Tuesday, August 05, 2014

Judge denies Florida sex offender's request to be physically castrated

As reported in this local article, a judge in Florida has felt compelled to reject a sex offender's notable request for a notable alternative punishment.  Here are the details: 

Lester Leroy Williams is serving ten years in prison for sexually battering a child. Back in 2008, he was also sentenced to 4.5 years of probation. Recently, the 35-year-old Williams made a bizarre request: He wants the state to physically castrate him.

In a letter Williams wrote at the Union Correctional Institution in Raiford, he asked Fifth Judicial Circuit Court Judge Hale Stancil to modify his sentence to include castration at the expense of the state. But Stancil denied the unusual request this past Tuesday, stating his court didn't have jurisdiction to rule over the case.

"In 32 years, I have never had this request before," said Stancil, who spoke about the case for the first time to New Times. "I know there is chemical castration, but I've never had an inmate ask to be physically castrated before. I don't think I have authority as a judge to order such a thing."...

Florida already allows certain sex offenders to receive medroxyprogesterone acetate (MPA) treatment as part of their rehabilitation. MPA, an artificial hormone, is normally used to treat symptoms of menopause in women, but when used by men, it decreases testosterone to pre-puberty levels.  MPA has been used on sex offenders for years as a way of reducing the chances of recidivism by diminishing the sexual urges of men who have long histories of committing sex crimes.

According to Florida law, courts must sentence repeat offenders of sexual battery to MPA treatment but may choose to administer it to first-time offenders. The treatment does not replace or reduce any other penalty the court could impose, and the courts can order the treatment to last up to life....

The law stipulates though that instead of undergoing the chemical form of castration, sex offenders may -- of their own volition -- ask a court for physical castration, which is what Williams has done. Though the legal leeway seems to exist, it is rarely chosen -- Williams may be the first in Florida to request it even though he isn't even required to have MPA treatment.

"Sex offenders are wretched," said Maryam Sweirki, 25, a Miami advocate for victims of sexual assault. "If he can't handle his penis, then I'm for his decision to take his weapon away."

However, critics of castration believe it to be a cruel and unusual punishment that violates human and reproductive rights; with other critics arguing the law that allows for MPA castration, though it applies to both genders, is unequal in punishment because it has a greater impact on males.  Some of the side-effects related to the drug (besides decreased sexual urges) are: a loss of body hair, hot and cold flashes, impotence, depression, thrombosis, and weight gain.

Though it has been shown to decrease the number of reoffenders, some opponents further argue that castration isn't a panacea for all sex offenders because some of them are motivated to sexually abuse because of intense feelings of hatred and hostility, rather than sexual desire.

Some related older posts:

August 5, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, August 04, 2014

Sixth Circuit reverses federal forced labor conviction based on ordering kids to do household chores

The Sixth Circuit this morning handed down a fascinating ruling in a case which reinforces my fear that that modern federal prosecutors may often have too much discretionary criminal justice power as well as my optimism that a wise modern judiciary can and will often play a critical role in checking that power.  The unanimous panel opinion in US v. Toviave, No. 13-1441 (6th Cir. Aug. 4, 2014) (available here), starts and ends this way:

Child abuse is a state crime, but not a federal crime. Forced labor is a federal crime, 18 U.S.C. § 1589, but the statute obviously does not extend to requiring one’s children to do their homework, babysit on occasion, and do household chores. Only by bootstrapping can this combination of two actions that are not federal crimes — child abuse and requiring children to do household chores — be read as a federal crime.

Defendant Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry.  He also occasionally made the children babysit for his girlfriend and relatives.  Toviave would beat the children if they misbehaved or failed to follow one of Toviave’s many rules.  While his actions were deplorable, Toviave did not subject the children to forced labor.  The mere fact that Toviave made the children complete chores does not convert Toviave’s conduct — what essentially amounts to child abuse — into a federal crime.  Toviave’s federal forced labor conviction must accordingly be reversed....

[V]ictims in the other [discussed forced labor] cases were denied almost all contact with the outside world.  The evidence in this case shows that the children attended school, spent time with relatives and Toviave’s friends, engaged in recreational activities, and went on vacations with Toviave.  The children also interacted with teachers, classmates, and teammates on sports teams.  Viewing the evidence favorably to the government, it is true that the children probably did not have the same freedom as many other children.  For example, Toviave did not let the children have friends over, go to sleep-overs, or freely use the phone.  But their isolation was not nearly as severe as the victims in other forced labor cases.  Finally, we have found no other cases where the government convicted a victim’s relative of forced labor.  This absence is likely explained by the difficulty of drawing a line between what amounts to forced labor and what are widely accepted childrearing practices in the context of a familial relationship where the labor at issue consists entirely of household chores.

The line between required chores and forced labor may be a fine one in some circumstances, but that cannot mean that all household chores are forced labor, with only the discretion of prosecutors protecting thoughtful parents from federal prosecution.  The facts of this case fall on the chores side of the line.

Because the Government did not present sufficient evidence of forced labor, we need not reach the other issues in this case.  Toviave’s convictions for forced labor are REVERSED.

August 4, 2014 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Will any Justices express any concerns about drug secrecy after third ugly execution?

ImagesThe question in the title of this post is prompted by this new AP article headlined "Justices silent over execution drug secrecy." Here are excerpts:

No one on the Supreme Court objected publicly when the justices voted to let Arizona proceed with the execution of Joseph Wood, who unsuccessfully sought information about the drugs that would be used to kill him.

Inmates in Florida and Missouri went to their deaths by lethal injection in the preceding weeks after the high court refused to block their executions. Again, no justice said the executions should be stopped.

Even as the number of executions annually has dropped by more than half over the past 15 years and the court has barred states from killing juveniles and the mentally disabled, no justice has emerged as a principled opponent of the death penalty.

This court differs from some of its predecessors. Justices William Brennan and Thurgood Marshall dissented every time their colleagues ruled against death row inmates, and Justices Harry Blackmun and John Paul Stevens, near the end of their long careers, came to view capital punishment as unconstitutional. "They're all voting to kill them, every so often. They do it in a very workmanlike, technocratic fashion," Stephen Bright, a veteran death penalty lawyer in Georgia, said of the current court.

Wood's execution on July 23 was the 26th in the United States this year and the third in which prisoners took much longer than usual to die. Wood, convicted of killing his estranged girlfriend and her father, was pronounced dead nearly two hours after his execution began, and an Associated Press reporter was among witnesses who said Wood appeared to gasp repeatedly, hundreds of times in all, before he died.

Justice Ruth Bader Ginsburg said she and her colleagues are aware of what happened in Arizona, though she declined to say how the court would rule on a plea to stop the next scheduled execution -- of Michael Worthington on Wednesday in Missouri. "Your crystal ball is as good as mine," she said last week in an interview with The Associated Press.

The court's rejection of Wood's claim that he was entitled to learn more about Arizona's procedures and the source of the execution drugs came at the end of protracted legal wrangling. A federal judge in Arizona initially denied Wood's claim. The federal appeals court in San Francisco then granted a reprieve. But the justices reversed that ruling in a brief order. The court said the judge who initially ruled against Wood "did not abuse his discretion."...

The substance of capital punishment issues usually finds its way in front of the justices when there is no time pressure. In January, the court heard arguments in a case over a Florida law that used a rigid threshold in intelligence test scores in cases of borderline mental disability. In late May, a five-justice majority led by Anthony Kennedy struck down the law because it "contravenes our nation's commitment to dignity."

The soaring language that Kennedy often favors in his opinions has led some death penalty experts to believe that he eventually will provide the fifth vote, along with those of the court's four liberal justices, to end or severely restrict the use of the death penalty. "It is impossible to reconcile that language with the secrecy surrounding lethal injections," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. "My assumption is quite a lot is happening behind the scenes."

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. "When a stay is denied, it doesn't mean we are in fact unanimous," she said.

Still, Ifill said the court's unwillingness so far to deal with states' reluctance to reveal much about the provenance of lethal injection drugs is troubling. "I'm disappointed after all the revelations that at least some justices weren't prepared to say something pretty strong," she said.

The old saying, "Third time's a charm," has me inclined to predict that we may end up hearing from at least one Justice or two concerning execution drug secrecy the next time this issue is effectively raised before the Supreme Court. Whether that occurs this week on later this year, I suspect this issue will have some legs if states continue to have to experiment with new execution drug protocols and continue to preclude capital defendants from knowing all the experimental details.

A few recent related posts:

August 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, August 03, 2014

Significant AG Holder comments asserting severe rigid sentences are not needed to induce cooperation

Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting made headlines mostly due to his expression of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here).  I will discuss AG Holder's nuanced comments on this front in some future posts.  

Before discussing the use of risk assessment instruments in initial sentencing determinations, I first want to recommend that everyone read all of AG Holder's NACDL speech, which is available here, because it includes a number of notable passages addressing a number of notable sentencing topics.  Of particular note, these paragraphs seek to debunk the oft-heard statements that reform of mandatory minimum sentencing provisions could prevent prosecutors from securing needed cooperation from defendants:

[T]he Smart on Crime initiative has led us to revise the Justice Department’s charging policies with regard to mandatory minimum sentences for certain federal, drug-related crimes — so that sentences will be determined based on the facts, the law, and the conduct at issue in each individual case.  This means that the toughest penalties will now be reserved for the most serious criminals.  Over the last few months — with the Department’s urging — the U.S. Sentencing Commission has taken additional steps to codify this approach, amending federal sentencing guidelines for low-level drug trafficking crimes to reduce the average sentence by nearly 18 percent.  Going forward, these new guidelines will impact almost 70 percent of people who are convicted of these offenses. And last month, the Commission voted to allow judges to apply these revised guidelines retroactively in cases where reductions are warranted.

Now, some have suggested that these modest changes might somehow undermine the ability of law enforcement and prosecutors to induce cooperation from defendants in federal drug cases.  But the reality is that nothing could be further from the truth.

Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I know from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence.  As veteran prosecutors and defense attorneys surely recall — and as our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, has often reminded his colleagues — sentencing guidelines essentially systematized the kinds of negotiations that routinely took place in cases where defendants cooperated with the government in exchange for reduced sentences.  With or without the threat of a mandatory minimum, it remains in the interest of these defendants to cooperate.  It remains in the mutual interest of defense attorneys and prosecutors to engage in these discussions. And any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.

Far from impeding the work of federal prosecutors, these sentencing reforms that I have mandated represent the ultimate expression of confidence in their judgment and discretion.  That’s why I’ve called on Congress to expand upon and further institutionalize the changes we’ve put in place — so we can better promote public safety, deterrence, and rehabilitation while saving billions of dollars and reducing our overreliance on incarceration.

August 3, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Round-up some more potent posts from Marijuana Law, Policy and Reform

Not surprisingly, the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here) has generated lots of buzz.  And, as demonstrated by this round-up of recent posts at Marijuana Law, Policy and Reform, lots of folks are talking about lots of issues in addition to the points being raised by the NYTimes:

August 3, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, August 02, 2014

"Swift, Certain, and Fair Punishment — 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders"

The title of this post is the title of this notable new article by Paul Larkin of The Heritage Foundation available via SSRN.  Here is the abstract:

Local and state government officials in South Dakota and Hawaii have implemented a creative way to address some of the problems stemming from alcohol and drug use. The South Dakota 24/7 Sobriety program and Hawaii’s Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices.  Criminologists, both old and contemporary, have believed that the certainty and celerity of punishment are more effective components of deterrence than is the severity of a penalty.  In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate punishment is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road.

South Dakota and Hawaii have developed innovative programs to deal with substance use and noncompliance with the conditions of supervision.  Both programs address this problem. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce.  Hawaii has independently developed and followed a similar approach to the use of drugs and crime, subjecting certain offenders to rigorous, random drug urinalysis punished by the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims and society.

August 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, August 01, 2014

Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform

I have previously questioned the assertion that significant federal sentencing reform is inevitable, and the failure of the current Congress to make serious progress on the Smarter Sentencing Act or other notable pending federal sentencing reform proposals has reinforced my generally pessimistic perspective.  But this effective new article from the Washington Examiner, headlined "2016 contenders are lining up behind sentencing reform --- except this one Tea Partier," provides further reason to be optimistic that federal sentencing reform momentum will continue to pick up steam in the months ahead.  Here are highlights:

Sen. Marco Rubio hasn’t hammered out a firm position on mandatory minimum sentencing laws yet.  A year ago, that would have been perfectly normal for a Republican senator and rumored presidential contender.  But over the last months, most of the potential Republican nominees have voiced support for policy changes that historically might have gotten them the toxic “soft on crime” label.  These days, though, backing prison reform lets Republicans simultaneously resurrect compassionate conservatism and reach out to voters who wouldn’t typically find much to love from the GOP.

Rep. Paul Ryan is one of the latest potential presidential candidates to tout mandatory minimum sentencing reform as part of a conservative strategy to reduce poverty.... [H]e has debuted a new anti-poverty agenda that includes support for the Smarter Sentencing Act, a bill with a Senate version co-sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Tea Party favorite Sen. Mike Lee, R-Utah, and a House version from Rep. Bobby Scott, D-Va., and Raul Labrador, R-Idaho.  That bill would shorten some of the mandatory minimum sentence lengths and also would expand the “safety valve” that keeps some non-violent drug offenders from facing mandatory sentences.

“It would give judges more discretion with low-risk, non-violent offenders,” Ryan said in a speech at conservative think tank American Enterprise Institute.  “All we’re saying is, they don’t have to give the maximum sentence every time.  There’s no reason to lock someone up any longer than necessary.”

Ryan is the latest in a string of potential presidential contenders to get on board with prison reform.  But it’s likely the state of criminal justice reform would look different without Texas Gov. Rick Perry. In 2007, the Texas legislature adopted a budget designed to reduce the number of people incarcerated and spend more money on treatment. Since then, the state has closed three adult and six juvenile prisons, crime rates have reached levels as low as in the 1960s, and recidivism rates have dipped.

Perry has used his national platform to tout this reform — at a Conservative Political Action Conference (panel with Americans for Tax Reform President Grover Norquist, for instance, he said real conservatives should look to shut down prisons and save money — and other states have adopted reforms following the Lone Star State model.

Sen. Rand Paul, another 2016 favorite, has been one of prison reform’s most vocal boosters.  In an April 2013 speech at Howard University — a speech that got mixed reviews — he drew plaudits for criticizing mandatory minimum sentencing laws.  “Our federal mandatory minimum sentences are simply heavy-handed and arbitrary,” he said, per CNS News. “They can affect anyone at any time, though they disproportionately affect those without the means to fight them. We should stand and loudly proclaim enough’s enough.”

That speech took prison reform one step closer to becoming a national conservative issue, rather than just the purview of state-level think tank wonks and back-room chats among social conservative leaders.

And, of course, New Jersey Gov. Chris Christie addressed the issue in his second inaugural, connecting support for prison reform to his pro-life convictions.

None of this support means that legislation like the Smarter Sentencing Act has good odds in this Congress.  Brian Phillips, a spokesman for Lee, said that since House Majority Leader Eric Cantor’s astounding primary loss, House Republicans have become more gun-shy about any sort of politically complicated reform measures.  And GovTrack.us gives that bill a 39 percent chance of being enacted.

But that doesn’t mean conservative appetite for prison reform will abate.  Molly Gill, government affairs counsel for Families Against Mandatory Minimums, said interest in the issue is growing. “ It can’t go away,” she said. “If Congress doesn’t fix it now, it’s still going to be a problem next year. It’s going to be a problem at the Department [of Justice], it’s going to be a problem in appropriations committees, it’s going to be a problem for the Commerce, Justice and Finance subcommittees when they’re doing appropriations bills — because there is no more money coming, and we’re just going to keep stuffing people into overcrowded prisons.”...

For now, most of the Senate Republicans publicly eyeing 2016 bids have co-sponsored Lee and Durbin’s Smarter Sentencing Act — except Rubio, who said his office is examining it. “I haven’t looked at the details of it yet and taken a formal position,” he said. “We study those things carefully.”

Some recent and older related posts:

August 1, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, July 31, 2014

More potent reviews of criminal justice data via the Washington Post's Wonkblog

WonkIn this post last week, titled " "There’s little evidence that fewer prisoners means more crime," I made much of some recent postings on the Washington Post Wonkblog and suggested that sentencing fans ought to make a habit of checking out Wonkblog regularly.  This set of new posts at that blog reinforce my views and recommendation:

Though all these posts merit a close read, I especially recommend the first one linked above, as it meticulously details all significant problems with all the "science" claims made by the federal government to justify marijuana prohibition. Here is how that piece it gets started:

The New York Times editorial board is making news with a week-long series advocating for the full legalization of marijuana in the United States. In response, the White House's Office of National Drug Control Policy (ONDCP) published a blog post Monday purporting to lay out the federal government's case against marijuana reform.

That case, as it turns out, it surprisingly weak. It's built on half-truths and radically decontextualized facts, curated from social science research that is otherwise quite solid. I've gone through the ONDCP's arguments, and the research behind them, below.

The irony here is that with the coming wave of deregulation and legalization, we really do need a sane national discussion of the costs and benefits of widespread marijuana use. But the ONDCP's ideological insistence on prohibition prevents them from taking part in that conversation.

July 31, 2014 in Data on sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

"Attorney General Eric Holder to Oppose Data-Driven Sentencing"

The title of this post is the headline of this important new article from Time detailing that the Attorney General is formally coming out against some of the data-driven, risk-based sentencing reforms based on concerns about the potential impact on equal justice.  Here are highlights from this article (with more to follow in coming posts):

Citing concerns about equal justice in sentencing, Attorney General Eric Holder has decided to oppose certain statistical tools used in determining jail time, putting the Obama Administration at odds with a popular and increasingly effective method for managing prison populations.  Holder laid out his position in an interview with TIME on Tuesday and will call for a review of the issue in his annual report to the U.S. Sentencing Commission Thursday, Justice department officials familiar with the report say.

Over the past 10 years, states have increasingly used large databases of information about criminals to identify dozens of risk factors associated with those who continue to commit crimes, like prior convictions, hostility to law enforcement and substance abuse. Those factors are then weighted and used to rank criminals as being a high, medium or low risk to offend again.  Judges, corrections officials and parole officers in turn use those rankings to help determine how long a convict should spend in jail.

Holder says if such rankings are used broadly, they could have a disparate and adverse impact on the poor, on socially disadvantaged offenders, and on minorities.  “I’m really concerned that this could lead us back to a place we don’t want to go,” Holder said on Tuesday.

Virtually every state has used such risk assessments to varying degrees over the past decade, and many have made them mandatory for sentencing and corrections as a way to reduce soaring prison populations, cut recidivism and save money.  But the federal government has yet to require them for the more than 200,000 inmates in its prisons. Bipartisan legislation requiring risk assessments is moving through Congress and appears likely to reach the President’s desk for signature later this year.

Using background information like educational levels and employment history in the sentencing phase of a trial, Holder told TIME, will benefit “those on the white collar side who may have advanced degrees and who may have done greater societal harm — if you pull back a little bit — than somebody who has not completed a master’s degree, doesn’t have a law degree, is not a doctor.”

Holder says using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders.  Holder supports assessments that are based on behavioral risk factors that inmates can amend, like drug addiction or negative attitudes about the law.  And he supports in-prison programs — or back-end assessments — as long as all convicts, including high-risk ones, get the chance to reduce their prison time.

But supporters of the broad use of data in criminal-justice reform — and there are many — say Holder’s approach won’t work.  “If you wait until the back end, it becomes exponentially harder to solve the problem,” says former New Jersey attorney general Anne Milgram, who is now at the nonprofit Laura and John Arnold Foundation, where she is building risk-assessment tools for law enforcement.  For example, prior convictions and the age of first arrest are among the most power­ful risk factors for reoffending and should be used to help accurately determine appropriate prison time, experts say.

And data-driven risk assessments are just part of the overall process of determining the lengths of time convicts spend in prison, supporters argue.  Professor Edward Latessa, who consulted for Congress on the pending federal legislation and has produced broad studies showing the effectiveness of risk assessment in corrections, says concerns about disparity are overblown.  “Bernie Madoff may score low risk, but we’re never letting him out,” Latessa says.

Another reason Holder may have a hard time persuading states of his concerns is that data-driven corrections have been good for the bottom line.  Arkansas’s 2011 Public Safety Improvement Act, which requires risk assessments in corrections, is projected to help save the state $875 million through 2020, while similar reforms in Kentucky are projected to save it $422 million over 10 years, according to the Pew Center on the States. Rhode Island has seen its prison population drop 19% in the past five years, thanks in part to risk-assessment programs, according to the state’s director of corrections, A.T. Wall....

Holder says he wants to ensure the bills that are moving through Congress account for potential social, economic and racial disparities in sentencing.  “Our hope would be to work with any of the Senators or Congressmen who are involved and who have introduced bills here so that we get to a place we ought to be,” Holder said.

July 31, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, July 30, 2014

After another ugly execution, will Missouri and Texas have any difficulties keep up monthly execution plans?

Recent troubled executions in Ohio, then Oklahoma, and most recently Arizona have seemingly contributed at least somewhat to a slowed pace of executions nationwide throughout 2014.  Nevertheless, Missouri and Texas have, so far, successfully completed scheduled executions on a pace of nearly one per month throughout out 2014.  In addition, as this DPIC list of scheduled executions spotlights, the next five serious executions dates over the next few months are in Missouri and Texas (with 2 and 3 slated executions, respectively, scheduled in the next seven weeks).

While I am sure national advocacy organizations will continue to make calls for abolition of the death penalty due to the trio of recent ugly executions in other states, I am not sure if this advocacy makes one whit of impact on key capital decision-makers in Missouri and Texas.  Time will tell if the abolistionist advocacy is really aided by all the ugly executionsin 2014, and the places for everyone to be watching most closely in the short term are the Show Me and Lone Star states. 

July 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Indiana reforms highlight how sentencing laws impact cops as well as courts

This interesting local article from Indiana, headlined "Meth Suppression Unit Encounters Positive, Negative Aspects to Massive Sentencing Overhaul," spotlights some of the ways sentencing reform impacts law enforcement operations and priorities. Here are excerpts:

Indiana's criminal sentencing reform took effect nearly a month ago and police detectives and prosecutors are still trying to take it all in. The overhaul brought sweeping changes for law enforcement officers, especially the Evansville Police Department's Meth Suppression Unit.

During the 2013 session, the General Assembly passed House Enrolled Act 1006 which re-wrote the felony portion of the state's criminal code. The new law expands upon the state's four levels of felonies (Class A-D) and creates six levels of felonies (Level 1-6). The reform was intended to ease prison crowding and give judges more discretion to let low-level offenders serve their time in community correctional programs.

For example, what was once a Class A felony became a Level 1 or Level 2 felony, depending on severity. As part of the reform, offenders would have to serve 75% of their sentences instead of the current 50%. While the reform strengthens the sentences for sex crimes and violent crimes, it lessens the sentences for drug crimes. While it has some positive and negative aspects, the jury is still out on the reform, said Evansville Police Detective Patrick McDonald.

"For me, I've been on the street now for 10 years," Det. McDonald said. "There hasn't been a major overhaul of the criminal code like this. Under the old system, manufacturing [meth] was manufacturing [meth]. It was never able to be enhanced by weight so now we have to look at how we process meth labs and try to get a weight out of that."...

The criminal sentencing overhaul eliminated some enhancement charges the Meth Suppression Unit frequently used, McDonald said. McDonald detailed one such example in which a man previously convicted of meth was allegedly caught trying to buy pseudoephedrine, the key ingredient in meth production. Because that man had already been convicted of a meth-related offense, prosecutors added the enhancement charge which bumped up his sentence by eight years.

Some other enhancement charges have been clarified and more clearly defined, McDonald said. He cited the enhancement charge of dealing drugs within 1000 feet of a park or school. Under the new sentencing guidelines, detectives no longer have to prove children were present; the enhancement charge is applicable when it can be 'reasonably expected' that children are present.

The reform also brought drastic changes to what level felony shall apply to how much narcotics detectives discovered. "What used to be dealing over three grams [the General Assembly] raised that up to be 28 grams," McDonald said. "Three grams is a fairly significant amount, about $300 to $350 worth of meth or cocaine. What we historically considered a 'dealer weight' has been pushed down to minimal prison time."

July 30, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, July 29, 2014

"Right on Crime: A Return to First Principles for American Conservatives"

The title of this post is the title of this new article by Marc Levin and Vikrant Reddy which I recently discovered via the Right on Crime blog. Here is an excerpt from the tail-end of the article's introduction:

The idea that conservatives are ideologically committed to mass incarceration is — and always was — a caricature.  American incarceration rates increased significantly in recent decades, and many on the right supported this increase, but conservative support for increased incarceration was linked to unique historical circumstances, not to any philosophical commitment.  Moreover, while conservatives were correct in the early 1970s that some increase in incarceration was necessary to ensure that violent and dangerous offenders served significant prison terms, the sixfold increase in incarceration from the early 1970s to the mid-2000s reached many nonviolent, low-risk offenders.  Now, as crime rates are declining, conservatives are increasingly focused on developing policies that prioritize using limited prison space to house violent offenders while looking for alternative sanctions to hold nonviolent offenders accountable, restore victims, and protect public safety.  In generating and advocating these policies, conservatives are returning to first principles: skepticism of state power, insistence on government accountability, and concern for how public policy affects social norms.

In this article, we discuss the conservative return to first principles in criminal justice.  In Part II, we explain the modern problem of mass incarceration.  Then, in Part III, we note the historical reasons behind the push to increase incarceration in the 1980s and 1990s.  In Part IV, we detail legislative reforms to remedy the incarceration problem that are consistent with conservative ideological principles.

July 29, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Alabama struggling (and facing lawsuits) as sentencing toughness produces overcrowded prisons

As reported in this new local article, headlined "Governor Bentley to feds, prison reform advocates: 'You all are crazy to sue us'," elected officials in Alabama are struggling to figure out how best to deal with too many prisoners and prison problems. Here are the details:

Gov. Robert Bentley acknowledged the immense problems facing the state's prison system but said Monday that his administration needs time to address them, not lawsuits. Speaking at the annual convention at the Alabama Sheriffs' Association, Bentley said his message is the same whether his audience is the U.S. Justice Department or advocacy groups like the Southern Poverty Law Center.

"You all are crazy to sue us," he said. "What good does it do to sue us?"

Bentley said he is as interested as anyone in solving problems that include overcrowding and allegations of mistreatment of inmates. He said he wants to work with anyone who has ideas about how to improve the system but added that lawsuits only divert time and money away from those solutions.

The Montgomery-based Southern Poverty Law Center has, in fact, sued the state over its prisons. The organization alleged last month that the state has failed to meet its constitutional responsibilities to provide adequate health care to prisoners. Maria Morris, an attorney for the Southern Poverty Law Center, said her organization had no choice but to sue to force improvement to years-old problems.

The Justice Department so far has not sued. But a scathing report in January detailing alleged abuses at the Tutwiler Prison for Women in Wetumpka has raised fears among the state's elected leaders that federal authorities are preparing to do so.

Bentley said the state cannot solve its prison problem without taking further steps to reduce long sentences, although he offered no specific proposals. "It is a real problem in this state. Not only is it a problem, but our sentencing of our prisoners is a real problem," he said.

The Legislature already has taken action in recent years on that front. Sentencing guidelines designed to reduce penalties for certain nonviolent and drug crimes have been "presumptive" since October, meaning that judges must cite specific reasons if they depart from the recommendations.

As far as addition action, Bentley said the state is waiting recommendations from the Justice Reinvestment Initiative, a program coordinated by the National Council of State Governments Justice Center. He acknowledged the political difficulty of taking on the prison issue.

"I can't run for governor talking about prison reform. People say, 'I don't care about that,'" he said. "But they do care if you have to raise taxes to build more prisons. They do care if you let violent prisoners out."

Bentley suggested changes in the state's Habitual Felony Offender Act, which was designed to crack down on repeat criminals but has helped spark a massive increase in the state's prison population since its passage in 1977. "The habitual offender act probably has increased our prison population more than anything else," he said.

Bentley said he opposes leniency for violent criminals and sex offenders – "I don't think we ought to let them out" – but said some nonviolent offenders serving longer prison terms because of the law probably can be rehabilitated faster. "If we don't do that, we're going to have to find money to build more prisons," he said.

July 29, 2014 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, July 28, 2014

US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice

VACATEweb-master675Regular readers are likely familiar with the remarkable series of opinions issued by US District Judge John Gleeson in which he has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. But, as reported in this New York Times piece, headlined "Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose," Judge Gleeson's latest opinion discusses how federal prosecutors ultimately aided his efforts to undo an extreme mandatory minimum sentence. Here are the basics:

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”...

Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.

For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.

None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.)...

At a hearing on the Holloway case this month, an assistant United States attorney, Sam Nitze, said that “this is both a unique case and a unique defendant,” citing his “extraordinary” disciplinary record and his work in prison. Also, he said, three of Mr. Holloway’s carjacking victims have said that the 20 years that Mr. Holloway had served in prison was “an awfully long time, and people deserve another chance.” Mr. Nitze agreed to vacate the two convictions, while emphasizing that this should not be taken as indicative of Ms. Lynch’s view on the stacking provision in other cases.

In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”

Judge Gleeson's full 11-page opinion in Holloway v. US, No. 01-CV-1017 (E.D.N.Y. July 28, 2014)(available for download below), is a must-read for lots of reasons. The opinion is not be easily summarized, but this part of its conclusion provide a flavor of what comes before:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing.  By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts.  He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....

This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....

A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway.  Some will satisfy the criteria for Department of Justice support, while others will not.  In any event, there’s no good reason why all of them must end up in the clemency bottleneck.  Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced.  Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.

Download Holloway Memo FILED 7-28-14

July 28, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

"Are Opponents Of The Death Penalty Contributing To Its Problems?"

The question in the title of this post is the headline of this notable recent NPR story.  Here are excerpts:

Kevin Cooper was convicted of murdering a married couple and two children, and was sentenced to die. That was back in 1985. Cooper is still awaiting execution on California's death row.

San Bernardino County District Attorney Michael Ramos, who is handling the case, blames the long delay on Cooper's multiple appeals in state and federal courts. "This is all a big strategic plan to really manipulate the system to attack capital punishment, not just in California, but in the United States," Ramos says.

The death penalty is under considerable pressure, both from court decisions and a series of problematic executions, including one this week in Arizona. Six states have abolished the death penalty over the past seven years. Death penalty supporters such as Ramos say this is no accident. They believe opponents intentionally toss sand in the gears of the execution process, and then complain that the system doesn't work. "It's a delaying tactic that then allows them to scream it's unconstitutional because it's been delayed too long," Ramos says.

Defense attorneys dismiss this as nonsense. The problems with the death penalty, they say, were not created by its opponents. "It's not the defense attorneys who are holding executions up," says Deborah Denno, a law professor at Fordham University. "Not by a long shot."...

Last week, U.S. District Judge Cormac Carney found California's system of capital punishment unconstitutional because executions are delayed for too long and are "arbitrary" in terms of which condemned prisoners are ever actually executed. Death penalty supporters argue that it's the killers — and their attorneys — causing most of the delays.

"Having done everything they can to cause the problem, they decry the problem," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, which defends victims' rights.

But many of the delays aren't caused by defense attorneys, rather the very lack of them, Denno says. In California, it can take years for a condemned prisoner even to be appointed counsel, and years more to wait for what is known as a post-conviction hearing.

"Even before a case gets to federal court, there's often more than 10 years of delays built into the system that don't have anything to do with what's brought from the defense," says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, Mo., which defends the condemned....

In addition to traditional questions regarding innocence and adequacy of counsel, defense attorneys now will typically challenge a state's method of execution. Lethal injections, which for years had a more anodyne reputation than gas chambers or the electric chair, have become problematic in and of themselves....

Scheidegger, the foundation attorney, says death penalty opponents, having successfully promoted lethal injections at the expense of older methods by portraying it as more humane, are now undermining states' use of drugs through their legal challenges.

Recent related posts on the California capital ruling by US District Judge Carney:

July 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, July 27, 2014

"Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing"

The title of this post is the title of this notable new article by Miriam Gohara that I just came across via SSRN.  Here is the abstract:

Investigation and presentation of comprehensive life history mitigation is at the heart of successful capital litigation that has contributed to a steady decline in capital sentences. Noncapital incarceration rates have also begun to level, and various legal developments have signaled a re-ascent of more individualized noncapital sentencing proceedings.  This return to individualized sentencing invites consideration of whether life history mitigation may, as it has in capital cases, hasten a turn away from mostly retributive punishment resulting in disproportionately harsh noncapital sentencing to a more merciful rehabilitative approach.  The robust capital mitigation practice required by today's prevailing professional capital defense norms developed following the Supreme Court's Eighth Amendment doctrine requiring individualized capital sentences that account for the unique characteristics of the offender. No such doctrinal imperative applies to noncapital sentencing. As a result, professional noncapital defense sentencing standards, while providing a general basis for various aspects of sentencing advocacy, remain relatively underdeveloped, though the same bases for ameliorating punishment in capital cases should apply with equal practical force to noncapital cases.

At the same time, institutional and doctrinal barriers -- including high caseloads and lack of resources, the prevalence of plea bargaining, and the Supreme Court's “death is different” precedent -- present formidable challenges to routine presentation of life history mitigation in noncapital cases.  Therefore, the regular presentation of life history mitigation, lacking a constitutional mandate and operating in a structure different from that of capital sentencing, will depend in the immediate term on the initiative of criminal defense lawyers with the will to consistently present it in noncapital cases.  A more widespread adoption of comprehensive noncapital mitigation practice will benefit individual clients, change the expectations of sentencing courts concerning what information they should have available before ordering punishment, and provide insight into the social causes of various types of crimes.  Over time, as it has in capital cases, familiarity with the mitigating force of social history may serve as a powerful basis for empathy and amelioration of overly punitive noncapital punishment.

July 27, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Defender hiccup or major headache for Clemency Project 2014?

The question in the title of this post is prompted by this new article from Al Jazeera America headlined "Federal defenders potentially excluded from historic clemency drive." Here are excerpts:

Six months after the Justice Department called on defense lawyers to help it identify and vet candidates for its clemency drive, there is concern that the federal defenders — whom the DOJ invited in as key partners — might never have been authorized to participate in the first place. This could leave the initiative without the manpower it needs.

A high portion of the potential pool of inmates is represented by the federal defenders, and they have been critical in the formation and operation of Clemency Project 2014, a coalition of defense lawyers and advocates created in the wake of the DOJ’s call. (The vast majority of those prosecuted in federal courts receive court-appointed lawyers; in districts where there is a federal defenders’ office, they generally handle 60 percent of those cases.)

"Federal defenders include some of the best courtroom and appellate advocates in the United States. Having them work with the Clemency Project 2014 has been important to the work we are doing,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota, who has been training lawyers for the Clemency Project. “Losing them as a part of the coalition would be a significant challenge.”

The courts appoint federal defenders — under the Criminal Justice Act — to represent indigent defendants in federal judicial proceedings, a service paid for by the public. Now the courts’ highest authority is considering whether those appointments can extend to representing clients in their petitions to the president for mercy, a process conducted wholly in the executive branch....

In February, the Justice Department invited representatives from a select group of its traditional rivals — the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, Families Against Mandatory Minimums and the federal defenders — to a series of meetings to discuss how the process might be structured. (A conservative organization, Judicial Watch, is currently suing the Justice Department to make those discussions public.)

The criteria that eventually emerged called for inmates who were nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. They would also have to have served at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.

While the Justice Department will ultimately decide which inmates to recommend to the president for clemency, it is the defense bar that has been tasked by the government with most of the upfront work, including identifying worthy candidates, recruiting and training the vast numbers of pro bono attorneys needed to assist the effort, preparing the petitions and vetting which petitions reach the Justice Department’s Office of the Pardon Attorney....

Cynthia W. Roseberry, the newly appointed head of the Clemency Project 2014, a former federal defender herself, said that “we look forward to continuing our collaboration with the federal defenders,” and that she remained confident that the project has the resources to identify all prisoners who meet the criteria for clemency and to ensure they have access to counsel at no cost....

The federal defenders declined to comment on internal discussions relating to when, if ever, consideration was given to whether they were statutorily authorized to participate in such a broad clemency effort. Kathy Nester, the federal public defender for the district of Utah and the defenders’ representative on the Clemency Project 2014 steering committee, referred to standing orders by judges in six districts already appointing defenders, saying it was evidence that the work logically falls to them. (At the time of publication, the administrative office of the courts was only able to confirm that there were four such standing orders.)

“It was a federal public defender's office that submitted the successful clemency petition in the case of Ezell Gilbert late last year,” said Nester, referring to one of the eight inmates whose sentences President Barack Obama commuted in December 2013. “This was done at the urging of [the Justice Department] and federal judges who had reviewed the case. Defenders have approached the clemency project with a good faith belief that we are supposed to take positions that are in the best interest of our clients, and that this historical opportunity for relief from unreasonable sentences would certainly fall within that mission.”

Similarly, in June, a federal defender motion in Cleveland asked for a court appointment to do clemency petitions, noting that it was the deputy attorney general, not the inmates themselves, who had requested that the defense bar seek clemency for qualified inmates. In response, the DOJ asked the court to defer appointing the defenders until the administrative office of the U.S. courts makes its decision as to whether the defenders are authorized to do such work. Neither the department nor the U.S. Attorney’s office in Cleveland would say whether this was now a department-wide position....

The more than 20,000 federal inmates who have taken up the DOJ on its invitation and asked Clemency Project 2014 to review their cases now await those who set these wheels in motion to sort it all out.

I sincerely hope there does not end up being major difficulties with federal defenders working on clemency petitions for federal inmates. And however these administrative issues get worked out, it will remain the case that there are just far too many federal prisoners who could benefit from experienced defense lawyers and far too few lawyers able to provide all the legal help needed.

July 27, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, July 26, 2014

Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms

This new CNN article details how two prominent Republicans, both of whom are thought to be considering a serious run for President in 2016, are continuing to talk about the need for significant criminal justice reforms.  Here are excerpts:

Sen. Rand Paul is proposing legislation aimed at eliminating criminal sentencing rules that adversely impact minorities, saying that "we need some fresh ideas to combat old and festering problems."

The Republican from Kentucky described the measure Friday in a speech to the National Urban League. It's part of his aggressive outreach effort to African-Americans and other voting groups who don't traditionally back Republicans. Paul is trying to expand the GOP base and lay the groundwork for a potential 2016 campaign for the White House.

His address highlighted sentencing reform, expanded voting rights, and education reform. It came one day after two other possible Republican presidential hopefuls, New Jersey Gov. Chris Christie and Rep. Paul Ryan of Wisconsin, also touted similar reforms.

Sentencing reform is one of Paul's signature issues. As he's done in previous speeches, he told the audience gathered in Cincinnati that the nation's criminal justice system is still stacked against minorities. "Three out of four people in prison right now for non-violent crimes are black or brown. Our prisons are bursting with young men of color and our communities are full of broken families," Paul said....

Paul also touted that he's working with Democrats, like Sen. Cory Booker of New Jersey, on a bill that would expunge records, under certain circumstances, of non-violent and youth related crimes. And, he's rubbing shoulders with Attorney General Eric Holder on sentencing reform as well as some Republican governors.

Paul also used his address in front of the National Urban League convention to make another pitch for expanding the voting rights of ex-cons. "Nationwide, five million people are prevented from voting because of their criminal record. It's the biggest impediment to voting in our country. I want more people to vote, not less," Paul said.

He described himself as "a Republican who wants to restore a federal role for the government in the Voting Rights Act." Paul twice quoted from Martin Luther King Jr. in his speech to the century-old civil rights organization. And Paul again mentioned King as he continued his crusade against the federal government's current surveillance activities....

Some of Paul's language sounds similar to what Christie is saying. Thursday night, he and the chairman of the Republican Governor's Association once again said that there's far too many people sitting in prisons for non-violent drug crimes and called on Republicans to focus on people not just before they're born but after as well.

"I'm pro-life and if you're pro-life, you have to be pro-life when they get out of the womb also," Christie said in an appearance at the Aspen Institute in Colorado, repeating comments he made last month at a major social conservative gathering. Gov. Christie: 'You have to be pro-life when they get out of the womb'

Christie said the justice system must stop stigmatizing the disease of drug addiction and focus more on rehabilitation. "We don't give them any kind of significant treatment, long-range treatment, and then we release them. And then we wonder why they go back and commit more crimes to support their habit," Christie said.

Some recent and older related posts:

July 26, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, July 24, 2014

Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms

Paul-ryanAs reported in this official press release, House Budget Committee Chair Paul Ryan today "released a new discussion draft, 'Expanding Opportunity in America,' [which] proposes a new pilot project to strengthen the safety net and discusses a number of reforms to the EITC, education, criminal justice, and regressive regulation."  Notably, an extended section of this impressive document (Chapter 4, which runs nearly 10 of the draft's 70+ pages) is focused on criminal justice reforms.  Here are segments from this portion of the draft:

About 2.2 million people are currently behind bars — a more than 340 percent increase since 1980.  As a result, we spend about $80 billion on corrections at all levels of government — an inflation-adjusted increase of over 350 percent in that same period.  This growing cost burden on society is a cause for concern.  But perhaps what’s most troubling is the effect on individuals and families....

[Federal sentencing reform] seeks to tap this overlooked potential and ameliorate the collateral impact on children and families.  Although most offenders are in state prisons or local jails, successful reforms at the federal level could encourage states and local governments to follow their example.  This discussion draft explores a number of reforms on multiple fronts — how we sentence individuals to prison, how offenders are treated inside prison, and how society helps them to reintegrate afterwards.

Public safety is priority No. 1, so these reforms would apply to only non-violent and low-risk offenders.  The punishment should fit the crime, but in many cases the punishment of incarceration extends beyond prison time.  Once people have paid their debt to society, they should be able to move on. In that spirit, this proposal suggests three possible reforms:

• Grant judges more flexibility within mandatory-minimum guidelines when sentencing non-violent drug offenders.

• Implement a risk- and needs-assessment system in federal prisons while expanding enrollment in rehabilitative programming to reduce recidivism. Allow non-violent and low-risk inmates to use enrollment to earn time off their prison stay towards prerelease custody.

• Partner with reforms at the state and local level....

Unlike state inmates, only 6 percent of federal inmates are violent offenders, while another 15 percent are guilty of weapons offenses.  In fact, most federal prisoners—nearly 51 percent — are serving time for a drug-related offense, and data from the U.S. Sentencing Commission shows that most of these federal drug offenders are in the lowest criminal-history category.   But under current law, a single gram of crack cocaine could be all that separates a convict from a less-than-five-year sentence and a 40-year sentence. Rigid and excessive mandatory sentences for low-level drug offenders, like these, may add to an already over-crowded prison system without appreciably enhancing public safety.

There are also economic and social consequences to unreasonably long sentences. Not only do they put undue burdens on families, but they may actually make people more likely to return to crime.  As Justice Fellowship notes, “Rather than encouraging criminals to become peaceful, productive citizens, prison culture often has the opposite effect, operating as a graduate school for crime.”  The federal government should follow the lead of several states and consider how sentencing guidelines, including alternative forms of detention, can both prevent crime and steer non-violent, low-risk drug offenders away from the addictions and networks that make them more likely to reoffend....

Although crime rates have fallen since the 1980s, the unintended consequence of these mandatory minimums is that some low-risk, non-violent offenders serve unreasonably long sentences....

A major challenge of criminal-justice reform is lowering the high rates of recidivism. High rates of recidivism are not only costly to the taxpayer and dangerous for society; they present a missed opportunity to bring more individuals into society as productive and contributing members....

[Proposed] reforms seek to put a greater focus upon rehabilitation and reintegration. Although the federal government’s reach is limited, these reforms would give judges the discretion they need to prevent nonviolent offenders from serving unreasonably long sentences; they would align inmates’ incentives to help reduce recidivism; and they would partner with states and community groups to expand their life-affirming work.

July 24, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

"Paying for Gideon"

The title of this post is the headline of this notable new essay by Beth Colgan now available via SSRN. Here is the abstract:

To protect the “noble ideal” that “every defendant stands equal before the law,” Gideon v. Wainwright guaranteed the right to defense counsel for those who cannot afford it. Gideon’s concept is elegantly simple: if you are too poor to pay for counsel, the government will provide.  The much more complicated reality, however, is that since Gideon, courts have assigned counsel to millions of American defendants too poor to pay for an attorney, have required those defendants to pay for their counsels’ services, and have punished those unable to do so.

This essay examines how we moved from Gideon’s guarantee to this reality.  I assert that Gideon’s protection against recoupment for those with no ability to pay has remained hidden in plain sight due to misinterpretations in two lines of cases.  The first line involves a series of cases in which the Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment required the waiver of financial barriers to accessing the courts.  The second line involves the misapplication of the Fifth Amendment’s collateral consequences doctrine to the Sixth Amendment’s effective assistance of counsel jurisprudence, leading to a misunderstanding that to be constitutionally effective, counsel need not advise a client about collateral consequences.

I posit that the intersection of these two lines of cases has obscured the unconstitutional nature of today’s recoupment schemes, pushing Gideon out of the picture.  The more or less successful attempts by advocates, academics, and the courts to squeeze recoupment into a due process/equal protection/effective assistance of counsel frame misses the fact that today’s version of recoupment is itself a Gideon problem.

July 24, 2014 in Fines, Restitution and Other Economic Sanctions, Who Sentences? | Permalink | Comments (2) | TrackBack