisms against conservatives, claiming major hypocrisy in their continued approval of society's most serious criminal sanction.  One claim is that conservative support for the death penalty violates the most central tenet of conservatism — that of limited government.  How can conservatives, they ask, in their suspicion of and disdain for large, powerful government, advocate use of the greatest governmental power of all, the taking of life?  Contradiction — indeed, hypocrisy — is said to exist.

This charge is faulty, even bogus.  Unfortunately, this and other equally faulty charges have resonated with certain members of the conservative movement, among them state and federal lawmakers.

Why is the above claim so faulty, in fact lacking of substance?  The answer lies in the fact that conservatives are not anarchists.  Yes, conservatives do believe in very limited size and power of government.  However, that does not mean they abandon the most basic functions of government, chief among them protection of the people through military and police powers.  Or a court and penal system to further provide safety and administer justice....

Conservatives jumping on the anti-­death penalty bandwagon in recent years need to rethink their position.  They have been manipulated — duped by the seemingly sound and logical statements of death penalty opponents.  Deeper reflection demonstrates these claims to be very shallow and without merit.

Perhaps because I hang out and interact with a number of pretty bright people with an array of views on an array of criminal justice topics, I am disinclined to believe that conservatives who oppose the death penalty are being convinced by "very shallow" claims or are subject to being manipulated or duped by death penalty opponents.  Nor do I think one need to be drawn in by appeals to anarchy or libertarianism to have conservative-based concerns about the operation of modern death penalty in the United States.

Rather, I think one readily can embrace a strong belief/commitment to a government focused on the "protection of the people through military and police powers [and] a court and penal system to further provide safety and administer justice" while still voicing considerable disaffinity for the modern death penalty.  This disaffinity would be based on the (seemingly conservative) perspective that the governments often, even when trying really hard to be effective in its core functions, far too often end up doing more harm than good (and at an excessive cost to taxpayers).  Even apart from concerns about government dysfunction showcases by wrongful convictions (which I assume trouble conservatives as much if not more than liberals), the governmental mess we have recently seen in Oklahoma with the mixing up of execution drugs or states previously relying on unqualified executioners or even evidence of racial disparities in capitl application could all seemingly provide a principled basis for principled conservatives to conclude the government (especially state governments) ought not still be in the business of killing its killers.

December 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12)

Friday, December 04, 2015

"The Injustice of the Plea-Bargain System"

The title of this post is the headline of this op-ed authored by Lucian Dervan and appearing in today's Wall Street Journal. Here are excerpts:

The House Judiciary Committee introduced five bills this year in a bipartisan effort to reform America’s criminal-justice system.  With incarceration rates in the U.S. five to 10 times higher than in Western Europe and other democracies, the bills aim to provide sensible reforms such as rewriting mandatory-sentencing statutes.  Yet none directly addresses plea bargaining, a practice that induces too many defendants to plead guilty to avoid what has come to be known as the trial penalty....

Even in cases without mandatory sentences, it is common for sentences handed down after trial to be far more severe than those offered to induce guilty pleas.  This “trial penalty” is weighed by thousands of defendants each day when considering whether to accept a plea offer.

A 2013 Human Rights Watch study found that the average federal drug sentence for defendants who proceeded to trial in 2012 was three times longer — an increase of 10 years — than for defendants who pleaded guilty.  In that study, a federal judge in New York described the sentences defendants face if they reject plea offers as “so excessively severe, they take your breath away.”  Not surprisingly, the great majority of convictions come from guilty pleas.  According to the U.S. Sentencing Commission, over 97% of convictions in the federal system arise from guilty pleas; state systems aren’t far behind at about 95%.

There are numerous documented cases of innocent defendants pleading guilty, including well-known examples such as Brian Banks.  In 2002, at the age of 17, Mr. Banks was wrongly accused of rape yet chose a plea bargain with a maximum sentence of seven years in prison.  If he rejected the offer and lost at trial, he faced 40 years to life in prison.  He took the deal and falsely confessed.  In 2012, after definitive evidence of his innocence came to light, a California court reversed the conviction.

The Supreme Court established the constitutionality of plea bargaining in Brady v. United States (1970).  But the court warned that it would have “serious doubts” if the “encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”  Sadly, the trial penalty has done just that.

December 4, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12)

Arkansas state judge strikes down portion of state execution law aimed at keep drug suppliers secret

As reported in this AP article, an "Arkansas judge struck down a portion of the state's execution law that keeps secret the source of drugs it uses, saying Thursday that drug suppliers do not have a constitutional right to be free from criticism." Here is more about the ruling and its context:

Pulaski County Circuit Judge Wendell Griffen sided with death row inmates who challenged a law passed by lawmakers this year that prevents disclosure about the drugs that are used in executions. The judge also ordered the state to disclose drug details, including the makers and suppliers, by noon Friday. "It is common knowledge that capital punishment is not universally popular," Griffen wrote. "That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge."

Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said late Thursday that the office had filed notice of appeal with the state Supreme Court. Rutledge also asked for an immediate stay of Griffen's order. "Attorney General Rutledge has a duty to defend the State's lethal injection statute and disagrees with Judge Griffen's order," Deere wrote in an emailed statement.

In the filing for an immediate stay, attorneys for the office noted that states with secrecy laws regarding executions have generally won challenges to those laws. They believe Arkansas' law is less stringent than many of those.

In his ruling, Griffen noted that a federal judge in Ohio last month granted a protective order to allow that state to maintain secrecy about the drugs, but he said that court erred because it accepted "what it acknowledged as no proof of 'a single known threat'" as an indicator that disclosing a state's source for drugs would pose an undue burden on that state....

The Arkansas Supreme Court put on hold executions for eight inmates until the inmates' lawsuit challenging the state's execution protocol and secrecy law could be heard.

Under the execution secrecy law, the Department of Correction has withheld the manufacturer and distributor of midazolam, vecuronium bromide and potassium chloride obtained last year, as well as other information. Midazolam, a sedative, gained notoriety after being used during executions that took longer than expected last year in Arizona, Ohio and Oklahoma. The U.S. Supreme Court upheld the drug's use in executions in June. Earlier this year, The Associated Press identified three pharmaceutical companies that likely made Arkansas' execution drugs; each company said it objects to its drugs being used that way.

The inmates argued that the secrecy law is unconstitutional. They want information on the drugs' makers and suppliers to determine whether they could lead to cruel and unusual punishment. They also argued the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said the agreement is not a binding contract.

Griffen noted in his ruling that an attorney for the state said Arkansas' suppliers "covertly sold" the drugs to the state despite directives from the pharmaceutical companies that they should not be sold for use in executions. He said the admission, "whether inadvertent of not," was important because it shows the state could abide by the contract and still obtain drugs....

Griffen noted that Arkansas has a law outlining humane euthanization practices for animals. "The court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable or prolonged pain, but that the constitutional guarantee against 'cruel or unusual punishment' found in the Arkansas Constitution allows people who commit murders to be put to death as if they have no entitlement to such right," he wrote.

Arkansas last executed an inmate in 2005.

December 4, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Spotlighting a correlation (and a connection) between police shootings and capital punishment

America-s-deadliest-counties-for-police-killings-this-yearThe always interesting Radley Balko has this especially interesting opinion piece headlined "America’s killingest counties." Here are excerpts:

Throughout the 1980s and 1990s, Kern County, Calif., had a reputation for being one of the most law-and-order jurisdictions in the United States.  Led by longtime tough-guy prosecutor Ed Jagels, the county earned the unofficial motto “Come for vacation, leave on probation.” In 2009, Jagels’s county Web page boasted that Kern had “the highest per capita prison commitment rate of any major California County.”  Jagels would retire to great acclaim and praise, despite the fact that at least two dozen of the people his office convicted during the ritual sex-abuse panic of the 1980s and 1990s have since been exonerated.  Kern County has also sent 26 people to death row since 1976, putting it among the top 25 in the country, and among the 2 percent of U.S. counties that account for more than half of America’s death row population.

Given all of that, it probably isn’t terribly surprising that Kern County is also home to the deadliest cops in the United States....  Kern County, in fact, has seen 79 police killings since 2005, or about 8 per year. That’s 0.9 police killings per 100,000 residents.  By comparison, the city’s overall murder rate is 4.6 per 100,000, a figure right at about the national average.

There is, in fact, a pretty remarkable correlation between counties that produce a lot of death sentences and counties where cops kill a lot of people.  Oklahoma County, Okla., for example, is second in the nation in both death sentences and per capita killings by police officers.  San Bernardino County, Calif., is 11th in death sentences, and third in per capita killings by police.  Clark County, Nev., is fourth in police killings, and among the top 50 in death sentences.  Santa Clara County, Calif., is fifth in police killings, 19th in death sentences.  It goes on like that....

There are more than 3,000 counties in the United States.  But the 13 with the highest rates of police killings are not only all in death penalty states; they also all rank among the top 30 in death sentences meted out over the past 40 years.  These 13 cities are wide-ranging in size (from Kern’s 875,000 people to Los Angeles’ 10 million), murder rate (from 9.1 in Dallas to 2.3 in San Diego) and demographics.

What does this mean?  I pointed out in a post a couple of years ago that the counties that send the most people to death row also tend to be counties with histories of prosecutorial abuse and misconduct.  (Jagels’s office in particular was regularly berated by appeals courts for bending — or outright ignoring — the rules.)  District attorneys are the chief law enforcement officers within their judicial districts.  They set the tone for the entire area.  They’re also typically in charge of investigating officer-involved shootings and other allegations of excessive force.  It isn’t difficult to see how when a DA takes a “win at all costs” approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself.

December 4, 2015 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Thursday, December 03, 2015

"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir.  Here are excerpts: 

The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed.  The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....

There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely.  David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements.  And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”

 851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence.  What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...

Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”

There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions.  If prosecutors so decided, they would trigger life without parole upon conviction.

On March 5, 2013, prosecutors offered Kupa a plea deal.  The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months.  With good time credits, Kupa could serve seven years and ten months, Gleeson wrote.  But Kupa had just one day to think the agreement over, and he didn’t accept it.  And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.

December 3, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Fourth Circuit to consider en banc whether it can consider new claims from federal prisoner with wrong old LWOP sentence in Surratt

In this post a few months ago, I noted the lengthy split Fourth Circuit panel ruling in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here), in which a majority of the panel decided it could not consider a challenge to a wrongful LWOP sentence for a federal drug defendant.  As the majority put it: "We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence.  However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below."

Now, thanks to a helpful reader, I have learned that yesterday the full Fourth Circuit decided via this order to now hear the Surratt case en banc.   For anyone interested in federal habeas law, this now become a must-watch case. 

December 3, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Federal statutory sentencing reform not going to happen until 2016 ... if at all

This TPM DC report, headlined "Criminal Justice Reform Is Quickly Running Out Of Time," provides a Capitol Hill update that confirms what I had heard from another source: the full Congress is unlikely this year to get to the criminal justice reform bills that have made it through the House and Senate Judiciary committees. And, as the TPC article goes on to explain, the enduring GOP uncertainty on this front combine with a Prez campaign to perhaps diminish the prospects that any reform gets done anytime soon:

It was supposed to be the rare bipartisan bright spot in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office. With roughly three weeks left until the holidays, the Senate is prioritizing passing a tax extenders bill, a reconciliation package to defund Obamacare and Planned Parenthood, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.

"No chance it can be done between now and Christmas," Judiciary Chairman Chuck Grassley (R-IA) said Monday evening as he darted off the Senate floor clutching his list of the Republican senators he still intended to convince to sign onto his bill, his handwritten notes scrawled underneath each of their names.

Advocates and outside observers have long anticipated that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of the year taken up by other matters, reformers will have to wait until the Senate gavels back in in the new year, in the midst of presidential primary season.

The prospects of pushing forward with the Senate bill just as the Republican presidential primary in particular is in full swing -- with the expected tough-on-crime appeals to the conservative base -- is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration....

Grassley and supporters are now running short on time to get their bill on the floor especially if Republican frontrunner Donald Trump stays on top. Trump's attempts to tie illegal immigration and criminality have prompted fellow Republican presidential candidates to follow suite. In a race to out-flank one another, the GOP contenders have backed away from the new wave of conservative thinking on criminal justice reform and reverted to echoing the talking points that were cornerstones of the party in the 1980s and 1990s. Sen. Ted Cruz (R-TX) voted against the criminal justice reform bill in committee in October even as he once billed himself as a pro-reform Republican....

While momentum had been building for the Senate's criminal justice reform bill, there are still deep divisions in the Republican Party to contend with. The tug of war is between traditional tough-on-crime Republicans who believe reductions in sentences would lead to a spike in crime and a new generation of conservatives who see an economic argument for reducing mandatory minimums and slashing the costs associated with incarceration.

Grassley and other sponsors like Sen. Mike Lee (R-UT) are working to convince senators like Cory Gardner (R-CO), Shelley Moore-Capito (R-WV) and Steve Daines (R-MT) to sign on, but there are some outspoken opponents who may prove to be immovable. “I think the bill needs more work. I think it needs to be connected with the reality of criminal justice and crime in America," said Jeff Sessions (R-AL) "I would not favor bringing it up and just zipping it through. A number of members in our conference, I think share those concerns.” Freshman Sen. Tom Cotton (R-AR) replied "no comment" when TPM asked him about his position. Former Judiciary Committee Chairman Orrin Hatch (R-UT) said he was concerned the bill would "let out a lot of people who don’t deserve to be let out [of prison.]"

While Democratic sponsors of the bill are publicly optimistic that the legislation can get a vote on the floor even in an election year, Sen. Sheldon Whitehouse (D-RI) admits the lack of GOP unity does put the legislation in some jeopardy. Republican leadership will want to ensure they have buy in from most of their conference if they are going to risk bringing the bill up in an election year and giving President Barack Obama a domestic legislative victory. “I think this is an issue that needs to be wrangled out on the Republican side so the Republicans on the bill need their own leadership to get it some votes," Whitehouse says. "It's not unanimous so the Jeff Sessions and people like that would be out of the floor pushing back the same way they did on the committee."

Sen. Thom Tillis (R-NC) says he's familiar with the process of selling criminal justice reform to a skeptical audience. Tillis was speaker of the North Carolina House when the legislature passed the Justice Reinvestment Act, which made back-end reforms to reduce recidivism. "I know that a lot of people get concerned with it," Tillis said. “It’s not really a soft on crime bill. It is the typical arguments that get used for these sorts of things, but I think the more that we educate people, the broader base of support we will get for it."

Tillis recognizes, however, that the problem is that on the campaign trail, candidates don't have time to explain complicated or new policy proposals. “If candidates on either side of the aisle exploits it for what it is not, yeah it could slow things down," Tillis said." You only get to operate in 15 and 30 second soundbites, and you cannot explain the merits of this bill in that time frame so yeah going on into the early primaries, it could be difficult and they have to stake themselves out.”

I am not yet giving up all hope that Prez Obama could get to sign a federal sentencing reform bill before he leaves office. But, as I have long been saying, an array of political, policy and practical challenges lead me always to be mostly pessimistic about the prospects of significant congressional action on this front.

December 3, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Interesting accounting of capital defense costs in Colorado

The Denver Post has this interesting new piece on capital defense costs headlined "Colorado public defenders spent $6.3 million on death penalty cases: Colorado Public Defender's office spent $6.3 million on 10 cases in which prosecutors filed a notice to see the death penalty since 2002." Here is an excerpt:

The Colorado Public Defender's office has spent a combined $6.3 million on death penalty cases during the past 13 years. In response to a request from The Denver Post, the office on Tuesday released its aggregate cost of handling death penalty cases between July 12, 2002 and Oct. 31, 2015.  During that time period, public defenders handled a total of 10 cases in which prosecutors filed a notice of intent to seek the death penalty.

Most recently, public defenders represented Aurora theater shooter James Holmes and Dexter Lewis, who stabbed five people to death in a Denver bar. Prosecutors sought the death penalty in both cases.  Both men were sentenced to life in prison after lengthy trials this summer....

The $6.3 million total includes expenses the office incurred in handling the cases and the "best estimate of the portion of" salaries that can be attributed to death penalty cases.  The office said it did not hire additional staff specifically for death penalty cases. During the 13-year period, the office spent $1,989,453 on expenses incurred on death penalty cases. For that same period, the office paid $4,343,484 in salaries related to handling death penalty cases.

December 3, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

Wednesday, December 02, 2015

"The Promises and Perils of Evidence-Based Corrections"

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

Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years.  After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed.  Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called "evidence-based practices" designed to reduce prison populations and their associated fiscal and human costs.  These practices "which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques" are based on criminological research about "what works" to reduce convicted individuals' odds of committing future crimes.

Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state.  In their reliance on aggregate data and classification, many such practices have as much in common with the "new penology" that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent.

Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control.  Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state.

December 2, 2015 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Tuesday, December 01, 2015

Split Ohio Supreme Court reverses death sentence based on statutory "independent evaluation"

As reported in this Reuters piece, a "man who beat a female neighbor to death with a baseball bat when he was a teenager had a troubled family background and childhood of drug and alcohol abuse and should not have been sentenced to death, the Ohio Supreme Court ruled on Tuesday.'  Here is more about the notable capital ruling and some reactions thereto:

The court in a 4-3 decision vacated the death sentence of Rayshawn Johnson, who was 19 years old when he killed Shanon Marks in 1997 in a Cincinnati neighborhood.... "The sentence of death imposed by the trial court is not appropriate in this case," Justice Paul Pfeifer wrote for the majority.

Johnson had been sentenced to death twice in the killing, most recently in 2012 after a federal court set aside the initial sentence, ruling that jurors should have been allowed to consider his difficult childhood at a sentencing hearing.

“I think the message is that courts need to give meaningful consideration to the mitigation that is presented on behalf of clients.  His life story, all of those things, the negative influences… the significant trauma … comes back later in life in unfortunate ways,” said Ohio Public Defender Timothy Young, whose office represents Johnson....

"What's kind of mindboggling about this decision is that -- I have to be careful because we have rules not to criticize judges so I'm not going to do that.  But what is frustrating, and this poor family, my god, we went through basically two trials already," Hamilton County Prosecuting Attorney Joseph Deters told reporters.

The lengthy ruling in Ohio v. Johnson, No. 2015-Ohio-4903 (Ohio Dec. 1, 2015), is available at this link, and here is a key pargraph from the start of the majority opinion:

In 2011, the state conducted a new mitigation hearing. A new judge presided over the hearing, and 12 new jurors recommended a sentence of death. The trial court again imposed a death sentence, and we now review Johnson’s direct appeal as of right from that sentence. We find that there were no significant procedural defects in the new mitigation hearing, but, pursuant to our independent evaluation of the sentence under R.C. 2929.05(A), we determine that the aggravating circumstances in this case do not outweigh beyond a reasonable doubt the mitigating factors. We accordingly vacate the sentence of death and remand the cause to the trial court for resentencing consistent with R.C. 2929.06.

December 1, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, November 30, 2015

Notable SCOTUS dissent from cert denial in habeas case from Sixth Circuit

This morning the Supreme Court came back to work after a few weeks on argument hiatus, and its first formal action was to release this order list full of cert denials and no grants of review in any new cases. There was this one notable dissent from the denial of cert in the habeas case of Rapelje v. Blackston authored by Justice Scalia and joined by Justices Thomas and Alito. Here is how the three-page dissent starts and ends:

A criminal defendant “shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const., Amdt. 6.  We have held that this right entitles the accused to cross-examine witnesses who testify at trial, and to exclude certain out-of-court statements that the defendant did not have a prior opportunity to cross-examine.  Crawford v. Washington, 541 U.S. 36, 50–51 (2004); Davis v. Alaska, 415 U. S. 308, 315–317 (1974).  We have never held — nor would the verb “to confront” support the holding—that confrontation includes the right to admit out-ofcourt statements into evidence.  Nevertheless, the Sixth Circuit held not only that the Confrontation Clause guarantees the right to admit such evidence but that our cases have “clearly established” as much.  We should grant certiorari and summarily reverse....

There may well be a plausible argument why the recantations [offered by the defendant] ought to have been admitted under state law.  See Mich. Rule Evid. 806.  But nothing in our precedents clearly establishes their admissibility as a matter of federal constitutional law.  AEDPA “provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.”  White v. Woodall, 572 U. S. ___, ___ (2014) (slip op., at 11).  By framing the confrontation right at a high level of generality (making it the right “to impeach the credibility of an adverse witness”), the Sixth Circuit in effect “transform[ed] . . . [an] imaginative extension of existing case law into ‘clearly established’” law.  Jackson, supra, at ___ (slip op., at 7). That will not do.

The Sixth Circuit seems to have acquired a taste for disregarding AEDPA.  E.g., Woods v. Donald, 575 U. S. ___ (2015) (per curiam); White v. Woodall, supra; Burt v. Titlow, 571 U. S. ___ (2013); Metrish v. Lancaster, 569 U. S. ___ (2013); Howes v. Fields, 565 U. S. ___ (2012).  We should grant certiorari to discourage this appetite.

November 30, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Detailing how Ohio prosecutors, armed with LWOP options, are migrating away from capital charges

19271024-largeThis recent local article, headlined "Eluding death: Ohio prosecutors charge far fewer capital murder cases," spotlights the role that local prosecutors are playing in changing the death penalty landscape in the Buckeye State. Here are excerpts:

Prosecutors across Ohio are changing the way they charge suspected killers.  They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.

The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year. During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.

The Ohio numbers mirror a national trend involving the death penalty.  Legal experts cited the high costs of taking a capital case to trial.  They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families....

As the death penalty in Ohio sits stalled in a moratorium over the drugs used in executions, the emerging trends of how prosecutors handle aggravated murder cases offer insight into the way justice is meted out in Ohio courtrooms. "We simply are not charging people with the death penalty like we once did," said Michael Benza, a senior instructor of law at the Case Western Reserve University School of Law....

Since late 2012, when Prosecutor Timothy J. McGinty took office, five men have been indicted on death-penalty charges. But there were 75 cases that met the criteria for the penalty, according to prosecutors' records. That means McGinty's office pushed the death penalty in less than 7 percent of the possible cases....  Compare McGinty's record to his predecessor, Bill Mason: From 2009 through much of 2012, Mason's office indicted 89 death-penalty cases out of a possible 114 that met the requirements for the charge, or 78 percent, according to prosecutors' records.

McGinty told The Plain Dealer that he believes in the death penalty when going after the worst of the worst. "The death penalty used in the correct case — a case that leaves no doubt — is, I believe, a strong deterrent to crime," McGinty said. "But the endless appeals process has undermined the death penalty.  In every case, I have to ask, 'Are we going to survive this?'  We have to take a case to a judge and jury and then face 25 years of appeals.  Is it fair to families of victims?  Is it fair putting them through a quarter century of appeals?'

Since taking office, McGinty has used an internal office review committee to examine whether the death penalty is justified in each case brought to his office.  Specifically, the panel looks at whether the crime fits the letter and spirit of the law, whether a reasonable jury would return a guilty verdict and whether it would be worth the resources to spend decades fighting the appeals. Based on the panel's recommendation and the family's wishes, McGinty makes the decision.

Life in prison without parole became an option to jurors in death-penalty cases in 1995.  Ten years later, state lawmakers made it possible for prosecutors to seek the life-without-parole sentence in other murder cases.  Years later, the trends have become quite clear.

* Death-penalty indictments dropped 77 percent, going from 81 in 2010 to 19 this year, according to records from the Ohio Public Defender's Office.

* The number of felons convicted of murder and sentenced to life in prison without parole has jumped 92 percent, going from 283 in January 2010 to 544 in October, according to state prison records.  The inmates make up about 1 percent of the 50,370 inmates in the system.

* It costs $22,836 a year to house an inmate in Ohio.  Since there are 544 serving sentences of life without parole, that means the total dollar amount for the group is $12.4 million a year.  Because many are under the age of 35, the costs will grow for years to come.

But counties and the state also bear major costs in death-penalty trials. The trials can cost hundreds of thousands of dollars prosecuting and defending complex cases at trial — and much more during the appeals process. Ohioans to Stop Executions cited a study by WHIO-TV in Dayton that found it costs $3 million to execute a person in Ohio — from arrest to death. By comparison, the television station found, it costs $1 million to keep an inmate in prison for the rest of his or her life....

For years, Ohio Public Defender Tim Young has pushed the sentence of life without parole.  "It is a good thing as an alternative to the death penalty for a myriad of reasons," Young said. "There's closure for the family, and it is cheaper to put a person in prison for life than litigating the case for 15 to 20 years. At the end of the day, it's a good thing for our society."

Others disagree.  "Yes, life without parole is the lesser of two evils, but we have to be careful of applauding these sentences," said Ashley Nellis, the senior researcher at the Sentencing Project, a Washington, D.C., group that seeks criminal justice reform.  "It would be wrong to simply toss them away and forget about them."

Nellis said she is not opposed to sending the most violent convicts to prison for life.  But she believes that their cases should be reviewed.  "These people should not be kicked to the curb," she said. "Life in prison is a death sentence, without the execution."  If there is enough evidence that shows the inmates have grown and matured behind bars, Nellis said, then they should receive consideration before the parole board or judge.

November 30, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, November 29, 2015

Hawaii Supreme Court refuses to exempt recidivist enhancement from Apprendi mandates

A helpful reader alerted me to a notable ruling last week by the Hawaii Supreme Court rejecting broad application of Apprendi's prior conviction exception. Hawaii v. Auld, No. SCWC-13-0002894 (Haw. Nov. 24, 2015) (available here), which discusses Alleyne and Almendarez-Torres at length, is a must-read for all hard-core Apprendi fans. It concludes this way:

We hold that, under article I, sections 5 and 10 of the Hawai'i Constitution, the State must allege the predicate prior conviction(s) in a charging instrument in order to sentence the defendant to a mandatory minimum sentence as a repeat offender under HRS § 706-606.5.  We further hold that, as a matter of state law, Apprendi’s “fact of prior conviction” exception does not apply to repeat offender sentencing under HRS § 706-606.5, and that a jury is required to find that the defendant’s prior conviction(s) have been proved beyond a reasonable doubt to trigger the imposition of a mandatory minimum sentence under that statute.  As these new rules result from the express overruling of prior appellate precedent holding that the Apprendi rule did not apply to mandatory minimum sentencing and that notice of repeat offender sentencing did not need to be given in a charging instrument, they are given prospective effect only.

November 29, 2015 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Pollard, parole and the possibilities for potent sentencing reform

Writing at Salon, Daniel Denvir has this interesting and useful take on the recent release of convicted spy Jonathan Pollard. Here is the full headline of this piece: "People are celebrating this spy’s release from prison. Here’s what they should be doing instead. Jonathan Pollard sold intel to Israel. 30 years later, he's free. But thousands of others have no chance of parole." Here are excerpts:

Last Friday, something extraordinary happened: Jonathan Pollard, a Naval intelligence analyst sentenced to life in prison for extensively spying for Israel, was released from federal prison on parole 30 years after his arrest. Most coverage, now and in recent decades, has focused on the campaign waged by Israeli and Jewish-American leaders to free him, and the vehement opposition mounted by American intelligence figures.

The real scandal, however, is that most federal prisoners, including drug offenders make up nearly half of a federal prison population of nearly 200,000, have no chance at parole. Pollard’s crime was incredibly serious, and many drug offenders who committed crimes orders of magnitude less harmful are serving harsh mandatory minimums of 5, 10 and 20 years, if not life — all without the possibility of parole.

Pollard’s release has been covered in the context of national security intrigue. In fact, his parole reflects a quirk in federal sentencing law: He had a shot at parole because he committed his crime before parole eligibility was abolished for all those convicted of committing a federal crime on or after November 1, 1987, amidst a wave of tough-on-crime politicking.

Pollard is a true anomaly. According to a 2014 Congressional Research Service report, roughly 3 percent of federal prisoners are eligible for parole. When Pollard finally speaks to the media—he is reportedly not allowed to under the conditions of his parole—it would be good of him to express some solidarity with the far less dangerous fellow federal inmates he left behind.

The abolition of federal parole, and its sharp limitation or elimination in many states, has, like the introduction of harsh mandatory minimum sentences, been a major driver of this country’s extraordinary prison population boom. From 1988 to 2012, the average time federal inmates served rose from 17.9 to 37.5 months, according to The Pew Charitable Trusts. The federal prison population rose during that same period from 49,928 inmates to 217,815....

Releasing Pollard was not a bad thing. Few people deserve punishment without end. We punish most every crime far too harshly in the United States, which is how we came to construct a system of human punishment unmatched by any nation on earth. But Pollard’s crimes were extremely serious. Compare his crimes to those committed by Alton Mills, who is serving a life without parole sentence after being convicted of couriering crack because of two prior, extremely minor, drug possession convictions. Mills’ family misses him too. And desperately so.

It’s not just a federal problem but also a matter for the states, where the bulk of American prisoners are incarcerated. Fourteen states joined the federal government in eliminating or severely restricting parole, according to a Marshall Project investigation.

“In the early 1990s, the New York state board voted to parole more than 60 percent of those eligible. That rate then went into a two-decade decline, dipping below 20 percent in 2010,” the investigation found. “In many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.”

Sen. Bernie Sanders, a Democratic candidate for president, has introduced legislation that would reestablish federal parole. Most media attention has been focused on bill provisions banning private prisons. But reestablishing parole would be far more consequential. (The Clinton campaign did not respond to requests for comment.)

Way back in 2009 in this Symposium article published in the Florida Law Review, I made the claim that model modern sentencing reforms should include parole mechanisms because "parole boards possess both the effective legal tools and an ideal institutional perspective to reduce incarceration rates and mitigate extreme punishments." I therefore agree wholeheartedly agree with the suggetion in Denvir's piece that reinstituting robust parole mechanisms and opportunities in many sentencing systems would provide a truly potent path for future sentencing reforms.

November 29, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, November 27, 2015

Might Prez Obama seek to do something bold on the death penalty in his final year?

The question in the title of this post is prompted by this new AP article, headlined "Obama Still Pondering Death Penalty's Role in Justice System."  Here are excerpts:

Even as President Barack Obama tries to make a hard case for overhauling sentences, rehabilitating prisoners and confronting racial bias in policing, he has been less clear about the death penalty.  Obama has hinted that his support for capital punishment is eroding, but he has refused to discuss what he might call for.

A Justice Department review has dragged on for 18 months with little mention or momentum.  The president recently repeated he is "deeply concerned" about the death penalty's implementation, though he also acknowledges the issue has not been a top priority. "I have not traditionally been opposed to the death penalty in theory, but in practice it's deeply troubling," Obama told the Marshall Project, a nonprofit journalism group, citing racial bias, wrongful convictions and questions about "gruesome and clumsy" executions.  His delay in proposing solutions, he said, was because "I got a whole lot of other things to do as well."

Obama said he plans to weigh in, and considers the issue part of his larger, legacy-minded push for an overhaul of the criminal justice system. White House officials say the president is looking for an appropriate response and wading through the legal ramifications.

Capital prosecutions are down across the United States.  A shortage of lethal injection drugs has meant de facto freezes in several states and at the federal level.  Spurred in part by encouragement from Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg, advocates are debating whether the time is right to push the court to take a fresh look at whether the death penalty is constitutional....

Obama isn't alone in struggling with the issue.  "We have a lot of evidence now that the death penalty has been too frequently applied and, very unfortunately, often times in a discriminatory way," Democratic presidential candidate Hillary Rodham Clinton said.  "So I think we have to take a hard look at it."  She also said she does "not favor abolishing" it in all cases.

For Clinton's Democratic presidential rival, Vermont Sen. Bernie Sanders, the issue is settled. "I just don't think the state itself, whether it's the state government or federal government, should be in the business of killing people," he said.  On the Republican side, candidate Jeb Bush says he's swayed by his Catholic faith and is "conflicted."...

In September, Pope Francis stood before Congress and urged that the death penalty be abolished. Obama specifically noted the comment when talking about the speech to aides. White House spokesman Josh Earnest said Obama was "influenced" by what the pope said. Such hints have death penalty opponents likening Obama's deliberations to his gradual shift toward supporting gay marriage.

Charles Ogletree, a Harvard law professor who taught the president, said: "Though not definitive, the idea that the president's views are evolving gives me hope that he — like an increasing number of prosecutors, jurors, judges, governors and state legislators — recognizes that the death penalty in America is too broken to fix."

White House officials caution that any presidential statement disputing the effectiveness or constitutionality of the death penalty would have legal consequences.  For example, would the administration then commute the sentences of the 62 people currently on federal death row to life in prison?

I suspect hard-core capital abolitionists are growing ever more eager to hear Prez Obama say ASAP that he has evolved now to believe, in the words of Prof Ogletree, that "the death penalty in America is too broken to fix."  But any statement by Prez Obama to that effect would likely trigger a significant backlash among an array of GOP leaders (including most running to be Prez), and could refocus death penalty debate away from persistently problematic state capital cases to higher-profile (and less problematic) federal capital cases like the Boston Marathon bomber.  With another White House occupant coming soon, I am not sure such a change in focus would enhance the success of the broader abolitionist effort in the long run.

This all said, I could still imagine Prez Obama and his Justice Department moving ahead on a number of lower-profile efforts that would continue to advance an abolitionist agenda.  DOJ could file SCOTUS amicus briefs in support of state capital defendants or provide additional funding for research on some of the issues Justice Breyer flagged as the basis for a broadsided constitutional attack on the death penalty.  And I would not be at all surprised if Prez Obama around this time next year, when he is a true lame duck and we all know who will be following him into the Oval Office, does something genuinely bold in this arena.

Speaking of doing something genuinely bold, the headline of this San Francisco Chronicle piece provides one possibility: "Obama considers clemency for 62 federal Death Row prisoners." Here is an excerpt from the extended piece:

The bulk of the more than 3,000 Death Row inmates nationwide, including nearly 750 in California, were sentenced under state law.  They are beyond the president’s authority.  But, by commuting federal prisoners’ sentences to life without the possibility of parole, Obama would stamp the issue as part of his legacy and take a bold action that no successor could overturn.

It is “a quantitatively small gesture that could make the point he’d want to make,” said Stanford Law Professor Robert Weisberg, co-director of the law school’s Criminal Justice Center and a veteran death penalty lawyer.  Like other commentators, he offered no prediction of what action Obama would take, but said the president would probably wait until after the November 2016 election, to avoid voter reaction against whoever the Democratic candidate is.

November 27, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, November 26, 2015

So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...

I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration.  The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment."  Here are excerpts:

Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.

Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive.  Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.

Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation.  The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.

So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....

After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time.  Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”

U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.

Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences.  Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....

In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.

Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades.  In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution.  Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....

Some federal prosecutors have declined requests by federal judges for shorter sentences.  In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy...  Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions.  The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014.  “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.

U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.

November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

So thankful for the renewed focus on federal clemency... but...

I am still annoyed and troubled that it still seems Prez Obama is more committed to making headlines with the silly annual tradition of pardoning turkeys than with clemency grants to federal defendants seeking commutations while serving excessively long sentences or those seeking relief from the collateral consequences of long-ago federal convictions.  This article, headlined "Obama pardons TOTUS — the Turkey of the United States," discusses the latest clemency work of Prez Obama in this arena:   

President Obama seemed to be trying out a Thanksgiving-themed comedy club act Wednesday as he engaged in the traditional White House turkey pardoning. "Feel free to keep on gobbling," Obama told the Rose Garden crowd as he announced that, also per tradition, two turkeys would be spared this Thanksgiving Eve.

"I can announce that the American people have spoken, and we have two winners," he said. "Their names are Honest and Abe — I confess that Honest looks like good eating, but this is a democracy." With daughters Malia and Sasha at his side, Obama declared that "Abe is now a free bird" and will now be designated "TOTUS — the Turkey of the United States."...

During the Rose Garden ceremony, Obama thanked his daughters "for once again standing here with me during the turkey pardoning ... They do this solely because it makes me feel good — not because they actually think that this is something I should be doing."...

The president weighed in on one of the Thanksgiving football games, sticking up for his hometown Chicago Bears. "I'm grateful for the fact the Bears are going to beat the Packers this weekend," Obama said (though it must be said that the Pack is a big favorite, and the game is in Green Bay).

He also took an obligatory poke at the news media: "I've got to listen to my critics say I'm often too soft on turkeys, and I'm sure the press is digging into whether or not the turkeys I've pardoned have really rededicated their lives to being good turkey citizens."

Obama pointed out that this was his seventh turkey pardoning as president. "Time flies," he said. "Even though turkeys don't."  As the crowd chuckled. Obama said: "I thought it was good. You think it's funny too, don't you?" Also: "I know some folks think this tradition is a little silly. I do not disagree."

November 26, 2015 in Clemency and Pardons, Who Sentences? | Permalink | Comments (11)

So thankful for federal sentencing reform moving ahead in Congress... but...

this recent article from the New York Times highlights why I will not celebrate the reform movement's accomplishments until a bill is being signed by the President.  The article, headlined "Rare White House Accord With Koch Brothers on Sentencing Frays," details what has become more controversial elements of bipartisan criminal justice reform efforts.  Here are excerpts:

For more than a year, a rare coalition of liberal groups and libertarian­minded conservatives has joined the Obama administration in pushing for the most significant liberalization of America’s criminal justice laws since the beginning of the drug war.  That effort has had perhaps no ally more important than Koch Industries, the conglomerate owned by a pair of brothers who are well­known conservative billionaires.

Now, as Congress works to turn those goals into legislation, that joint effort is facing its most significant test — over a House bill that Koch Industries says would make the criminal justice system fairer, but that the Justice Department says would make it significantly harder to prosecute corporate polluters, producers of tainted food and other white­collar criminals.

The tension among the unlikely allies emerged over the last week as the House Judiciary Committee, with bipartisan support, approved a package of bills intended to simplify the criminal code and reduce unnecessarily severe sentences. One of those bills — which has been supported by Koch Industries, libertarians and business groups — would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.

Many laws already carry such a requirement — known as “mens rea” — but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws.  Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.

If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.

The debate over the bill, sponsored by Representative Jim Sensenbrenner, Republican of Wisconsin, has become particularly complicated for House Democrats, who have been warned that its passage would be essential for obtaining support from Republicans for a larger package of criminal justice bills.  Many liberal Democrats see this session of Congress as a rare chance to address what they see as significant unfairness in the criminal justice system.  Many of them feel that anything that jeopardizes that opportunity, like trying to block Mr. Sensenbrenner’s bill, is not worth doing.  Two liberal members of the Judiciary Committee, Representatives John Conyers Jr. of Michigan and Sheila Jackson Lee of Texas, were co­sponsors of the bill.

Mr. Conyers, in a statement on Tuesday, said he supported the bill, which the Judiciary Committee approved by voice vote last week, because outside parties had raised “a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.”  But he said he was committed to finding a way to address the Justice Department’s concern....

“There are some groups on the left that mistrust the people who have put this proposal forward,” said John G. Malcolm, who served in the Justice Department’s criminal division during the Bush administration.  He now works at the Heritage Foundation, a conservative research center, where he has aggressively pushed for the change in the mens rea provisions.  “It is an unfair and unwarranted characterization,” he added.

Koch Industries and conservative groups have some important liberal allies on the matter, including the National Association of Criminal Defense Lawyers. Norman L. Reimer, the organization’s executive director, said it was not surprising the Justice Department opposed the legislation. “D.O.J. is always up in arms over anything that looks like they’d have to do their jobs,” he said.  If the Justice Department’s job was harder in some cases, he said, that would be a good thing. For example, he cited a case in which prosecutors charged a fisherman with violating federal accounting laws by tossing undersized fish overboard. (Koch Industries made a major donation to the defense lawyers’ group last year.)

November 26, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, November 25, 2015

Intriguing findings on race and criminal justice issues from 2015 American Values Survey

Screen-Shot-2015-11-11-at-1.18.33-PM-640x826I just came across this recently released publication by the Public Religion Research Institute, which "conducted the 2015 American Values Survey among 2,695 Americans between September 11 and October 4, 2015."  The lengthy survey report, titled "Anxiety, Nostalgia, and Mistrust: Findings from the 2015 American Values Survey," covers lots of ground on lots of issues, and the last four pages discuss findings under the heading "Race and the Criminal Justice System."  Here are just a few highlights from this discussion:

Most Americans do not believe that police officers treat blacks and other minorities the same as whites.  Only about four in ten (41%) Americans say that the police generally treat racial and ethnic groups equally, while nearly six in ten (57%) disagree....  

White Americans are divided in their views about police treatment of racial minorities. Half (50%) say police officers generally treat blacks and other minorities the same as whites, while 48% disagree.  In contrast, more than eight in ten (84%) black Americans and nearly three-quarters (73%) of Hispanic Americans say police officers do not generally treat non-whites the same as whites....

Additionally, more than six in ten Republicans (67%) and Tea Party members (63%) say police treat blacks and other minorities the same as whites, while only about one-quarter (23%) of Democrats agree. Three-quarters (75%) of Democrats — including two-thirds (67%) of white Democrats — say that police do not treat blacks and whites the same.  The views of political independents closely mirror the general public....

Americans’ views on racial disparities in the criminal justice system largely mirror views on racial disparities in treatment by police.  Nearly six in ten (58%) Americans do not believe blacks and other minorities receive equal treatment as whites in the criminal justice system, while four in ten (40%) believe they are treated equally.  In 2013, Americans were evenly divided on whether nonwhites receive the same treatment as whites in the criminal justice system (47% agreed, 47% disagreed).

There are stark racial and ethnic divisions in views about the fairness of the criminal justice system.  White Americans are closely divided: slightly less than half (47%) say blacks and other minorities receive equal treatment as whites in the criminal justice system, while a slim majority (52%) disagree.  In contrast, more than eight in ten (85%) black Americans and two-thirds (67%) of Hispanic Americans disagree that minorities receive equal treatment in the criminal justice system.

White Americans’ attitudes on racial disparities in the criminal justice system differ substantially by class.  White working-class Americans are divided: 52% say blacks and other minorities receive equal treatment as whites in the criminal justice system, while 47% disagree.  In contrast, just 36% of white college-educated Americans say whites and non-whites are treated equally in the criminal justice system, while nearly two-thirds (64%) disagree.

Partisan divisions on this issue closely mirror divisions on the question of police treatment of whites versus non-whites. More than six in ten Republicans (64%) and Tea Party members (65%) say blacks and other minorities are treated the same as whites in the criminal justice system, while about three-quarters (74%) of Democrats disagree.  The views of independents are identical to the views of Americans overall....

When asked which punishment they prefer for people convicted of murder, a majority (52%) of Americans say they prefer life in prison with no chance of parole, compared to 47% who say they prefer the death penalty.  Views about the death penalty have held roughly steady since 2012 when the public was closely divided.

Partisan attitudes on this question are mirror opposites.  Two-thirds (67%) of Republicans prefer the death penalty over life in prison with no chance of parole for convicted murderers, while nearly two-thirds (65%) of Democrats prefer the opposite. The attitudes of independents mirror the general population.

Americans are also closely divided over whether there are racial disparities in death penalty sentencing.  A majority (53%) of Americans agree that a black person is more likely than a white person to receive the death penalty for the same crime, while 45% of Americans disagree.  American attitudes about the way that the death penalty is applied are virtually unchanged from 1999, when half (50%) of Americans said a black person is more likely than a white one to be sentenced to the death penalty for an identical crime, and 46% disagreed.

American attitudes about the fairness of death penalty sentences continue to be sharply divided along racial and ethnic lines.  More than eight in ten (82%) black Americans and roughly six in ten (59%) Hispanic Americans, compared to fewer than half (45%) of white Americans, report that a black person is more likely than a white person to receive a death penalty sentence for the same crime.  A majority (53%) of white Americans disagree.  White Americans’ views on this question differ significantly by social class.  A majority (54%) of white college-educated Americans say a black person is more likely than a white person convicted of the same crime to receive the death penalty, compared to four in ten (40%) white working-class Americans.  A majority (58%) of white working-class Americans say that this is not the case.

Consistent with previous patterns, there are stark partisan divisions in views about the administration of the death penalty.  Roughly six in ten (64%) Republicans and Tea Party members (58%) do not believe a black person is more likely than a white one to be sentenced to the death penalty for the same crime, while fewer than three in ten (28%) Democrats agree.  Seven in ten (70%) Democrats say that a black person is more likely than a white person to receive the death penalty.  Independents are evenly divided over whether a black person convicted of the same crime as a white person is more likely to receive the death penalty (49% agree, 49% disagree).

There is a strong correlation in views about how fairly the death penalty is applied and support for it as punishment for people convicted of murder.  A majority (59%) of those who say that there is no racial disparity in death penalty sentencing support capital punishment, compared to 37% who say there are racial disparities.

November 25, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Tuesday, November 24, 2015

Outgoing Kentucky Gov restores voting rights to many thousands of nonviolent felons

As reported in this AP article, the "outgoing Democratic governor of Kentucky signed an executive order Tuesday to restore the right to vote and hold public office to thousands of non-violent felons who've served out their sentences."  Here is more:

The order from Gov. Steve Beshear — who leaves office next month — does not include those convicted of violent crimes, sex offenses, bribery or treason. Kentucky already restores voting rights to some nonviolent convicted felons, but the felon must apply to the governor's office, which approves them on a case by case basis. This new order automatically restores voting rights to convicted felons who meet certain criteria upon their release. Those who have already been released can fill out a form on the state Department of Corrections' website.

"All of our society will be better off if we actively work to help rehabilitate those who have made a mistake," Beshear said. "And the more we do that, the more the entire society will benefit."

Kentucky was one of four states that did not automatically restore voting rights to felons once they completed all the terms of their sentences. About 180,000 in Kentucky have served their sentences yet remain banned from casting ballots. The Kentucky legislature has tried and failed numerous times to pass a bill to restore voting rights to felons. The Republican-controlled Senate would agree only if there was a five-year waiting period, which Democrats refused....

Democrats control state government until next month, when Republican Gov.-elect Matt Bevin takes office. Bevin could repeal Beshear's order or allow it to stand. Bevin spokeswoman Jessica Ditto said Bevin supports restoring voting rights to nonviolent offenders, but added he was not notified of Beshear's order until a few minutes before he announced it. "The Executive Order will be evaluated during the transition period," she said.

Republican State Rep. Jeff Hoover, the minority floor leader of the state House of Representatives, said he supports restoring voting rights to convicted felons but opposes Beshear's method of doing it. "It should be the role of the legislature, not one person, which should address these issues through legislative debate," Hoover said in a news release. "This is a prime example of this Governor following in the footsteps of President Obama and putting his own agenda above the people of Kentucky and the elected legislators who serve them."

November 24, 2015 in Clemency and Pardons, Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (13)

"Is Congress Ready to Back a New Crime Commission?"

Download (4)The question in this title of this post is the headline of this recent Crime Report piece by Ted Gest.  Here are excerpts:

Growing Congressional interest in justice reform has improved the prospects for creation of a National Criminal Justice Commission that can spearhead a "top to bottom review" of the justice system, says Sen. Gary Peters (D-MI). Peters told the American Society of Criminology [last week] that the time was "long overdue" for a national effort similar in scope to the Commission on Law Enforcement and Administration of Justice created by President Lyndon B. Johnson in 1965.

At a panel marking the 50th anniversary of the LBJ initiative, Peters was joined by staff members of the original commission for a discussion of the challenges and prospects of a new national effort to muster support for innovation in criminal justice.

Criminologist Alfred Blumstein of Carnegie Mellon University said a new panel could tackle a number of major national issues, including high incarceration rates and overcriminalization. But he also noted that a commission with members named by the president and Congressional leaders, as proposed by the current bill to establish the body, could lead to political polarization.

Peters is a leading sponsor of the bill, which has has been endorsed by organizations of police and prosecutors, and has 20 co-sponsors in the Senate. A similar plan by former Sen. Jim Webb (D-VA) fell short because he failed to win much Republican support. But this time around, Peters has the backing of Sen. John Cornyn (R-TX), the deputy majority leader, and Sen. Lindsey Graham (R-SC), a conservative Judiciary Committee member.

Peters, who formerly represented Detroit as a member of the House and is familiar with that city's longstanding crime problems, listed some of the issues that a new commission could address, such as grand juries that are reluctant to charge police officers who shoot citizens, the challenges of former prisoners trying to re-enter society, and flawed forensic science procedures that do not provide accurate evidence in criminal cases....

Earlier this year, a task force on 21st century law enforcement named by President Obama called for a broader presidential task force on the entire criminal justice system. The Peters-Cornyn-Graham bill would go further, creating a 14-member panel that would issue a report within 18 months.

In a discussion of the bill, Washington lawyer Sheldon Krantz, another original staff member of the LBJ panel, said the 1960s panel worked well partly because its voting members were not entrenched criminal justice experts, and they relied on a professional staff that lacked "political infighting."

Laurie Robinson of George Mason University, former assistant U.S. Attorney General for justice programs, said a new commission could pose and answer basic questions of "what do we want for the nation's criminal justice system?" She noted that public opinion on such issues as policing, drugs, and overcriminalization has changed in the past few years. In the national discussion that followed the Ferguson police killing of Michael Brown last year, "the ground is shifting, the terrain is changing," she said.

November 24, 2015 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, November 23, 2015

US District Judge Bennett finds legal limit to giving retroactive effect to new lower federal drug sentencing guidelines

Regular readers know that US District Judge Mark Bennett regularly produces thoughtful and thorough opinions on an array of cutting-edge federal sentencing issues.  The latest Judge Bennett opus arrived today via US  v. Feauto, No. CR 12-3046-MWB (D. Iowa Nov. 23, 2015) (available for download below).  As this start to the Feauto opinion reveals (with lengthy footnotes left out and breaks added), Judge Bennett's latest work likely means a not-so-happy Thanksgiving week for at least on federal defendant:

Before me for consideration is defendant Randy Feauto’s eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782, the “All Drugs Minus Two Amendment,” to the United States Sentencing Guidelines.  The parties and the Federal Defender for the Northern and Southern Districts of Iowa, as invited amicus curie, argue that a defendant subject to a mandatory minimum sentence who previously received a “substantial assistance” reduction below that mandatory minimum can be resentenced pursuant to Amendment 782 without regard to the mandatory minimum.  That position was originally music to my ears, because I have consistently — and vehemently — disagreed with the harshness of most mandatory minimum sentences.  In fact, in most of the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.  I would often inform or remind defendants and their families and supporters in the courtroom that reform of mandatory minimum sentencing must come from the legislative branch of our federal government — Congress.

So it is with significant irony, but consistent with my view that only Congress has the authority to waive mandatory minimum sentences (with the exception of substantial assistance motions, pursuant to § 3553(e) and FED. R. CRIM. P. 35(b), and “safety valve” eligibility, pursuant to § 3553(f)), that I disagree with the parties’ argument that the Sentencing Commission has the authority to use Amendment 782, or any other amendment to the Sentencing Guidelines, to “nullify” a mandatory minimum sentence established by Congress.  For the reasons set forth below, my understanding is that only Congress itself, not the Sentencing Commission or the Judicial Branch, has that power.  Consequently, the proper net effect of Amendment 782, applied either retroactively or prospectively, is that it can only reduce the sentence of a defendant who originally received a reduction for substantial assistance if he had no mandatory minimum or both his original guideline sentence and his amended guideline sentence are above his mandatory minimum.  Feauto is not such a defendant.

I fully recognize that, like the vast majority of mandatory minimum sentences themselves, this construction leads to a harsh result, but fidelity to the rule of law and principles of non-delegation and separation of powers trumps any personal views on the harshness of federal sentencing.  As discussed below, the construction urged by the parties and amicus creates an Alice In Wonderland like scenario in which the retroactive application of Amendment 782 opens a rabbit hole that Feauto, instead of Alice, falls through and receives a lower sentence in Wonderland than if he were originally sentenced today for his crime with the application of post-Amendment 782.  Surely, this Mad Tea Party scenario creates the very kind of unwarranted disparity the guidelines were intended to avoid.

Download Feauto.Final Opinion.final.112315

November 23, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

NY Times editorial: "Cut Sentences for Low­-Level Drug Crimes"

This New York Times editorial provides a glimpse into the latest state (and notable criticisms) of federal statutory sentencing reform making slow-but-steady progress in Congress. Here is how it starts and ends:

Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.

The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts.  That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.

The new sentencing­-reform bills now moving through the Senate and House would help reduce some of the longest mandatory­-minimum sentences, including ending the use of life without parole for drug crimes, and would give judges more power to impose a shorter sentence when the facts of a case warrant it.

But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, non-violent crimes, and have no serious history of violence. More than half of the current drug­-offender population has no violent history at all, according to a new analysis by the Urban Institute and the Charles Colson Task Force on Federal Corrections.  Less than 14 percent were sentenced for using or threatening to use violence, or directing its use.  And only 14 percent were sentenced for having a high-­level or leadership role in a drug operation, the study found....

A critical fix Congress could make right now would be to change the law so that a person’s sentence is determined by his role in a drug operation, and not by the entire amount of drugs found in that operation, which is a poor measure of culpability.

One version of the sentencing reform legislation, introduced in the House by Jim Sensenbrenner, Republican of Wisconsin, and Robert Scott, Democrat of Virginia, would have addressed this issue squarely by applying many mandatory minimum sentences only to the leaders of a drug organization. But that smart idea was heavily watered down in the bills passed by the Senate and House Judiciary Committees in recent days.  Congress should resurrect this sensible provision, which would go a long way toward bringing some basic fairness and rationality back into the nation’s horribly skewed drug laws.

Some recent related posts:

November 23, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Would dueling initiatives in California bring capital clarity or continued confusion?

The question in the title of this post is prompted by this Orange County Register editorial, which is headlined "Cloudy prospects for death penalty in California." Here are excerpts:

Is the death penalty viable in California? Until recently, opposing it usually meant political suicide at the state level. In 1986, Rose Bird, chief justice of the California Supreme Court and Gov. Jerry Brown’s appointee, was booted from office by voters after she overturned 64 straight death-penalty convictions.  So were two like-minded associate justices.

After that, even Democrats promised to execute the worst criminals.  Democratic Gov. Gray Davis executed five men. His successor, Arnold Schwarzenegger, terminated three, the last being Clarence Ray Allen, convicted of organizing three murders.... In 2012, voters defeated Proposition 34, which would have repealed capital punishment in California....

In recent years, the death penalty has been suspended because of accusations the “drug cocktail” used in executions violated the Eighth Amendment’s guarantee against “cruel and unusual punishments.”  However, as the Register’s Martin Wisckol reported last week, “Death penalty advocates cheered two incremental steps this month: The Department of Corrections will proceed with the review process toward replacing the three-drug cocktail with a single drug, and an appeals court made a narrow technical ruling that favors the death penalty.”

Voters again could get a say.  One initiative advanced for the November 2016 ballot by actor Mike Farrell would repeal the death penalty.  Given that Prop. 34 lost, 52 percent to 48 percent, it has a chance.  The other proposed initiative is backed by county district attorneys across the state, including Orange County’s Tony Rackauckas.  In Mr. Wisckol’s summary, the measure would streamline “the process for approving a single-drug injection” and the appeals process, and expand “the pool of defense attorneys available to represent death row inmates.”  Under state law, if two similar initiatives pass, the one with the most votes becomes law.

However, California elects a new governor in 2018. Lt. Gov. Gavin Newsom, who already has announced his candidacy, in 2013 came out strongly against the death penalty.  Other Democratic candidates likely will take the same stance.  Republicans now are so weak a statewide electoral force, supporting the death penalty won’t help much.  Which means a death penalty opponent almost certainly will move into the Governor’s Office in 2019.

As a big supporter of direct democracy, I generally favor any and all efforts to put issues before voters. In addition, given the persistent mess that California's capital punishment system has been, I think it would be very valuable to give voters clear choices to either end or to mend the death penalty in the state. For various legal and political reasons, even a landslide vote on death penalty reform likely would not resolve all capital issues in California. But I think it could help bring a lot more capital clarity.

November 23, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Friday, November 20, 2015

"Prison Time Surges for Federal Inmates"

PSPP_PrisonTime_fig1The title of this post is the headline of this notable Issue Brief released this wqeek by the Pew Public Safety Performance Project. Here is how it gets started (with notes omitted):

The average length of time served by federal inmates more than doubled from 1988 to 2012, rising from 17.9 to 37.5 months. Across all six major categories of federal crime — violent, property, drug, public order, weapon, and immigration offenses — imprisonment periods increased significantly. (See Figure 1.)  For drug offenders, who make up roughly half of the federal prison population, time served leapt from less than two years to nearly five.

Mandatory minimum sentencing laws, the elimination of parole, and other policy choices helped drive this growth, which cost taxpayers an estimated $2.7 billion in 2012 alone.  Despite these expenditures, research shows that longer prison terms have had little or no effect as a crime prevention strategy — a finding supported by data showing that policymakers have safely reduced sentences for thousands of federal offenders in recent years.

Two factors determine the size of any prison population: how many offenders are admitted to prison and how long they remain. From 1988 to 2012, the number of annual federal prison admissions almost tripled, increasing from 19,232 to 56,952 (after reaching a high of 61,712 in 2011). During the same period, the average time served by released federal offenders more than doubled, rising from 17.9 to 37.5 months.  These two upward trends ...caused a spike in the overall federal prison population, which jumped 336 percent, from 49,928 inmates in 1988 to an all-time high of 217,815 in 2012.  One study found that the increase in time served by a single category of federal offenders — those convicted of drug-related charges — was the “single greatest contributor to growth in the federal prison population between 1998 and 2010.”

The long-term growth of this population has driven a parallel surge in taxpayer spending.  As Pew reported in February 2015, federal prison spending rose 595 percent from 1980 to 2013, from $970 million to more than $6.7 billion in inflation-adjusted dollars.  Taxpayers spent almost as much on federal prisons in 2013 as they spent in 1980 on the entire U.S. Justice Department — including the Federal Bureau of Investigation, the Drug Enforcement Administration, and all U.S. attorneys.

November 20, 2015 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, November 19, 2015

Capital defense lawyers in Utah seek to depose all county prosecutors to make constitutional case against death penalty

This local story from Utah, headlined "Murder defense to depose all of state's top prosecutors," reports on the latest defense approach to putting a bee in the state's capital punishment bonnet in the Beehive State. Here are the interesting details:

The defense in a 2010 murder case plans to schedule depositions with all of Utah’s 29 county prosecutors and other state law enforcement representatives possibly including Utah Attorney General Sean Reyes as part of its bid to overturn a death penalty ruling in the case. Attorneys Gary Pendleton and Mary Corporan announced their plans on Wednesday to seek testimonies from anyone in the state who decides whether the death penalty should be applied in a criminal case. The issue forms part of their arguments that the death penalty is unconstitutional and applied inequitably.

The pair represent Bloomington Hills resident Brandon Perry Smith, 34, who is accused of killing 20-year-old Jerrica Christensen two weeks before Christmas 2010 in a brutal downtown incident.   Pendleton told 5th District Judge G. Michael Westfall that he and Corporan have investigated how many death penalty-eligible cases since 1992 have actually ended up with a suspect being referred to death row. They determined that the prosecution seeks the death penalty in fewer than 3 percent of eligible cases, with most cases leading to a life in prison sentence instead, Pendleton said.

“Why is the death penalty not being sought in those cases but it is being sought in this case?” he asked. “I think we have to call as witnesses the charging authorities who were in positions of authority to make the charging decisions at the time the (state’s other) cases were filed either as capital cases — aggravated murder cases — or not,” Corporan said....  Pendleton’s question amounts to a challenge about whether anyone should be sentenced to death unless everyone who could legally be sentenced to death receives that ultimate penalty....

The death penalty has since been allowed on a state-by-state basis, and Utah established eight aggravating circumstances to define death penalty cases. “Over the years, we have now come to 22 or 23 aggravators,” Pendleton said, adding that at one time Utah had more than any other state.  “Even though we supposedly have a statute that narrows the class, … (in) only 3 percent of (those cases) is the state seeking the death penalty and they’re not seeking the death penalty based upon any articulable standard,” Pendleton said. “It’s completely arbitrary. … The state can’t articulate and won’t articulate on what basis they are making that selection and deciding that this is a death-worthy case. They’re not doing it based on the statute.”...

Pendleton and Corporan initially asked Westfall to schedule a three-day hearing in Smith’s case that would require the presence of all the affected prosecutors from across the state, but Westfall said he feared such a hearing would create a devastating delay for the case because of the difficulty of coordinating everyone’s schedules as well as problems for the other attorneys’ caseloads. “We’re talking about a real domino effect,” he said.

Shaum suggested deposing each affected prosecutor individually would be more practical, even though Corporan and Westfall conceded that to do so will still likely create significant delays in trial scheduling, especially with the holiday season approaching.  With the attorneys’ agreement, Westfall scheduled a review hearing for Feb. 3 to check the progress of the depositions.

Christensen’s mother, Ellen Hensley, has previously expressed concerns about the length of the court process and held a candlelight vigil at the courthouse on the last anniversary of her daughter’s death to call for swifter justice for the victims of crimes. Westfall expressed apparent awareness of her concerns, reminding the attorneys that “I also think that we need to keep in mind that we’ve got some victims’ family members in this case that I think are also entitled to try to see if we can get this case resolved. … I am still concerned about moving this case along and making sure that we get a decision as soon as possible.”

“I’m concerned about providing adequate representation on all the legal issues,” Pendleton replied, adding that the depositions will be “only the tip of the iceberg” in his motion to have the death penalty declared unconstitutional, but that they will be the only real evidence issue before moving to legal arguments.

November 19, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Lots of interesting marijuana reform developments via Marijuana Law, Policy and Reform

It has been a couple of weeks since I highlighted here nationally and internationally developments in the marijuana reform space, and these recent posts from Marijuana Law, Policy & Reform discusses just some of these developments:

November 19, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Sentencing around the world, Who Sentences? | Permalink | Comments (0)

Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial

As reported in this local AP article, headlined "Fell’s lawyers challenge death penalty law," a notable killer is now making a notable argument to preclude capital punishment's application at his retrial. Here are the details:

A Vermont man facing the federal death penalty for the 2000 killing of a woman abducted from outside a Rutland supermarket is asking a judge to declare the death penalty law unconstitutional, court documents say.  In documents filed in federal court Monday, attorneys for Donald Fell argue the federal death penalty is unreliable, arbitrary and adds “unconscionably long” delays in cases.  “Most places within the United States have abandoned its use under evolving standards of decency,” the attorneys say.

They contend that U.S. Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg earlier this year “issued a clarion call for reconsideration of the constitutionality of the death penalty.”  It also noted that the Connecticut Supreme Court, relying largely on Breyer and Ginsburg’s arguments, found that state’s death penalty unconstitutional. “Mr. Fell asks this Court to (rule)... that the federal death penalty, in and of itself, constitutes a legally prohibited cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” his filing said.

Fell, 35, was convicted and sentenced to death in 2005 for the 2000 killing of Terry King, a 53-year-old North Clarendon grandmother who was abducted in Rutland and later killed.  A judge last year ordered a new trial for Fell because of juror misconduct during the original trial.  The trial is scheduled for next fall.

U.S. Attorney Eric Miller said his office would respond to the defense filings at the appropriate time. Vermont has no state death penalty; Fell was sentenced to death under federal law.  In 2002, the judge then hearing the case declared the federal death penalty unconstitutional.  But two years later, an appeals court overturned that ruling, allowing the trial to go forward.

Robert Dunham, executive director of the Death Penalty Information Center, said a decade’s worth of data has accumulated showing the legal problems with the federal death penalty since the ruling allowing Fell’s case to go forward.... “You can expect going forward that there will be constitutional challenges of this type filed in most, if not all, federal capital prosecutions,” Dunham said.

I share the view that defendants will be making this kind of categorical constitutional argument against the death penalty this will be made in most federal capital prosecutions, and I would go even further to assert that it may now be pretty close to obligatory for defense attorneys to make some form of this argument in any and every capital case. In light of the comments by Justices Breyer and Ginsburg in Glossip, and the risk of having an argument considered waived if not brought as soon as possible, I would think most capital defense attorneys would feel duty-bound to at least raise this kind of argument in order at leas to preserve it for future high court consideration.

November 19, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"States of Women's Incarceration: The Global Context"

The title of this post is the title of this effective new on-line report by the Prison Policy Initiative.  Here is how it gets started:

We already know that when it comes to incarceration, the United States is truly exceptional.  As we have reported previously, the United States incarcerates 716 people for every 100,000 residents, more than any other country. Worldwide, and within the U.S., the vast majority of those incarcerated are men.  As a result, women's incarceration rates are overshadowed and often lost in the data.  As a first step in documenting how women fare in the world's carceral landscape, this report compares the incarceration rates for women of each U.S. state with the equivalent rates for countries around the world.

Across the globe, the 25 jurisdictions with the highest rates of incarcerating women are all American states.  Thailand, at number 26, is the first non-U.S. government to appear on this high-end list, followed closely at number 27 by the Unites States itself.  The next 17 jurisdictions are also American states.

Overall, with the exception of Thailand and the U.S. itself, the top 44 jurisdictions throughout the world with the highest rate of incarcerating women are individual American states.  Nearly 30% of the world's incarcerated women are in the United States, twice the percentage as in China and four times as much as in Russia.

Putting U.S. states in a global context is sobering; even the U.S. states that have comparatively low rates of incarceration far out-incarcerate the majority of the world. Illinois' incarceration rate for women is on par with El Salvador, where abortion is illegal and women are routinely jailed for having miscarriages.  New Hampshire is on par with Russia, and New York with Rwanda.

Rhode Island, which has the lowest incarceration rate for women in the U.S., would have the 15th highest incarceration rate in the world if it were a country.  In other words, only 14 countries (not including the United States) incarcerate women at a higher rate than Rhode Island, the U.S. state that incarcerates women at the lowest rate of imprisonment.

November 19, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, November 18, 2015

House Judiciary Committee advances its Sentencing Reform Act of 2015 for full House consideration

As reported in this article from The Hill, today the "House Judiciary Committee passed a criminal justice reform bill ... that would reduce certain mandatory minimum prison sentences to address overcrowding in the federal prison population."  Here is more on how this came to pass:

In a voice vote, the committee moved Chairman Bob Goodlatte’s (R-Va.) bill — the Sentencing Reform Act of 2015 — to the full House for consideration.

The bill reduces mandatory minimum sentences for a second serious drug offense from 20 to 15 years and reduces mandatory sentences for a third drug trafficking offense or violent felony from life in prison to 25 years.

While the bill allows the reduced sentencing reforms to apply retroactively to offenders already serving time, Goodlatte said it does not do so blindly. “The bill excludes from retroactivity any offender who has a prior conviction for a serious violent felony, for which the offender served 13 months or more in prison,” he said....

The committee did approve an amendment offered by Rep. Jim Sensenbrenner (R-Wis.) to require the Department of Justice and the sentencing commission to update its 2011 mandatory minimum sentencing report. The amendment also expresses that it is the sense of Congress that mental health is a critical component of criminal justice reform. In offering his support for the amendment, which was authored by Sensenbrenner and Reps. Sheila Jackson Lee (D-Texas), Doug Collins (R-Ga.) and Cedric Richmond (D-La.), Conyers said it’s important for Congress to recognize the need to better integrate mental health treatment as part of its reform efforts.

Rep. Ken Buck (R-Colo.) offered an amendment to exempt heroin users from the legislation, but it was thrown out by the committee.

This legislative development gets us one step closer to having significant federal sentencing reform on the desk of Prez Obama before the end of this year. But I am disinclined to get too excited unless and until I hear that a full House vote and a full Senate vote are scheduled.

November 18, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Keeping in mind the research that may suggest crime increases resulting from a different kind of "Ferguson Effect"

As reported in this Washington Post piece, in the course of testifying before Congress yesterday, Attorney General Loretta Lynch indicated there was no data to support the notion that an increase in crime can and should be attributed to police officers pulling back from their duties in the wake of conversies over excessive use of police force.  Here are the details:

Attorney General Loretta Lynch said Tuesday that there is “no data” to support the idea that the police are not aggressively protecting communities since the increased use of videos and the focus on police tactics after the death of Michael Brown, something referred to as “the Ferguson effect.”

In testimony during her first appearance before the House Judiciary Committee since her confirmation, Lynch agreed with President Obama and her predecessor Eric H. Holder Jr. and pushed back against comments made by FBI Director James B. Comey and Chuck Rosenberg, the acting administrator of the Drug Enforcement Administration, both of whom report to her.

“While certainly there might be anecdotal evidence there, as all have noted, there’s no data to support it, and what I have seen in my travels across this country is the dedication, the commitment and the resolve of our brave men and women in law enforcement to improving policing, to embracing the 21st Century Task Force recommendations, and to continuing to have a dialogue that makes our country safer for all,” Lynch said.

In two recent speeches, at the University of Chicago Law School on Oct. 23 and at a speech to the International Association of Chiefs of Police three days later, Comey said that “viral videos” of police activity had sent a “chill wind” through law enforcement and he suggested a link between this year’s spike in crime in some major U.S. cities and the growing protests alleging excessive use of force by police. Rosenberg said he agreed with Comey and that he had “heard the same thing” from law enforcement officials....

Lynch’s comments on the “Ferguson effect” came after Rep. John Conyers Jr. (D-Mich.) alluded to Comey and Rosenberg by saying that “some from within your department” have suggested that dialogue on police and community relations “have somehow reduced the willingness of some police officers to perform their duties.”

“Does our conversations about civil rights and the appropriate use of force by police somehow make us less safe?” Conyers asked Lynch. “Our discussion about civil rights, and the appropriate use of force and all police tactics can only serve to make all of us, community members and police officers, safer,” Lynch replied. “In my discussions with police officers around the country, I have found a positive engagement on these issues.”

In addition to being pleased to hear AG Lynch suggest hard data rather than anecdote should inform discussions about a "Ferguson Effect" impact police activities, the focus on data in this context got me thinking about the important research done by Tom Tyler and Jeffrey Fagan and others about the connections between the perceived legitimacy and fairness of the law and its enforcers and the willingness of persons to comply with the law. This short piece from DOJ's Office of Justice Programs, titled "Procedural Justice: Increasing Trust to Decrease Crime," spotlights and summarizes some of this research:

A wealth of empirical evidence shows that when police are at their best — when they are neutral and unbiased; treat those with whom they interact with respect and dignity; and give folks a chance to explain their side of the story — they can actually bring out the qualities they want to see in their communities. People who are policed in this way are more likely to view the police as legitimate. And people who view the police as legitimate are more likely to obey the law, cooperate with authorities and engage positively in their communities.... [N]umerous empirical studies persuasively demonstrate that perceptions of legitimacy have a greater impact on people’s compliance with the law than their fear of formal sanctions.

The bad news is, if people experience an interaction with a police officer that suggests to them the police are untrustworthy, their ties with law and their sense of its legitimacy weaken, which may lead to a lack of cooperation with the police and more law breaking in the future. Put another way, unnecessarily aggressive policing brings out the worst in the people toward whom it is directed.

The factors that contribute most to people viewing a police stop as negative are whether the police threaten or use force arbitrarily, inconsistently or in ways that suggest a lack of professionalism or the existence of prejudice, or if police are humiliating or disrespectful. Notably, whether the stop results in an arrest is less important for purposes of perceived legitimacy than how that stop is carried out....

And it’s not just the stops of particular individuals that matter. People also develop their sense of police legitimacy from what they hear and see from their neighbors, family members and friends. Picking out some individuals and treating them fairly won’t be sufficient, if those same people witness and hear about unfairness directed toward others in their community. Every interaction the police have communicates information about the legal system. Moreover, this message resonates beyond the person who is dealing with the police, because others in the neighborhood hear about it, as do that person’s friends and family.

Notably, right around the time of all the unrest in Feguson, Tom Tyler authored this Huffington Post piece discussing his research which ends this way (with link from source and my emphsasis added):

Jeffrey Fagan and I recently studied young men in New York City and found that those who mistrusted the police were twice as likely to be engaged in criminal activity. Second they increase hostility and lead to a greater likelihood of conflict when the police deal with community members on the street and when the community reacts to police actions such as the Brown shooting. Such anger produces precisely the type of unrest so visible in Ferguson. As so many of the marchers in that community have suggested, if people do not experience justice when they deal with the police, there will be no peace.

This research has me thinking and fearing that the increase in crime being experienced in many American cities in 2015 may be a result not of decreased police activity as a result of Feguson, but of increased mistrust of police among those already likely to have deep concerns about the legitimacy of our criminal laws.

November 18, 2015 in National and State Crime Data, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Local Arkansas judge accused of soliciting sex from defendants to reduce sanctions

As reported in this local article, headlined "Panel accuses judge of lenient rulings for sexual favors, other violations," a local judge in Arkansas is accused of reaching some new lows in judicial misconduct. Here are just some of the sorted details:

A Cross County district judge was accused by a state disciplinary panel Tuesday of multiple violations of the judicial code involving a wide range of offenses, including lenient rulings for sexual favors from younger male offenders, possessing child pornography and verbal abuse of people in his courtroom.

The Judicial Discipline and Disability Commission announced that it filed formal charges against District Judge Joseph Boeckmann Jr. of Wynne, whom it alleged violated 14 judicial ethics rules, including abuse of office and breaking state law.

The commission's director, David Sachar, said Boeckmann has 30 days to respond to the allegations, which were the result of a 14-month investigation.  The case could then go to a public trial before the nine-member commission. Boeckmann did not return calls placed to his office.  The judge's attorney, Jeff Rosenzweig, offered this statement: "We are going to file a response denying the allegations, and we'll be fighting the charges in front of the commission."

Depending on its findings, the commission can issue letters of discipline, ranging from caution to reprimand.  The panel also can ask the Arkansas Supreme Court to suspend or remove Boeckmann from the bench. Sachar said the commission also handed over information to a state prosecutor, but he declined to identify the prosecutor.

Boeckmann was first elected to the part-time judicial position in 2008 and took the bench in 2009.  He is not seeking re-election.  The investigation began with the Department of Human Services' Adult Protective Services Division, after an investigator fielded a complaint against a woman working for Wynne Elder Care LLC.

Eventually, the DHS investigation led the judicial commission to conduct its own investigation, in which it found unidentified witnesses who claimed to have seen pornography on the judge's computer that involved "prepubescent males," according to the complaint....

Boeckmann is accused of "awarding community service to certain litigants based on gender," the complaint said, in which the judge offered "substitutionary sentences" to young men.  Those sentences often involved picking up cans on the side of the road or at the judge's Wynne residence, Tuesday's complaint said.

"Boeckmann would photograph the buttocks of the men as they were bending to retrieve the garbage," the complaint stated.  "Multiple male litigants have been photographed. ... Boeckmann maintained these photographs of male litigants' buttocks in his home for his personal use," the complaint said.

The complaint stated that Boeckmann's "method of operation" was to seek out young white men, mostly between the ages of 18 and 35, who had criminal or traffic citations in his court. During meet-ups for "trash pickup," Boeckmann is accused of soliciting "sexual relations" from the men in exchange for reductions in court costs and fees, according to the commission's investigation.

On Tuesday, Sachar said he was unable to say how many men were involved or how many court fees were waived as a result, but he said his staff had pored over thousands of pages of court and financial documents.  

One witness, identified only as "A.A.," was in jail for several days in 2001 when his girlfriend approached Boeckmann, then an attorney, for help, and Boeckmann asked if "A.A. was good looking," the complaint stated.  Through 2011, A.A. worked for Boeckmann and was involved in a sexual relationship with him, the complaint said, and even had a room at Boeckmann's home. In that time, Boeckmann bought A.A. two vehicles and a boat, the complaint said. He also paid rent and utilities for A.A.'s family, and engaged in "spankings" with A.A. whenever A.A. got into trouble, the complaint stated.

I sincerely hope, if these disgraceful allegations are true, that this judge will be facing some serious criminal charges.

November 18, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Is it appropriate for condemned's lawyers to give up capital fight at 11th hour?

The question in the title of this post is prompted by this extended Dallas Morning News article headlined "Condemned man’s lawyers stop helping, cite ‘false hope’." Here is the start and end of the story involving a murderer scheduled to be executed today in Texas:

From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.

Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.

Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying. But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.

Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.

Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say. The two contend they are exercising professional judgment and doing what’s best for their client.

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

But others say the law under which death row lawyers are appointed doesn’t allow that kind of discretion. It requires attorneys to make every possible effort to save a client’s life, if that’s what the inmate wants. “This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”

So far, appeals courts have sided with Volberding and Kretzer. Last Thursday, the 5th U.S. Circuit Court of Appeals denied a motion to have them replaced. On Monday, Sween appealed to the Supreme Court.

Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.... In decades of practicing, Bright said he had never seen a case like Holiday’s in which appointed lawyers so vociferously fought to keep a death row inmate from retaining a different attorney. In some cases, he said, new lawyers have discovered evidence others overlooked pointing to an inmate’s innocence or showing people’s intellectual disabilities made them incompetent for execution. “Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”

November 18, 2015 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, November 17, 2015

Terrific original reporting by The Crime Report on challenging extreme policing bordering on entrapment

Regular readers know I am a big fan of all the criminal justice reporting work done at The Crime Report (TCR), and a new two-part series authored by Adam Wisnieski at TCR showcases why.  In these two extended pieces, TCR highlights the extraordinary examples of extreme stings and the limited willingness of courts to police the work of police and prosecutors in this arena:

Here is an excerpt from the first of these two important pieces:

A TCR investigation found 126 motions to dismiss a case on the grounds of “outrageous government conduct” filed during an 18-month period between 2014 and August 2015. In those 126 cases, only seven were initially successful.  Three of those were overturned on appeal, and an appeal on the fourth is still pending — though it is expected to be denied.

In the rare occurrences where a claim of “outrageous government conduct” is successful, something profound happens: police behavior changes. In one instance this year, the motion’s success directly led to a law enforcement agency changing policy on undercover sting operations involving prostitution. (More on this below.)

Nevertheless, the motion’s lack of success raises troubling questions for the future of American law enforcement.  Legal scholars and critical judges say the near-overwhelming failure of courts to rule aggressive police behavior is “outrageous” when such motions arise has created a climate in which such behavior is likely to increase — while eroding the power of the judicial branch to check the government when it overreaches and, by implication, threatening Americans’ constitutionally enshrined right to due process.

November 17, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)