Thursday, June 08, 2017

"Facial Profiling: Race, Physical Appearance, and Punishment"

The title of this post is the title of this notable new empirical paper authored by Brian Johnson and Ryan King.  Here is the abstract:

We investigate the associations among physical appearance, threat perceptions, and criminal punishment.  Psychological ideas about impression formation are integrated with criminological perspectives on sentencing to generate and test unique hypotheses about the associations among defendant facial characteristics, subjective evaluations of threatening appearance, and judicial imprisonment decisions.

We analyze newly collected data that link booking photos, criminal histories, and sentencing information for more than 1,100 convicted felony defendants.  Our findings indicate that Black defendants are perceived to be more threatening in appearance.  Other facial characteristics, such as physical attractiveness, baby-faced appearance, facial scars, and visible tattoos, also influence perceptions of threat, as do criminal history scores.  Furthermore, some physical appearance characteristics are significantly related to imprisonment decisions, even after controlling for other relevant case characteristics.  These and other findings are discussed as they relate to psychological research on impression formation, criminological theories of court actor decision-making, and sociological work on race and punishment.

June 8, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, June 07, 2017

Four Senators write to AG Sessions with pointed questions about the Sessions Memo on charging and sentencing

As detailed in this press release from Senator Mike Lee, "Sens. Mike Lee (R-UT), Dick Durbin (D-IL), Cory Booker (D-NJ), and Rand Paul (R-KY) sent a letter to Attorney General Jeff Sessions Wednesday, seeking answers about the Department of Justice’s May 10, 2017 memorandum, directing federal prosecutors to pursue the most serious offense possible when prosecuting defendants."  The three-page letter is available at this link, and it starts this way:

We write concerning the Department of Justice's May 10, 2017 memorandum directing federal prosecutors to "pursue the most serious, readily provable offense." The Department's new policy ignores the growing bipartisan view that federal sentencing laws are in grave need of reform.  In many cases, the new policy will result in counterproductive sentences that do nothing to make the public safer. And it appears to force the hand of the prosecutors closest to each case to seek the highest possible offense rather than enable them to determine an appropriate lesser charge, which can help guard against imposing excessive sentences.

Among the six pointed questions (with sub-questions) that end the letter are these that strike me as especially interesting:

Pursuant to the Department's new policy, prosecutors are allowed to apply for approval to deviate from the general rule that they must pursue the most serious, readily provable offense.  The memo, however, does not explain how the Department will decide whether to grant approval to deviate from the general rule.  What factors will the Department consider in making these decisions? How often do you anticipate that prosecutors will request approval to deviate from the Department's charging policy? How often do you expect such requests will be granted?  Will Main Justice track how frequently attorneys seek departures from the new policy?

Are there any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?  Do you believe that all applications of 18 U.S.C. § 924(c) result in fair sentences?  If the answer to either of those questions is "no," why do you believe the Department's new policy allows enough discretion to individual prosecutors to result in fair outcomes in cases implicating these statutes?

 Prior recent related posts: 

June 7, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Prof Stephanos Bibas among new slate of notable nominees to the circuit courts by Prez Trump

5914168_origThis big news in the world of Presidential nominations this morning would seem to be Prez Trump's decision, reported here, to nominate Christopher Wray to serve as head of the FBI.  Long-time and hard-core sentencing fans will perhaps recall that Wray was an Assistant AG for the Justice Department back when Blakely and Booker came down, so there is an interesting sentencing history that his name necessarily evokes.

But, other nomination news from inside-the-Beltway should be of even more interest to long-time and hard-core sentencing fans.  According to this Washington Times article, sentencing scholar Stephanos Bibas is getting tapped for an open position on the Third Circuit.  Here are the details from the press account, along with a bit of notable commentary therein:

President Trump announced a new round of 11 judicial nominations Wednesday, including three nominees for high-profile federal appeals courts.

One of the nominees, Colorado Supreme Court Justice Allison H. Eid, is being tapped by the president to fill a vacancy on the 10th U.S. Circuit Court of Appeals created when Justice Neil Gorsuch was confirmed for the Supreme Court in April. Justice Eid was on Mr. Trump’s list of conservative potential Supreme Court nominees that he presented to voters during the presidential campaign last year. She has served on Colorado’s high court since 2006, and previously was the state’s solicitor general.

“These appointments follow the successful nomination and confirmation of associate Justice Neil M. Gorsuch to the United States Supreme Court, the successful nomination and confirmation of Judge Amul R. Thapar of Kentucky to serve as a circuit judge on the United States Court of Appeals for the Sixth Circuit, and the nomination of numerous candidates to other judgeships,” the White House said in a statement.

Mr. Trump also is nominating U.S. District Court Judge Ralph R. Erickson of North Dakota for the 8th U.S. Circuit Court of Appeals, and University of Pennsylvania Law School professor Stephanos Bibas to serve on the 3rd U.S. Circuit Court of Appeals. Judge Erickson has served on the district court since 2003. The White House called Mr. Bibas, director of the university’s Supreme Court Clinic, “one of the nation”s leading experts in criminal law and procedure.” He has argued six cases before the Supreme Court, taught at the University of Chicago Law School and served from 1998 to 2000 as an assistant U.S. Attorney in the Southern District of New York....

“President Trump continues to put forward superlative judicial nominees with sterling credentials and impressive intellects,” said Jonathan Adler, director of the Center for Business Law & Regulation at Case Western Reserve University School of Law. “It’s especially notable that President Trump continues to pick current and former academics for the appellate bench — more so than any recent president. This will only magnify the impact his nominees are likely to have on the federal courts.”

I have previously noted in this space Prez Trump's apparent affinity for academics in his early judicial selections (as well as for folks with some sentencing history).  And I have a particular affinity for Prof Bibas not only because of his long history as a sentencing scholar, but also because we worked together on a Supreme Court case Tapia in which he was an appointed amicus and we co-authored one of my favorite articles, Making Sentencing Sensible.  Stephanos and I also co-authored an essay about capital sentencing, Engaging Capital Emotions.

Also, long-time and eagle-eyed blog readers may recall that Prof Bibas did a stint of guest-blogging in this space in conjunction with the release of his book, "The Machinery of Criminal Justice," which was published in 2012 by Oxford University Press and is available here.  All of his posts are linked under the category tab, Guest blogging by Professor Stephanos Bibas, and here are links to my introduction and then to all his substantive posts:

June 7, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (18)

Spotlighting the continued challenges for juve lifers like Henry Montgomery even after SCOTUS victories in Miller and Montgomery

Mother Jones has this notable new article about Henry Montgomery and other juveniles who are still fighting to get relief after seemingly helpful recent Supreme Court Eighth Amendment rulings. The full headline of this piece is "The Supreme Court Said His Prison Sentence Was Unconstitutional. He’s Still Behind Bars. Despite a ruling in their favor, Henry Montgomery and other juvenile lifers are no closer to getting out."  Here are excerpts:

But although the Supreme Court often appears all-powerful, its clout is more limited than it seems. Nearly 18 months after his victory, Montgomery is still sitting in Angola, and there’s no guarantee that he — or many of the roughly 1,000 others serving similar sentences across the country — will ever get out....

Montgomery’s saga began in November 1963 in East Baton Rouge, Louisiana, during a turbulent time of racial tensions, Ku Klux Klan activity, and cross-burnings. Montgomery, who is African American, was in 10th grade and playing hooky when he encountered the local sheriff, Charles Hurt, who was white. In a panic at being caught out of school, Montgomery allegedly shot and killed Hurt with his grandfather’s gun, which he had stolen....

[If sentenced today], Montgomery would be allowed to present evidence of mitigating circumstances, and his lawyers could argue that his youth and mental disability — he had an IQ of around 70 — should be grounds for a reduced sentence. Instead, a state appellate court upheld his mandatory life sentence, and that was the end of his contact with a lawyer for decades to come....

In 2012, the US Supreme Court offered juvenile lifers such as Montgomery a glimmer of hope. In Miller v. Alabama, a case of two men who’d been sentenced to mandatory life without parole for crimes they committed at the age of 14, the court ruled 5-4 that such sentences were unconstitutional. Mandatory life without parole violated the Eighth Amendment prohibition on cruel and unusual punishment, the court said, because such sentences failed to recognize that adults differ from children, who have “diminished culpability and greater prospects for reform.” The court held that life-without-parole sentences should be used only for “the rare juvenile offender whose crime reflects irreparable corruption.”

The decision set off a flurry of litigation by inmates incarcerated as children who argued that the Miller decision should be applied retroactively. Montgomery filed a petition to have his sentence overturned without the help of a lawyer, but the Baton Rouge public defender’s office eventually took up his case. The local district attorney fought him every step of the way, and he lost in all the state appeals courts. But in 2015, the US Supreme Court agreed to hear his case.

In January 2016, the court ruled in Montgomery’s favor, with Kennedy writing that the decision, which gave juvenile lifers a shot at parole, “would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”

But the decision was only the beginning of Montgomery’s fight.  The Supreme Court decision gave states a lot of leeway in how they handle cases like Montgomery’s and punted the details to lower-court judges and state legislators.  In Louisiana, a judge could reduce Montgomery’s sentence to life with parole, but that would leave his fate to Louisiana’s notoriously stringent parole board, which could deny him release.  The Supreme Court also left room for judges to simply resentence eligible inmates to life without parole by declaring them irreparably corrupt. And that’s exactly what the Baton Rouge district attorney pushed for in Montgomery’s case....

Montgomery’s case has languished in part because the state didn’t know quite how to handle Louisiana’s 300 juvenile lifers who’d won the right to resentencing.  Should an inmate have a full-blown sentencing hearing that would resemble those used in capital cases?  And who should decide the outcome, a jury or a judge?  The courts put Montgomery’s case on hold while the state Legislature considered a bill that would automatically grant juvenile lifers a shot at parole after they’d served 30 years in prison.  But the bill died last summer, and although it’s been taken up again this year, the courts have decided to move forward without any new legislation.  Some juvenile lifers have been able to win plea bargains that freed them, but they aren’t the majority.

Working against Montgomery is the fact that the adult children and grandchildren of his victim have been involved in the process and are opposed to his release....

Montgomery is one of many juvenile lifers whose sentences remain in limbo after the Supreme Court decision. Michigan, for example, has about 350 juvenile lifers behind bars. Since the Supreme Court decision in Montgomery, the state has begun resentencing them.  [Juvenile Law Center's Marsha] Levick says that in about 85 percent of those cases, prosecutors are again seeking life without parole.  In one jurisdiction, the local prosecutor is the same former judge who sentenced many of the inmates to life in the first place. She has requested new life sentences for 44 of 49 inmates serving life without parole for murders they committed before the age of 18....

Jody Kent Lavy, executive director of the Campaign for Fair Sentencing of Youth, visited Montgomery in Angola earlier this year and says that because of the resistance of states like Louisiana and Michigan to implementing the Montgomery decision, the high court really “needs to take another step to bar life without parole [for juveniles] outright.”  She notes that local district attorneys are usually elected, and so the Montgomery decision “still leaves room for racially charged decisions, politically motivated decisions, as opposed to what is fair.  It keeps me up at night.”

A state court judge heard Montgomery’s case last month and promised a decision by late June.

June 7, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, June 06, 2017

"Where Are the United States Attorneys?"

The title of this post is the title of this New York Times editorial, which starts and ends this way:

Three months after President Trump abruptly fired half of the nation’s 93 United States attorneys, following the resignations of the other half, he has yet to replace a single one.

It’s bizarre — and revealing — that a man who called himself the “law and order candidate” during the 2016 campaign and spoke of “lawless chaos” in his address to Congress would permit such a leadership vacuum at federal prosecutors’ offices around the country.  United States attorneys are responsible for prosecuting terrorism offenses, serious financial fraud, public corruption, crimes related to gang activity, drug trafficking and all other federal crimes....

Especially when it comes to higher-profile, long-term cases, Senate-confirmed heads are needed to work in coordination with the Justice Department.  The United States attorneys are only the tip of the iceberg.  Mr. Trump has yet to nominate a new F.B.I. chief after firing the former director, James Comey, last month.  The Justice Department’s criminal, civil and national-security divisions are all under temporary leadership.  These delays are strange even for a White House that ran what one former official called the “slowest transition in decades” and that has dealt with key government posts with all the urgency of a summer barbecue.

While his hiring freeze, which is leaving many lower federal jobs unfilled, is part of a broader strategy to hobble or suffocate entire federal agencies, this seems less deliberate and harder to understand.  The prosecutors certainly won’t be coming on board anytime soon.  Even in a fully functioning administration, it takes months for nominees to be screened by the F.B.I. and approved by the Senate.

One familiar rationale — that Mr. Trump wasn’t prepared because he never expected to win — may account for some of the delay, but it’s an increasingly embarrassing excuse.  You don’t run for president on a major-party ticket as a lark, and you don’t pink-slip top federal prosecutors en masse without a long list of qualified candidates in your back pocket.

There are two other obvious, and perhaps simpler, explanations, and both may be correct.  Mr. Trump does not actually believe in or care about his campaign claim of “lawless chaos” in our streets.  And Mr. Trump is not a good manager — not of his businesses, certainly, and not of the vastly larger, more complex organization he now runs, the one that matters to the well-being of every American.

June 6, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

Senators Grassley and Feinstein working on enhanced federal penalties for synthetic opioid offenses

This slightly confusing new NPR story, headlined "Lawmakers Consider Tough New Penalties For Opioid Crimes, Bucking Trend," suggests that the only kind of sentencing reform being now discussed in Congress involves increasing rather than decreasing drug offense sentences.  Here are the still opaque details as reported by NPR (with my emphasis added, for subsequent comment):

For nearly four years now, an unusual coalition of Republicans and Democrats has worked to reduce mandatory prison terms for many federal drug crimes.  But that bipartisan movement may be shallower than it appears. Indeed, Republican Sen. Chuck Grassley of Iowa and Democratic Sen. Dianne Feinstein of California, who both supported a cut-back on some drug punishments, are preparing a bill that would create tough new penalties for people caught with synthetic opioid drugs.  Grassley chairs the Senate Judiciary Committee, and Feinstein is the panel's ranking member.

A draft of the legislation reviewed by NPR suggests the plan would give the attorney general a lot more power to ban all kinds of synthetic drugs, since criminals often change the recipe to evade law enforcement.  It would impose a 10-year maximum sentence on people caught selling them as a first offense. That would double if they do it again.

Michael Collins of the Drug Policy Alliance, which advocates for lighter punishments for drug offenders, has seen language in the proposal. He said he thinks it's a bad idea. "These synthetic drugs are added to heroin often outside the U.S., but the bill takes such a broad approach that it's penalizing individuals who sell drugs at a low level inside the U.S., and so it's going to do nothing to deter and stop the supply of drugs," Collins said.

Collins said drug addiction is a public health challenge. He said sending more people to prison won't help, just as it didn't help in the crack cocaine era a few decades ago. "The problem is really we've been here before with this approach in terms of the war on drugs and ramping up sentences, and we know that escalating sentences ... does nothing to help the opioid epidemic," Collins said. "In fact, it only serves to increase the prison population."

Many people inside the Justice Department disagree. Just last week, federal prosecutors in Utah announced charges against a half-dozen people in suburban Salt Lake City.  Authorities say two of them quit their jobs at eBay to embark on a new enterprise. They allegedly ordered a version of the synthetic opioid fentanyl by mail from China, then pressed the drug into counterfeit pills and sold them online to customers across the country.

U.S. Attorney John Huber brought the case. "Like much of the country, we are not escaping the heroin and opioid epidemic and this latest version or brand of it with the fentanyl danger just makes it that much more pressing of a concern for us," Huber said.  The alleged ringleader — 27-year-old Aaron Michael Shamo — could spend the rest of his life in prison if he's convicted under the current drug laws.  "Mr. Shamo faces a mandatory life minimum sentence if he's convicted and that shows how serious this is, when you're dealing in such large quantities of such a dangerous substance," Huber said. "This is as serious as it gets."

As this NPR story already indirectly indicates, severe federal sentences are already on the books for serious drug dealers who traffic in fentanyl, and I am pretty sure a first offense of even a small amount of fentanyl dealing already carries a mandatory maximum sentence of decades. Thus, I think the highlighted line from the article here meant to report that Senators Grassley and Feinstein are working on a bill that would have a 10-year mandatory minimum sentence for even low-lever, first-time dealing of fentanyl.

I am not yet going to criticize a bill I have not yet seen, nor am I going to criticize the instinct of many legislators and law enforcement officials that drastic action needs to be taken in response to the still growing opioid epidemic.  But I am certainly prepared to express disappointment that leaders like Senators Grassley and Feinstein still apparently think that new mandatory minimum sentencing provisions serve as a wise and appropriate response to a national drug problem.

June 6, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Might AG Sessions resign due to tension with Prez Trump?

As I write the question in the title of this post, I already realize the answer surely is "No."  But the very fact the question arises is somewhat remarkable, and this ABC News report is the reason it does.  The report is headlined "Jeff Sessions suggested he could resign amid rising tension with President Trump," and here are excerpts:

As the White House braces for former FBI Director James Comey’s testimony Thursday, sources tell ABC News the relationship between President Donald Trump and Attorney General Jeff Sessions has become so tense that Sessions at one point recently even suggested he could resign.

The friction between the two men stems from the attorney general's abrupt decision in March to recuse himself from anything related to the Russia investigation -- a decision the president only learned about minutes before Sessions announced it publicly. Multiple sources say the recusal is one of the top disappointments of his presidency so far and one the president has remained fixated on.

Trump’s anger over the recusal has not diminished with time. Two sources close to the president say he has lashed out repeatedly at the attorney general in private meetings, blaming the recusal for the expansion of the Russia investigation, now overseen by Special Counsel and former FBI Director Robert Mueller.

But sources say the frustration runs both ways, prompting the resignation offer from Sessions. Asked by ABC News if the attorney general had threatened or offered to resign, Justice Department spokesperson Sarah Isgur Flores declined to comment.

The New York Times is on this beat with these recent articles on this front:

"Trump Grows Discontented With Attorney General Jeff Sessions"

"Sessions Is Said to Have Offered to Resign"

Dare I say that perhaps AG Session has offered to resign because he is now just so sick and tired of winning?

June 6, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (6)

A timely call for "Reorganizing the Federal Clemency Process"

Paul Larkin, who has written a number of recent notable article on clemency noted here and here, now has this new "Legal Memorandum" at The Heritage Foundation titled ""Reorganizing the Federal Clemency Process."  Here its abstract and "Key Points":

The President relies on the Department of Justice to filter out ineligible applicants and recommend from the remainder which ones should receive clemency, but the department suffers from an actual or apparent conflict of interest.  One proposed remedy would be for Congress to create an independent advisory board like the U.S. Sentencing Commission to review every clemency application and offer the President its recommendations.  A better alternative would be for the President to move the Office of the Pardon Attorney into the Executive Office of the President and use the Vice President as his principal clemency adviser.  The Vice President can offer the President several benefits in the clemency decision- making process that no one else in the government possesses.

Key Points:

Prior related posts:

June 6, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Discouraging account of the state of federal criminal justice reform come summer 2017

On the heels of big talk in summer 2013 from then-Attorney General Eric Holder about criminal justice reforms, some pundits (as noted here) were quick to suggest that momentum for major federal sentencing reform might be unstoppable. Ever the political pessimist, I was then quite hopeful but still not all that optimistic that Congress would find a way to enact some sweeping federal statutory sentencing reforms before too long.

But fast forward four years to the coming summer 2017, and there no seems to be very little reason to be hopeful or optimistic about anything getting done in this space anytime soon. This new Marshall Project feature article by Justin George highlights that this is not only a story of a new Prez and Attorney General with different criminal justice priorities, but also a story of reform voices on the left and right coming to battle each other in ways that may ensure there in no path forward. The article is headlined "Can This Marriage Be Saved?: Left and right came together on criminal justice reform. Then Trump happened." Here are a few notable excerpts:

John Malcolm [is] a legal scholar at the Heritage Foundation, the influential conservative think tank [and] a member of an unlikely alliance that hopes to end America’s status as the world’s most prolific jailer: liberals who find the criminal justice system racist, inequitable, and inhumane are joining forces with conservatives — such as Malcolm — who find it wasteful, harmful to families, and heavy-handed. Last year, reformers on both sides agreed to support a proposed law that would relax mandatory minimum sentences, giving federal judges somewhat more discretion in sentencing and helping low-level offenders avoid prison time. It was a modest proposal, compared to the size of the problem, but the bill attracted a rare amount of bipartisan support in Washington.

Despite that support, however, the measure failed to pass Congress. Some Republicans wanted the law to include a provision on “mens rea” reform, which would expand the category of crimes in which a defendant’s criminal intent is a factor in determining guilt. Democrats, convinced that such a provision would make it harder for prosecutors to go after corporate crime, resisted. The bill stalled, then died—and so did some of the spirit of common cause. Last year, as the contentious presidential election neared its conclusion, the alliance started to come undone.

Liberal members of the coalition, such as Jesselyn McCurdy, a lobbyist for the American Civil Liberties Union, say that the reform bill failed because obstructionist Republicans didn’t want to give President Obama anything he could claim as a bipartisan achievement on the verge of the election. But, as Malcolm sees it, it was Democrats, confident that Hillary Clinton would be president and that the Republican grip on Congress would be loosened, who decided that they no longer needed to compromise. “People’s positions became hardened,” Malcolm said. Conservatives, he added, also bristled at the “anti-police” rhetoric of the Black Lives Matter movement and at the left’s emphasis on the racial disparities of the criminal justice system.... Groups from the right and left still meet regularly on criminal justice issues, including at a monthly work luncheon that Malcolm hosts, at the Heritage Foundation. But momentum has been hard to regain. “Hurt feelings are impacting meaningful discussion,” Malcolm said. “For the right, the criticism of the left is ‘Your messaging stinks, and you don’t make it easy to pass stuff, because you make this difficult for conservatives to sign on to,’ ” Kevin Ring, the president of Families Against Mandatory Minimums, said. “And, for the left, the criticism of the right was ‘You didn't try that hard.’ ”...

But [Senator Mike] Lee, who still believes that a reform bill can get through Congress, said he is not so sure Sessions will be an impediment. “Jeff Sessions is in a different role now — he’s no longer a lawmaker,” Lee said. “I’ve had conversations with people in the White House and elsewhere in the administration in which I’ve explained to them this could be a really good bipartisan win, a nice bipartisan moment, and I’ve been working with the administration to figure out what level of comfort they have with it and what we need to do in order to move forward.” (The Department of Justice said that Sessions was not available for comment, and the White House did not respond to requests to interview Kushner for this story.)...

But the only notable criminal justice measures showing signs of life in the House so far this year would only create more opportunities to put people in prison or to hand out longer sentences, such as a measure expanding the powers of federal probation officers to arrest anyone who interferes with their work. Given this inhospitable climate, Ring, of Families Against Mandatory Minimums, said that perhaps the best course for reformers is to hope for “benign neglect” from the Trump administration and to focus on repairing the damage done to the alliance by the “emotional fallout” of 2016. Maybe, he said, “this is time for us to put our head down and start winning hearts and minds.”

June 6, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, June 05, 2017

Gearing up for big state court argument on the state and fate of California's death penalty

The San Francisco Chronicle has this new article about the new issues the California Supreme Court is facing concerning the state's old death penalty problems. The piece is headlined "State high court ruling on death penalty could restart executions<" and here are excerpts:

The California Supreme Court hears many high-stakes cases on issues such as individual rights, taxes, and the lawmaking powers of the state and its voters. But it has seldom confronted a case with such potentially dramatic consequences as Tuesday’s hearing on the Proposition 66 death-penalty initiative.

If the court — traditionally deferential to the will of the voters — upholds the central provisions of Prop. 66, it will open the door to the resumption of executions in a state that last put a prisoner to death in January 2006. Nearly 750 condemned inmates inhabit the nation’s largest Death Row, and about 20 have run out of appeals to their conviction and sentence.

Prop. 66 also seeks to speed up future executions, in part by requiring the state’s high court to decide all death-penalty appeals within five years of sentencing — more than twice its current pace. If the court upholds that requirement, one of the most hotly contested in the case, it may have to reconfigure itself as a tribunal that gives priority to capital cases over all other types of criminal and civil law disputes in the nation’s most populous state.

California has long been what one expert calls a "symbolic death penalty state," one of 12 that has capital punishment on the books but has not executed anyone in more than a decade. Prodded by voters and lawsuits, the nation's most populous state may now roll back toward allowing executions, though observers are split on how quickly they will resume, if at all.

The justices could reject the deadlines while upholding other Prop. 66 provisions aimed at shortening the death-penalty process, such as limiting prisoners’ appeals and requiring more lawyers to accept capital cases. But opponents say the proposed timetables for court action are the heart of an initiative that seeks to hamstring judicial authority over state law.

Neither lawmakers nor voters can “force the courts to prioritize a certain type of case at the expense of all other types of cases,” said Christina Von der Ahe Rayburn, a lawyer in the suit to overturn Prop. 66. The requirement to move death cases to the front of the line, she said, would “impair the court’s inherent function of giving fair and equal treatment to (all) litigants.”

Not so, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an author of Prop. 66. He said the measure would actually relieve the state Supreme Court of some of its current death-penalty workload by transferring some hearings to trial courts. It sets a five-year deadline that he says the court could meet if it eliminated needless delays. “If our side wins, we can get back to having a death penalty that actually works and really see some executions being carried out,” probably before the end of this year, said Scheidegger, who will argue in defense of the measure along with Attorney General Xavier Becerra’s office at the hearing in Los Angeles.

Rayburn said an unrelated federal court case would probably delay any executions in California by at least six months, even if Prop. 66 were upheld. If the court overturns most or all of the initiative, executions will remain on hold for a year or longer as challenges to proposed new lethal-injection procedures work their way through state and federal courts....

Prop. 66 passed with 51 percent of the vote on the same November ballot in which a rival measure to repeal the death penalty in California was rejected by about seven percentage points, nearly twice the margin of defeat for a similar measure in 2012. While the votes were close, the message seemed clear: Californians want the death-penalty law enforced.  But the far-reaching provisions of Prop. 66, which received little attention during the campaign, have evidently raised concerns among the justices, who put the measure on hold while they consider a lawsuit seeking to overturn it....

Another provision of the measure seeks to expand the pool of defense lawyers by requiring attorneys to take capital cases if they already accept court appointments to represent defendants in other criminal cases.  Supporters say the change would ease the shortage of available lawyers, one of the chief reasons appeals take so long.  Opponents say it would put condemned inmates’ fates in the hands of unqualified lawyers and prompt many lawyers to refuse future assignments.

Prop. 66 would also speed up the state’s switch from three-drug executions, in use from 1996 to 2006, to lethal injections of a single barbiturate. Gov. Jerry Brown’s administration proposed procedures for one-drug executions last year in settlement of a lawsuit by relatives of murder victims.  Prison officials are still reviewing those procedures under a long-standing law that requires them to consider public comments.  The commenters have included organizations that say the proposed drugs are untested in executions and the procedures are unreliable....

Two of the court’s seven justices, Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, have removed themselves from the case because they are members of the state’s Judicial Council....  Their replacements are two randomly selected appeals court justices, Andrea Hoch of the Sacramento court, an appointee of Gov. Arnold Schwarzenegger, and Raymond Ikola, appointed to the court in Santa Ana by Gov. Gray Davis.

June 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Deputy AG Rosenstein suggests rising crime justifies prosecutorial shift from Holder Memo to Sessions Memo

I just saw this AP article from late last week reporting on an interesting interview with the second in charge at the US Department of Justice.  Here are the details:

The Justice Department’s new policy urging harsher punishments for most criminals is meant to target the worst gang members and drug traffickers, Deputy Attorney General Rod Rosenstein said Friday in an effort to mollify critics who fear a revival of drug war policies. “We’re not about filling prisons,” Rosenstein told The Associated Press in his first interview since becoming the Justice Department’s No. 2 official. “The mission is to reduce violent crime and drug abuse, and this helps us do that.”

Rosenstein emphasized the department’s plan to fight violent crime that includes prosecutors’ ability to decide whether to level charges that carry mandatory minimum sentences — a carrots-and-sticks approach for gaining cooperation. He acknowledged that federal prosecutors will sometimes charge lower-level criminals to take down entire gangs but “that’s the exception not the rule.”...

Attorney General Jeff Sessions’ directive last month urges federal prosecutors to seek the steepest penalties for most crime suspects, a reversal of Obama-era policies that aimed to reduce the federal prison population and show more leniency to lower-level drug offenders. Sessions’ Democratic predecessor, Eric Holder, told prosecutors they could, in some cases, leave drug quantities out of documents to avoid charging suspects with crimes that trigger years-long mandatory minimum punishments.

Some prosecutors have said they felt constrained by the Holder directive. Under that old rule, they worried about a loss of plea-bargaining leverage — and a key inducement for cooperation — without the ability to more freely pursue charges that carry mandatory minimum sentences.

Advocates for changes to the criminal justice system assailed the reversal as a return to drug-war era policies that helped ravage minority communities and put even nonviolent drug offenders in prison for long terms. Among the sharpest critics was Holder, who called it an “ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.”

Rosenstein said he dutifully implemented Holder’s policy when it was issued in 2013 but believes recent spikes in violence in some cities necessitate a new approach. Supporters of Holder’s policy “felt like there were too many people in prison and crime rates were falling, and they were hopeful that they could reduce enforcement and keep crime rates low,” he said. “We’re in a different position now.”

Officials will be continually tracking crime statistics in cities that have seen recent spikes in violence. But any change won’t be immediate, Rosenstein said. Sessions’ directive gives prosecutors leeway to veer from the policy and levy less-serious charges when warranted. And federal prosecutors rarely take cases against “minor offenders,” focusing their attention instead on larger criminal organizations, Rosenstein said. “We think it’s important in this circumstance in 2017 to restore to our federal prosecutors the authority to use the penalties Congress has given them in cases they think it’s important,” Rosenstein said. “We’re not micromanaging from Washington.”

I find it quite interesting that DAG Rosenstein here repeated a line used by AG Sessions last month when discussing his new charging/sentencing memo that the new policy is "not micromanaging from Washington." This leads me to think that at least some local US Attorneys expressed concern about being "micromanaged" by the Holder Memos, and it leads me to wonder if these US Attorneys will really feel more free from micromanaging under the Sessions Memo.

Prior recent related posts: 

June 5, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Supreme Court unanimously limits reach of federal drug-offense forfeiture statute

The US Supreme Court this morning handed down a unanimous opinion in Honeycutt v. United States, No. 16-142 (S. Ct. June 5, 2017) (available here), a case concerning the reach of the federal criminal forfeiture statute. The opinion for the Court was authored by Justice Sotomayor, and it starts and ends this way:

A federal statute — 21 U.S.C. § 853 — mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes.  This case concerns how § 853 operates when two or more defendants act as part of a conspiracy. Specifically, the issue is whether, under § 853, a defendant may be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. The Court holds that such liability is inconsistent with the statute’s text and structure....

Forfeiture pursuant to § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime.  In this case, the Government has conceded that Terry Honeycutt had no ownership interest in his brother’s store and did not personally benefit from the Polar Pure sales.  App. to Pet. for Cert. 60a.  The District Court agreed. Id., at 40a.  Because Honeycutt never obtained tainted property as a result of the crime, § 853 does not require any forfeiture.

The opinion's first footnote indicates that a majority of circuit courts embraced a broader view of the federal forfeiture statute, which in turns further reinforces my long-standing view that SCOTUS these days is generally more pro-defendant on a wide range of sentencing issues than most lower federal courts.

June 5, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Supreme Court grants cert on whether Fourth Amendment limits collections of historical cell phone records

In this order list this morning, the US Supreme Court granted certiorari in Carpenter v. United States which asks, in the words of the cert petition, "whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment."

Though obviously not a sentencing case, I suspect lots of criminal justice fan (and others) will be keeping an eye on Carpenter in the months ahead.  In addition, this case would seem to present the first big opportunity for the newest Justice, Justice Neil Gorsuch, to reveal his take on the Fourth Amendment in particular and privacy issues more generally.

June 5, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, June 04, 2017

Federal District Judge Mark "Bennett says 80% of the mandatory sentences he hands down are unjust"

The quote in the title of this post's headline is just one of a number of notable lines from this extended CNN article headlined "The judge who says he's part of the gravest injustice in America." Here is some of the context and particulars from the article:

[U.S. District Court Judge Mark] Bennett seems exasperated, exhausted almost, as he explains he must sentence [Susan] Rice to a full five years -- the mandatory minimum required by law. It is a sentence he deems unjust, too much for a low-level addict, just for being caught with a certain weight of drugs.  

Bennett makes sure the record reflects he felt strongly enough to request that Iowa's US Attorney consider waiving the mandatory minimum. He accepts the defense mitigation that Rice had never been in trouble before she was in her 50s, when she began drinking heavily after a bad divorce and was introduced to meth. She met a mid-level dealer who offered her a mattress in his basement and free meth if she would drive him around. A willing drug mule to feed her addiction? Yes. But not the drug trafficker or conspirator whom the charges and mandatory minimum sentences were designed to target, the judge believed.

His plea fell on deaf ears.  He was told there was no option for Rice to be treated as an exception to the law. "I strongly disagree with that decision," the judge says firmly from the bench.  It is not the first time he has felt this way. Bennett says 80% of the mandatory sentences he hands down are unjust -- but that he is handcuffed by the law, which leaves no room for judicial discretion to consider a sentence based on individual circumstances of the defendant. 

Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins.  Bennett says if he had the power, he would jail Rice for perhaps a year, or 18 months.  Across the street in a state courthouse, she would have been put on probation, he says.  "I think it's a miscarriage of justice," Bennett says. "But you know people are entitled to their own sense of what justice is."

Bennett hoped the tide was turning after members of both parties began pushing for sentencing reform on both state and federal levels, arguing it had been a huge mistake.  Now Jeff Sessions, Donald Trump's attorney general, has instructed that the law governing mandatory minimums be enforced with renewed vigor. "If you are a drug trafficker," Sessions said after issuing his memo to prosecutors, "we will not look the other way. We will not be willfully blind to your misconduct."

Bennett thinks this approach is unjust. "I basically couldn't live with myself if I didn't speak out," he says, standing in the center of his courtroom only hours after sentencing Rice. "I'm compelled to talk about it because I think it's one of the gravest injustices in the history of America."  Year after year, giving out those sentences, is wearing on him.  "The burden of having given so many unjust sentences is a very heavy thing for me to carry around," Bennett says beginning to choke up. "I do not consider myself soft on crime, but I consider myself opposed to mandatory minimums for low level non-violent drug dealers who are basically addicts," he says....

The National Association of Assistant US Attorneys, made up of those who prosecute federal cases, supports Sessions' push to charge the most serious crime that is provable.  "It's an effective way of protecting the public and it has served us well for an awful long time," the group's president Larry Leiser says.  "People who were eligible for mandatory minimums are truly people who are involved in significant quantities of these very dangerous substances."  He rejects recent efforts to relax sentencing laws.  And he rejects the view the law unfairly catches non-violent addicts who are simply feeding their addiction by selling drugs.  And he hails the provision that lets offenders help themselves to lower sentences if they in turn help the authorities take serious criminals off the streets.

June 4, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Saturday, June 03, 2017

"Is the death penalty dying in Dallas County?"

The question in the title of this post is the headline of this local article which documents a trend that leads me to think that the death penalty is never again likely to be a significant part of American criminal justice systems (if it every really was in the recent past).  Here are excerpts:

The crimes were heinous but Dallas County jurors couldn't condemn the convicted killers. A college student killed three people at a drug house in a premeditated robbery. A former special education teacher and U.S. Army veteran killed his girlfriend, her teenage daughter, his estranged wife, her adult daughter and severely wounded four children in a two-city rampage.

But neither killer received the death penalty, a punishment reserved for the "worst of the worst." Statewide, juries have declined death sentences in nearly half of the cases presented to them in the past two years.

So, what does it take to win a death penalty sentence? "You gotta be perfect probably these days," said Edwin King, a special prosecutor in one of the Dallas County cases.

Jurors couldn't agree to the death sentence in the two recent capital murder trials. They were the first Dallas County cases in which the state sought the death penalty since 2014.

The decision to seek the death penalty is based on the the severity of the crime, criminal background and what the victim's family wants, said Dallas County District Attorney Faith Johnson. "Our office only seeks the death penalty in the most heinous and serious of crimes," Johnson said....

"Even in Texas, the death penalty is dying," said Jason Redick of the Texas Coalition Against the Death Penalty. In the 15 death penalty cases tried in Texas since 2015, jurors have sent only eight men to death row. Death sentences peaked in the 1990s. Between 2007 and 2013, Dallas County led the state in defendants sent to death row. During that time, the county sentenced 12 people to death. Executions in Texas are also declining because of legal reforms that give prisoners more chances to have their sentences reviewed.

Jurors are only selected after they agree that they can give the ultimate punishment. Even so, they appear to be split on the issue in recent years. "We know these aren't folks who are anti-death penalty folks," Redick said. "At one point, they said they could hand out a death sentence."

June 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

NPR covers debate over federal sentencing and mandatory minimums in three parts

This past week, National Public Radio ran a notable three-part series with conversations about modern federal sentencing realities on its Morning Edition program.  Here are the links, headings and brief descriptions of who what talking about what:

Mass Incarceration Is A Major U.S. Issue, Georgetown Law Professor Says

Rachel Martin talks to Georgetown University Law professor Paul Butler about the ongoing and new challenges facing the nation regarding the criminal justice system.

Former Prosecutor On Why He Supports Mandatory Minimums

Attorney General Sessions told federal prosecutors to seek the harshest penalties possible against defendants.  Former federal prosecutor Bill Otis tells Rachel Martin why he supports the guidelines.

A Federal Judge Says Mandatory Minimum Sentences Often Don't Fit The Crime

NPR's Rachel Martin speaks to federal Judge Mark Bennett of Iowa, who opposes mandatory minimum charging and sentencing guidelines for nonviolent drug offenses.

June 3, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, June 02, 2017

Considering the unique housing challenges for aging sex offenders

This new Atlantic article explores the questions that now attend an ever-growing and ever-aging sex offender population.  The piece is headlined "The Puzzle of Housing Aging Sex Offenders: States are grappling with how to care for a growing population of registered offenders in long-term care facilities."  Here are excerpts:

When state officials finally released William Cubbage from the Iowa Mental Health Institute in 2010, they predicted he was too sick to hurt anyone again. But the octogenarian only became an even more notorious sex offender....

And while Cubbage’s case is extreme, he’s symptomatic of a larger puzzle in America’s long-term care facilities that no one’s managed to solve.  As lawmakers in Oklahoma and Ohio have found, isolating aging sex offenders is easier planned than achieved.

“The problem is that you’re talking about a project that’s uniquely difficult when it comes to structural needs and safety,” says Amy McCoy, a public-information officer with the Iowa Department of Human Services. “You’re talking about things like hallways without corners. You’re also talking about building a place that isn’t a prison. It’s something entirely different from a traditional care facility. You want people in the least restrictive setting, but you also want to be able to respond if something does happen.”

Local lawmakers have been sounding alarms for at least a decade whenever sex offenders strike.  With no federal regulations dictating how long-term care centers should handle offenders, solutions vary state to state. In 2012, Iowa’s Governor pushed a bill requiring nursing homes to notify residents if an offender moved in, but it died in the legislature.  California’s Department of Corrections notifies nursing homes if anyone on the sex-offender registry applies for residency, and the nursing homes are required to notify residents and employees.  Illinois facilities forbid offenders from having roommates and tests them for any special care needs before sending the results to local police and the Department of Public Health. (Requests to interview multiple nursing homes in Iowa, Ohio, and Illinois for this story went unanswered.)

Just as Iowa’s now considering, Oklahoma passed law in 2008 to create a specialized nursing home for offenders.  But not a single bid to construct the property was submitted.  A contractor’s reluctance to be involved with such a property could be due to its specialized requirements, but in the view of the sex-offender advocate Derek Logue, it’s just as likely another case of people not wanting any connection to the registry. Logue is the founder of Once Fallen, which calls itself the “leading reference & resource site for Registered Citizens.” A Cincinnati resident, Logue himself is registered in Ohio for a 2001 conviction of First Degree Sexual Abuse against an underage girl. At age 40, he calls himself “one of the younger guys”; most offenders who call for help finding a place to live or a job are in their 50s or 60s.

“If you look at the nursing homes that do take registered citizens, they tend to have below-average grades,” Logue says. “It’s the same issue [offenders] face when they’re trying to find a place to live.  You’ll never be anywhere decent, you always end up with some landlord who doesn’t care about the property.  We don’t exactly get quality service.”

Logue knows you won’t cry over his failure to score a luxury penthouse, but he counters that he’s served his time.  And it’s his tribe’s pariah statues, he says, that makes registered offenders likely to need extra medical attention in their declining years.  Beyond the Gordian knot that is the ongoing argument over the sex-offender registry’s effectiveness, constitutionality, and methods of inclusion, offenders are less likely to be employed, more likely to live in poverty if they do have full-time work, and subsequently less likely to have access to preventive care.

It’s also hard to gauge exactly how much of a danger they pose as seniors. Sexual assaults are already underreported crimes, and recidivism rates among all ages vary from study by study. Karl Hanson and Kelly Morton-Bourgon, a pair of sex-crimes researchers who work for the Canadian government, estimate that the average rate is likely around 13.7 percent. Meanwhile, multiple recent studies suggest recidivism rates seem to decline among the elderly....

Another blind spot is that almost no one is counting how many sex offenders require end-of-life care. Back in 2006, the U.S. Government Accountability Office counted 700 registered sex offenders living in nursing homes or intermediate care facilities. More recent numbers among the nation’s 15,600 long-term care facilities and their 1.4 million residents are hard to come by.

June 2, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

"From Grace to Grids: Rethinking Due Process Protection for Parole"

The title of this post is the title of this notable new paper available via SSRN authored by Kimberly Thomas and Paul Reingold. Here is the abstract:

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free.  The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art — rooted in assessing the individual “character” of the potential parolee.

In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes in sentencing and parole practice over the years.  Since the development of the parole due process doctrine in the 1970s, two seismic shifts have occurred.  First, the constitutional protections provided at the initial sentencing have vastly increased.  Second, the parole process itself has been transformed by the move to evidence-based parole guidelines and the use of actuarial risk-assessment instruments as the norm in parole decision-making.

In this Article we document the changes in this under-scrutinized area and assert that the liberty interest in parole should more closely match the present-day legal account of the liberty interest that courts afford defendants at sentencing. 

June 2, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, June 01, 2017

Can football stars help get Ohio criminal justice reform over the goal line?

I am fond of stressing to students in my sentencing classes that a wide array of actors are involved in the development and application of sentencing law and policy.  And now this new local article, which prompts the question in the title of this post, will allow me to highlight in future classes that even famous football players can sometimes get in on the sentencing action.  Here are the basic details (with links from the original):

Three former Ohio State football players and one Cleveland Browns player are among those imploring the Ohio Senate to embrace a plan that will keep low-level offenders out of prison.  Former Buckeyes Malcolm Jenkins, Raekwon McMillan and Chris "Beanie" Wells have signed a letter to Ohio senators in support of the Targeted Community Alternatives to Prison plan.  So, too, has Ibraheim Campbell, a defensive back at Northwestern University who was drafted by the Cleveland Browns in the fourth round of the 2015 NFL draft.

"As NFL players who have personal connections to our broken justice system and have seen its impact on our own neighborhoods, we support justice reforms that strengthen families and restore communities," begins the letter.

The TCAP reforms, which are included in Gov. John Kasich's budget proposal, include eliminating mandatory prison sentences for minor parole violations and transferring low-level, non-violent to local jails or to drug treatment programs or other community-based alternatives.  A House of Representatives version of the budget includes significantly less money than what Kasich wants for TCAP reforms, said Holly Harris, executive director of the U.S. Justice Action Network....

She said the football players who signed the letter are not being paid. "They simply care about their communities," Harris said.

Campbell said during an interview with cleveland.com that he's had family members who have been subjected to injustices in the legal system and that reform is "something that I'm passionate about."

The governor's plan would mean an estimated 3,400 offenders a year would be jailed or supervised locally instead of being sent to prison. The House version would divert only 2,100 offenders, Harris said.

Not everyone supports the plan. John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said the plan would limit sentencing options. The County Commissioners Association of Ohio believes the plan has merit, but is concerned about the cost to counties and the timeline for the change.

The Ohio Department of Rehabilitation and Corrections has instituted pilot TCAP programs in eight counties - Clinton, Ross,, Medina, Lucas, Defiance, Henry, Williams and Fulton counties.

June 1, 2017 in Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (2)

Is the Ninth Circuit right in holding a federal sentencing judge cannot reject a jury special verdict finding on drug quantity?

The question in the title of this post is one that has been simmering in the Ninth Circuit and resulted in today's release of an amended opinion and a dissent from the denial of en banc review in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. June 1, 2017) (available here). Here is the heart of the amended opinion:    

[T]he record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances....

In our case, the government proposed the verdict form that set both a lower and an upper boundary for the amount of drugs involved.  Having proposed the language, the government now urges us to read the verdict form as “acquitt[ing] [Pimentel-Lopez] on the 500-gram amount,” with which he was initially charged.  But none of the choices offered by the verdict form were capable of capturing that view.  That may have been a blunder, but the jury answered the questions it was asked and so the die is cast: The government cannot disavow the finding that the jury makes as a result....

Nothing prevented the government from proffering [a different special verdict] form.  But, having proposed a form that required the jury to find that the drug quantity was less than 50 grams, the government locked itself out of the possibility of proving more than 50 grams at sentencing. It can easily avoid this pitfall in future cases....

Because the district court may not contradict an affirmative finding by the jury, we must vacate the sentence and remand with instructions that defendant be resentenced on the premise that his crimes involved less than 50 grams of drugs.

The dissent from the denial of en banc authored by Judge Graber (and joined by five other judges) gets started this way:

I respectfully dissent from the denial of rehearing en banc. The panel held that when a jury finds that the amount of drugs the government has proved, beyond a reasonable doubt, is attributable to a defendant falls within a specified range, the sentencing judge may not find by a preponderance of the evidence that the amount of drugs attributable to the defendant is higher than that range.  United States v. Pimentel-Lopez, 828 F.3d 1173, 1176–77 (9th Cir. 2016). That holding is wrong both as a matter of logic and as a matter of Supreme Court law, it has far-reaching consequences for the prosecution of drug crimes in our circuit, and it conflicts with holdings in other circuits.  For all those reasons, we should have reheard this case en banc.

As long as the Supreme Court's 1999 Watts ruling is still good law, I think the dissent here has the better of the legal argument (though post-Watts SCOTUS Sixth Amendment jurisprudence arguably undermines Watts).  But I also think Watts is a rotten decision that ought to be formally overruled.  For that reason, I would love to see the US Solicitor General seek Supreme Court review and then see the defendant suggest a reconsideration of Watts if the Justices care to take up the case.

June 1, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Lots of notable new reporting and commentary from The Marshall Project

The always terrific Marshall Project always has many great pieces that should be must-reads for sentencing fans.  Though I rarely have the time or ability to give shout-outs to all of the great work done there, the last few days have seen the posting of these pieces or reporting and commentary that all struck me as particularly blog-worthy:

Tuesday brought this Commentary, authored by Mark Osler, headlined "The Problem with the Justice Department: It’s a building full of prosecutors."

Wednesday brought this News piece, authored by Justin George, headlined "What Are Inmates Learning in Prison? Not Much: A new survey of 2,000 federal prisoners reveals big gaps in teaching reentry skills."

Thursday brought this Feature piece, authored by Anat Rubin, "Downloading a Nightmare: When autism, child pornography and the courts collide."

The last of these pieces is especially lengthy, but should be especially interesting for sentencing fans who think about when and how offender characteristics should or should not impact sentencing decisions. Here is a portion of the piece:

The “autism defense” was thrust into the spotlight by the case of Gary McKinnon, who, in 2002, from an apartment in London, broke into computers at the Army, Air Force, Navy, Department of Defense and NASA, searching for evidence of a UFO cover-up.  In fighting his extradition to the United States, McKinnon’s legal team argued that his crime was the result of his autistic compulsions.  “And then we started to see an increase in other individuals coming forth and claiming that Asperger's was causal in their need to — and their compulsion to — download child pornography,” said Chad Steel, who conducts digital forensics investigations for the federal government.

Steel, who also teaches digital forensics at George Mason University, wrote a paper to help forensic psychologists and others in law enforcement gather evidence to refute the central assumptions of the autism defense in child pornography investigations. “A frequent argument we get is that the person was unable to control their impulses, unable to know it was wrong.  There have been some cases where that’s absolutely been true,” he said.  “But when you read ‘this person has high-functioning autism, they didn’t know what they were doing’ — that’s not necessarily true.”  He said before the McKinnon case, he was seeing defendants who were likely autistic, even if they didn’t have an official diagnosis. But since McKinnon, the disability is more likely to take center stage.

The autism defense can be a double-edged sword in court.  Arguing that the defendant has the social and emotional maturity of a child can backfire.  Prosecutors can use that information to argue the defendant is likely to reoffend.  More often, parents whose lives have been defined by their child’s disability find that, in the eyes of the criminal justice system, their child doesn’t seem disabled enough.

The Marshall Project reached out to state and federal prosecutors with experience in child pornography cases.  With few exceptions they were unwilling to discuss cases involving autism.

For all child pornography defendants, outcomes depend largely on geography.  Some judges stick close to the federally-recommended sentences, while others have spoken out against the increased punishments. But for autistic defendants, the outcomes seem also to depend on how autism is explained to the court.  “In cases where judges and prosecutors have really been informed on all the dimensions in which Asperger’s applies, they got drastically reduced punishments,” [defense attorney Mark] Mahoney said. “If they get the right information, there’s a good chance — a much better chance than defense attorneys imagine — that prosecutors will understand that this is a population that just doesn’t have the dangerousness we associate with the behavior.”

In arguing for diversion, Mahoney focuses on what prison is like for an autistic person.  Many people with autism are unable to understand the hidden social structure of a prison environment.  They sometimes tell on others who break the rules.  They are eager to please and easily manipulated.  Their behavior can be misinterpreted by prison staff, and they are often placed in isolation, either as a form of punishment or for their own protection.

June 1, 2017 in Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, May 31, 2017

"Random If Not 'Rare'? The Eighth Amendment Weakness of Post-Miller Legislation"

The title of this post is the title of this new paper authored by Kimberly Thomas and available via SSRN. Here is the abstract:

First, this Article surveys the U.S. Supreme Court’s decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes.  Second, this Article examines the state legislative response to Miller v. Alabama, and scrutinizes it with the Court’s Eighth Amendment death penalty law — and the states’ responses to this case law — in mind.  This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of offenders to the most likely to have demonstrated “irreparable corruption,”; and 3) provide for meaningful appellate review, among other deficiencies. 

May 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Diving into the Pfaffian perspective on modern mass incarceration

Regular readers have seen me regularly highlight in this space the work of Professor John Pfaff and his important accounting of what accounts for modern mass incarceration (e.g., in this post a few years ago, I flagged prior posts chronicling nearly a decade of Pfaff's empirical insights and analysis).  These days Pfaff's recently published book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform," is helping to give his perspectives a wider airing.  And just today I noticed that two notable media sources are talking up and talking with Pfaff about his work:

From The Crime Report, a two-part Q&A:

From Vox: "Why you can’t blame mass incarceration on the war on drugs: The standard liberal narrative about mass incarceration gets a lot wrong. A new book breaks through the myths."

May 31, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

"Era of Mass Expansion: Why State Officials Should Fight Jail Growth"

Era_MassIncarceration_250The title of this post is the title of this notable new report from the Prison Policy Initiative. This PPI press release provide context and summary for the report's coverage:

State capitols share responsibility for growing jail populations, charges a new report by the Prison Policy Initiative. “Jails are ostensibly locally controlled, but the people held there are generally accused of violating state law, and all too often, state policymakers ignore jails,” argues the new report, Era of Mass Expansion: Why State Officials Should Fight Jail Growth.

The fact that jails are smaller than state prison systems and under local control has allowed state officials to avoid addressing the problems arising from jail policies and practices. “Reducing the number of people jailed has obvious benefits for individuals, but also helps states curb prison growth down the line,” says Joshua Aiken, report author and Policy Fellow at the Prison Policy Initiative.

Every year, 11 million people churn through local jail systems, mostly for minor violations of state law. Of the 720,000 people in jails on a given day, most have not been convicted of a crime and have either just been arrested or are too poor to make bail. And since the 1980s, crime has fallen but the number of people jailed has more than tripled.

The new report finds that the key driver of jail growth is not what one might expect – courtroom judges finding more people guilty and sentencing them to jail. In fact, the number of people serving jail sentences has actually fallen over the last 20 years. Instead, the report finds two troubling explanations for jail growth:

  • An increasing number of people held pre-trial.

  • Growing demand from federal and state agencies to rent cell space from local jails.

Recognizing the importance of state-specific data for policymakers and advocates, the report offers more than a hundred graphs that make possible state comparisons of jail trends. The report uncovers unique state problems that drive mass incarceration:

  • In some states, state officials have not utilized their ability to regulate the commercial bail industry, which has profited from the increased reliance on money bail and increased bail amounts. These trends have expanded the pre-trial population dramatically over time.

  • In other states, state lawmakers have expanded criminal codes, enabled overzealous prosecutors, and allowed police practices to play a paramount role in driving up jail populations, while underfunding pre-trial programs and alternatives to incarceration.

  • In 25 states, 10% or more of the people confined in local jails are being held for state or federal agencies, with some counties even adding capacity to meet the demand. This report is the first to be able to address the local jail population separately from the troubling issue of renting jail space.

Era of Mass Expansion draws particular attention to the states where the dubious practice of renting jail space to other authorities contributes most to jail growth. “Local sheriffs, especially in states like Louisiana and Kentucky, end up running a side business of incarcerating people for the state prison system or immigration authorities,” explains Aiken. “Renting out jail space often creates a financial incentive to expand jail facilities and keep more people behind bars.” The report finds that renting jail space for profit has contributed more to national jail growth since the 1980s than people who are being held by local authorities and who have actually been convicted of crimes.

For state policymakers, the report offers 10 specific recommendations to change how offenses are classified and treated by law enforcement, eliminate policies that criminalize poverty or create financial incentives for unnecessarily punitive practices, and monitor the upstream effects of local discretion. “There are plenty of things local officials can do to lower the jail population,” says Aiken. “With this report, I wanted to bring in state-level actors by showing how much of the solution is in their hands.”

May 31, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Tuesday, May 30, 2017

Notable new talk of notable new mandatory minimum sentences in Congress

The Hill has this notable new article headlined "GOP pushes new minimum sentencing laws."  Here are excerpts:

The debate over criminal justice reform has taken a head-spinning turn on Capitol Hill.  After months of debate over whether to curb mandatory minimum prison sentences, Republicans are now going in the opposite direction.

A new border security bill includes mandatory minimum sentences for certain immigrants who try to re-enter the country after they’ve already been deported and for people convicted of violent crimes against judges and police officers. The Hill reviewed a draft copy of the legislation, which is still being hammered out by Sen. John Cornyn (Texas), the No. 2 Senate Republican, and House Homeland Security Committee Chairman Michael McCaul (R-Texas).

The legislation includes “Kate’s law,” a measure named for Kathryn Steinle, a 32-year-old woman killed in 2015 by a felon who had been deported but returned to the United States. The law effectively creates a three-strike rule. Immigrants with prior aggravated felony convictions or two prior convictions for illegal re-entry would get a mandatory 5-year sentence.

President Trump repeatedly talked about Steinle during his presidential campaign as he backed policies cracking down on legal and illegal immigration.

The legislation also incorporates Cornyn’s Back the Blue Act, which creates a 30-year mandatory minimum sentence for killing a judge or federal law enforcement officer; a 10-year minimum for assault if the judge or law enforcement officer is seriously injured; a 20-year mandatory minimum if a deadly or dangerous weapon was used in the assault; and a 10-year minimum for fleeing after killing, attempting to kill or conspiring to kill a judge or law enforcement office. The law defines a law enforcement officer as any federally funded public safety officer or judicial officer for a public agency, including firefighters.

The new legislation represents a shift in the battle over mandatory minimum sentences and criminal justice reform more broadly. Over the last several years, momentum for eliminating mandatory sentencing laws gained steam with the backing not only of former President Barack Obama, but also from conservatives such as Sen. Mike Lee (R-Utah) and Charles and David Koch, the conservative GOP mega-donors and political heavyweights.

With the election of Trump, however, there are some signs that things are now moving in a different direction. Trump and Attorney General Jeff Sessions have vowed to empower law enforcement and crack down on illegal immigration....

Cornyn’s work on the new bill appears to represent another shift given his past work on the Sentencing Reform and Corrections Act. That legislation, which Sen. Dick Durbin (D-Ill.) spearheaded alongside Lee and Sen. Chuck Grassley (R-Iowa), called for reducing mandatory minimums for certain drug crimes. Cornyn was one of the first 15 original co-sponsors of that legislation, which never made it to the floor for a vote....

Cornyn said the new legislation is in draft form and still evolving. “We don’t have a final product,” he told The Hill on Thursday. “We’ve been sharing some language with the Department of Homeland Security and the House so there isn’t a final product. I know people like to comment on leaked draft documents, but I don’t find that very productive.”

When asked for his response to claims that provisions in his bill contradict his past support for reform, Cornyn said his bill is not a statement about mandatory minimums generally. “I’m not opposed to all mandatory minimums,” he said. “For example, felons carrying guns, I like the five-year mandatory minimum because it acts as a deterrent and saves lives.”...

Kevin Ring, president of Families Against Mandatory Minimums, said he understands Cornyn's reasoning for supporting minimums for certain crimes. “But just because you support some [mandatory minimums], doesn’t mean you should support the worst,” he said. “These are incredibly broad and expensive.”

Ring claims the provisions in Cornyn’s bill will cause more damage than any good Grassley's and Durbin’s reforms would have done in terms of reducing the prison population. “These are two of the biggest prison expanding proposals we’ve seen combined into one massive bill,” he said. “We can’t possibly build prisons fast enough to keep up with the influx we’d have.”

Without seeing the particulars of the new mandatory minimums (MMs) being developed by Senator Cornyn, I am not yet prepared to weigh in on just how much of an impact they could have on the federal prison population. I am hopeful that the US Sentencing Commission might have an opportunity to analyze the possible impact of any and all new MMs before they come up for a vote in any committees or before the full Congress.

If Senator Cornyn and other GOP members are strongly and aggressively committed to moving forward with new MMs for certain violent offenses and/or repeat immigration offenders, advocates of progressive reforms might be strategically wise to urge adding to any bill parallel provisions that reduce or eliminate MMs for certain nonviolent offenses and/or first-time offenders. Like many advocates of federal sentencing reform, I generally think all forms of mandatory minimums generally do more harm than good. But lengthy mandatory minimums for nonviolent and first offenders seem to me to be especially pernicious, and thus I would urge those troubled by the lemons of new proposed MMs try to find a way to make some sentencing reform lemonade.

May 30, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (5)

"What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment"

The title of this post is the title of this short paper by Suja Thomas now available via SSRN.  Here is the abstract:

Plea bargaining and summary judgment have contributed to the disappearance of the jury.  This short paper describes the "plea offer," "sentence" and "consensus" requirements -- three seemingly controversial but rational ways to restore the jury in our present system.

Here are a few paragraphs from the piece focused on plea bargaining:

Under the proposed plea offer requirement, if a criminal defendant does not accept the offered plea, then the prosecutor must try the criminal defendant on the charge in the proposed plea agreement along with the original charge.  In other circumstances, where the plea offer involved a charge reduction or sentencing bargaining, the defendant can present evidence of that plea offer at the trial for consideration by the jury.

Under the proposed sentence requirement, at trial, the jury would also hear information about the sentences that the defendant would receive if convicted of the different crimes and could convict based on these sentences.  Historically, juries possessed this information and could act on it.

By permitting the plea and sentence information to be presented at trial, the criminal defendant now has good reason to take a jury trial over the plea bargain.  The defendant can be found not guilty but, alternatively, if convicted, may receive the same sentence that the prosecutor offered in the plea agreement.

May 30, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Australia working on a novel travel ban for certain sex offenders ... to keep them in the country

This new AP article, Headlined "Australia plans to ban pedophiles from traveling overseas," reports on a kind of travel ban being discussed down under that is quite distinct from the one now being litigated here in the US.  Here are the details:

Australia plans to ban convicted pedophiles from traveling overseas in what the government said Tuesday is a world-first move to protect vulnerable children in Southeast Asia from exploitation.  Australian pedophiles are notorious for taking inexpensive vacations to nearby Southeast Asian and Pacific island countries to abuse children there.

Foreign Minister Julie Bishop said she would cancel the passports of around 20,000 pedophiles on the national child sex offender register under legislation that will be introduced to Parliament soon.  "There has been increasing community concern about sexual exploitation of vulnerable children and community concern is justified," she told reporters.

Almost 800 registered child sex offenders travelled overseas from Australia last year and about half went to Southeast Asian destinations, she said.  "There will be new legislation which will make Australia a world leader in protecting vulnerable children in our region from child sex tourism," Bishop said.

Justice Minister Michael Keenan said no country has such a travel ban.  He said 2,500 new convicted pedophiles would be added to the sex offender register each year and would also lose their passports.

The register contains 3,200 serious offenders who will be banned from travel for life.  Less serious offenders drop off the register after several years of complying with reporting conditions and would become eligible to have their passports renewed.

Independent Senator Derryn Hinch, who was molested as a child and was jailed twice as a radio broadcaster for naming pedophiles in contravention of court orders, took credit for the government initiative. Hinch said he had not known that convicted pedophiles were allowed to travel before he received a letter from Australian actress and children's rights campaigner Rachel Griffiths soon after he was elected to the Senate last year. "If we can take a passport from a bankrupt, why can't we stop our pedophiles from traveling to Myanmar?" Griffiths wrote. Under Australian law, a bankrupt person cannot travel overseas without a trustee's permission.

Hinch, who was involved in drafting the legislation, said temporary passports could be provided to pedophiles who need to travel for legitimate business or family reasons, and for pedophiles living overseas who need to return to Australia as their visas expire. "This will not apply to a teenager who has been caught sexting to his 15-year-old girlfriend," said Hinch, referring to sexual phone communications. "I know sometimes, I think unfairly, they go on registers, but we're trying to work it out so they don't," he added....

Australia has attempted to crack down on Australian child sex tourists by adding a new criminal offense punishable by up to 25 years in prison for Australian citizens or residents who molest children overseas.

May 30, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Consensus reigning (for now) as SCOTUS continues working through its criminal docket

Because the Supreme Court has already resolved all of its major sentencing cases, there is not all that much for sentencing fans to anticipate as the Justices wind down with final opinions over the final weeks of its Term.  But there are still plenty of criminal justice cases pending that may still lead to notable opinions, and two such rulings were handed down this morning.  As the title of this post highlights, what strikes me as notable about these new opinions is how the Justices were content to speak in one voice despite the potential contentiousness of the issues.  

In Esquivel-Quintana v. Sessions, No. 16-54 (S. Ct. May 30, 2017) (available here), Justice Thomas wrote the opinion for the unanimous Court and it starts this way:

The Immigration and Nationality Act (INA), 66 Stat. 163, as amended, provides that “[a]ny alien who is convicted of an aggravated felony after admission” to the United States may be removed from the country by the Attorney General. 8 U. S. C. §1227(a)(2)(A)(iii). One of the many crimes that constitutes an aggravated felony under the INA is “sexual abuse of a minor.” §1101(a)(43)(A). A conviction for sexual abuse of a minor is an aggravated felony regardless of whether it is for a “violation of Federal or State law.” §1101(a)(43). The INA does not expressly define sexual abuse of a minor.

We must decide whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA.  We hold that it does not.

In County of Los Angeles v. Mendez, No. 16-369 (S. Ct. May 30, 2017) (available here), Justice Alito wrote the opinion for the unanimous Court and it starts this way:

If law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force?  The Ninth Circuit has adopted a “provocation rule” that imposes liability in such a situation.

We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.

May 30, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, May 28, 2017

"No Indeterminate Sentencing Without Parole"

The title of this post is the title of this new paper available via SSRN authored by Kevin Morrow and Katherine Puzauskas. Here is the abstract:

This article looks critically at Arizona’s indeterminate sentencing system that survived after the elimination of parole in Arizona in 1993.  It begins by exploring the purpose and history of indeterminate sentencing and parole as well as its earliest constitutional challenges and eventual decline.  Next it compares two commonly confused forms of “release”: parole and executive clemency.  The article then examines the three types of defendants and the potential consequences if Arizona does not reestablish parole for its indeterminate sentences: death row defendants denied parole eligibility instructions at trial, defendants whose plea agreement includes parole and defendants sentenced to parole at trial.  Finally, the article argues that without parole, Arizona’s indeterminate sentences should be ruled unconstitutional.

May 28, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

DC sniper Lee Malvo to get resentencing thanks to Miller Eighth Amendment rule

As reported in this AP piece, a "federal judge on Friday tossed out two life sentences for one of Virginia's most notorious criminals, sniper Lee Boyd Malvo, and ordered Virginia courts to hold new sentencing hearings."  Here is why:

In his ruling, U.S. District Judge Raymond Jackson in Norfolk said Malvo is entitled to new sentencing hearings after the U.S. Supreme Court ruled that mandatory life sentences for juveniles are unconstitutional.

Malvo was 17 when he was arrested in 2002 for a series of shootings that killed 10 people and wounded three over a three-week span in Virginia, Maryland and the District of Columbia, causing widespread fear throughout the region. His accomplice, John Allen Muhammad, was executed in 2009.

Malvo also was sentenced to life in prison in Maryland for the murders that occurred there. But his lawyers have made an appeal on similar grounds in that state.  A hearing is scheduled in June.

Fairfax County Commonwealth's Attorney Ray Morrogh, who helped prosecute Malvo in 2003, said the Virginia attorney general can appeal Jackson's ruling.  If not, Morrogh said he would pursue another life sentence, saying he believes Malvo meets the criteria for a harsh sentence....

Michael Kelly, spokesman for Virginia Attorney General Mark Herring, said Friday evening that the office is "reviewing the decision and will do everything possible, including a possible appeal, to make sure this convicted mass murderer serves the life sentences that were originally imposed."  He also noted that the convictions themselves stand and emphasized that, even if Malvo gets a new sentencing hearing, he could still be resentenced to a life term....

Jackson, in his ruling, wrote that Malvo was entitled to a new sentencing hearing because the Supreme Court's ruling grants new rights to juveniles that Malvo didn't know he had when he agreed to the plea bargain.

The full 25-page opinion resolving Malvo's habeas petition is available at this link.

May 28, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Saturday, May 27, 2017

"What will happen to Pennsylvania's death penalty?"

The title of this post is the headline of this lengthy local article. Here are excerpts:

Five times a year, Pennsylvania corrections officials meet inside a white block masonry field house on the grounds of the prison near Penn State, and carry out a mock execution. They escort the “inmate” to the execution chamber. They strap that person onto the gurney. And then they simulate injecting a lethal dose of drugs into his body.

They perform this drill even though capital punishment in the commonwealth remains indefinitely on hold while government officials await a report, now years in the making, analyzing capital punishment’s history, effectiveness and cost in Pennsylvania.

The death sentence imposed last month on Eric Frein, the Poconos survivalist who killed a State Police trooper and injured another in September 2014, has reignited questions – and in some cases, criticism – about why the state has taken so long to decide whether to continue or stop, once and for all, executing criminals....

And state Sen. Scott Wagner, a York County Republican hoping to unseat the governor next year, has signaled it’s an issue he’ll press on the campaign trail. “I can assure you, when I’m governor, within the first 48 hours, I’ll be up there reversing that moratorium,” Wagner said in an interview Friday....

In Pennsylvania, ... Wolf, a Democrat, [imposed] a moratorium on the death penalty after taking office in early 2015. He argued the state should await the results of a long-awaited report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment before putting any more criminals to death. The report is expected to analyze more than a dozen factors involving the death penalty, such as cost, bias and effectiveness.

Wolf’s decision has drawn backlash from organizations like the Pennsylvania District Attorneys Association, which in 2015 called it “a misuse of [the governor’s] power” that ignores the law. The study itself has also come under fire, particularly for how long it’s taking to complete: It was ordered up by the state Senate in 2011 and was supposed to be completed by 2013....

Meanwhile, tax dollars still go toward keeping prisoners on death row. Each of the state’s 165 death row inmates — from Frein, who was sentenced last month, to Henry Fahy, who has been awaiting his punishment since November 1983 — cost Pennsylvania $10,000 more a year to house than a convict sentenced to life in prison. This does not account for the additional legal fees associated with capital cases: Some estimate prosecuting and litigating a capital murder case can cost up to $3 million more than a non-capital murder case....

“We have spent billions of dollars having a death penalty – including maintaining a death facility – and we have not executed someone who did not ask to be executed” since 1962, Sen. Daylin Leach, a Montgomery County Democrat and one of four members of a Senate task force awaiting the report, said last week. Leach is an unapologetic opponent of the death penalty. He has introduced bills to abolish it since 2009, arguing that it is “immoral and barbaric,” and calling the cost of capital punishment “troubling” – including the cost of maintaining the execution complex.

May 27, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Friday, May 26, 2017

Full Senate confirms Donald Trump's first circuit pick, Judge Amul Thapar, to Sixth Circuit

As Politico reports here, the "Senate voted 52-44 on Thursday to install Thapar, a favorite of Senate Majority Leader Mitch McConnell (R-Ky.), at the Cincinnati-based 6th U.S. Circuit Court of Appeals."  Here is more about this confirmation and additional judicial confirmation battles on the horizon:

The confirmation marked the first judicial nominee aside from now-Justice Neil Gorsuch to the Supreme Court for Trump, who came into office with an usually higher number of judicial vacancies....

In addition to Thapar, Trump has nominated 10 prospective judges to the lower courts. Two in particular could trigger a partisan battle over the so-called blue slip rule — a long-standing custom of the Senate Judiciary Committee that says the panel will not advance a judicial nominee without the consent of both the candidates’ home-state senators.

The committee’s chairman, Sen. Chuck Grassley (R-Iowa), said recently that the blue slip rule would be much stricter for district court judges that cover just a single state, rather than the more powerful circuit court nominees that span a broader region.  And other Republicans agree, despite comments earlier this month that signaled the GOP would stand by that tradition.  “I like the blue slip tradition as it pertains to district court judges, but I never thought it applies to circuit court,” said Sen. Jeff Flake (R-Ariz.), a member of the Judiciary Committee.

Democrats have already started fighting back, arguing that the Judiciary Committee strictly abided by the blue slip rule under President Barack Obama and that Trump should be treated the same way.  Under Obama, 17 judicial nominees — 11 for the district court and six for the circuit courts — never advanced because a blue slip wasn’t returned. One of the unreturned blue slips was for the vacant 6th Circuit seat that will be filled by Thapar after his confirmation on Thursday....

Thapar, like Gorsuch before him, was drawn from a list of potential Supreme Court nominees released by Trump during his campaign with input from the conservative Federalist Society and Heritage Foundation.

As I noted in this post when Judge Thapar was nominated earlier this year, I have come to know Judge Thapar personally and I think very highly of him (in part because he asked me to file an amicus brief in one of his highest-profile sentencing cases).  I am already excited to see his coming opinions in criminal justices cases for the Sixth Circuit.  And Judge Thapar's nomination and reasonably smooth confirmation now perhaps serves to make him a front-runner for any coming Supreme Court opening. 

May 26, 2017 in Who Sentences? | Permalink | Comments (5)

Thursday, May 25, 2017

"Capital Punishment and the Courts"

The title of this post is the title of this commentary/book review authored by Jonathan Mitchell and available via SSRN. Here is the abstract:

In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence.  They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972 — leaving us with a regime that imposes costly, arcane, and highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking.  The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy.  And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.

Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified.  The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations.  It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty.  Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency.  Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board — or at least as applied to specified categories of offenders — unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.”  The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their thorough and comprehensive book.

May 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Deep dive into the deep challenges of sentencing different types of child sex offenders

The Shreveport Times has this detailed five-part series, called Sinister Web, which looks into the modern digital world of child pornography. One article in the series examines case-processing and sentencing issues and challenges in this sad space under the headlined "Different outcomes for child rapists, child pornographers."  Here are excerpts:

Prosecutors face specific challenges when handling contact child sexual abuse cases, which often result in less prison time for those who sexually assault children than for those who possessed or distributed child pornography via the internet.

The conviction rate in U.S. child pornography possession cases is 97 percent, according to the Crimes Against Children Research Center and the Bureau of Justice Statistics. The conviction rate is much lower for offenders who commit hands-on sex crimes against children: 46 percent....

Experts cite multiple reasons for the disparities in sentencing and conviction rates.  One is that young children often are difficult witnesses because they include "fantastical" elements in their testimonies or they cannot give detailed, accurate information to investigators, said Dr. Sharon Cooper. Cooper, a forensic pediatrician who has provided expert testimony in more than 300 cases involving internet and child sexual abuse crimes, also said that forensic interviews of children may not show any physical evidence of abuse, as many children wait years to disclose.

But child sexual abuse images “speak for themselves,” said Lt. Chad Gremillion, a detective with the special victims unit of the Louisiana State Police. “You can’t deny what they are, what the focal point is, the abuse of a video where a four-year-old is being forced to provide oral sex to a male in a home,” Gremillion said.

The need for child victims of sexual abuse to testify at trial also is an issue.  Defense attorneys surveyed by The Times said they often encourage clients to plead guilty to reduced charges to avoid a trial and in exchange for less prison time. Prosecutors and victims’ families often accept those pleas to prevent further trauma to the children involved, said Caddo Parish Assistant District Attorney Monique Metoyer.  Many young children simply are not emotionally equipped to testify in an open courtroom, Metoyer said.... Another difficulty in prosecuting child sexual abuse cases is that victims often know their abusers.  

Another way some say the law is outdated: Those who upload child sexual abuse images to the internet, where they can be accessed by anyone in the world, can be charged under federal law with transporting materials across state lines — even though all they did was click a button on a home computer, said Katherine Gilmer, also a Shreveport defense attorney.  

As happened with Jesse Ward, the police officer who was caught after sharing a single image depicting child sexual abuse with an online undercover agent.  Law enforcement officers also found "more than ten electronic images" of child pornography on a computer hard drive in his home in McDuffie County, Georgia, according to court documents.  Ward initially was charged with three counts: possession, receipt and transportation of child pornography. Two of Ward's charges — receipt and possession of child pornography — were dropped upon the conviction of the third, more serious charge, transporting child pornography.  The transportation charge applied because he had uploaded the image to a network from which users in other states could download it — thus crossing state lines, a distinction that gained his crime federal status.  Ward was sentenced to 20 years.

But those who possess, and do not share, child sexual abuse images also often face stiffer sentences than those who commit contact crimes against children.  Melville resident Russell Guillory was sentenced to 10 years in prison in 2016 for possessing child pornography. The Lafayette man's collection included 75 videos and six images of child sexual abuse — including images depicting penetration of a 2-year-old child.

A judge, in imposing sentence, said that the materials were “especially heinous” and that the “very young children” in the materials “were not in a position of sufficient strength to resist the sexual abuse,” according to court documents. In a letter to the Times, written in April, Guillory said his sentence did not match his crime.  “Even good people make mistakes, but mistakes should never make a person,” Guillory wrote.  “We all have moments of weakness and make mistakes.”...

Unlike many contact sex crimes, child pornography possession and distribution charges carry mandatory minimum sentences, while judges in child sexual contact crimes have more discretion at sentencing. Child pornography crimes carry a mandatory five to 20 years of prison time....

Peter Flowers, a defense attorney in Shreveport, said the law has not been updated to reflect changes brought by the internet and digital photography. He voiced frustration with how the criminal justice system handles those convicted of child pornography offenses, especially because of what he termed “outdated” enhancements. “It used to be that if you amassed 500 pictures, you really had to work hard. Now, it’s just pressing a button. It’s not the same thing,” he said.

Flowers also said undercover stings — in which agents pose online as underage children and then arrest adults who initiate sexual conversations — catch only the “low-hanging fruit.”

“There are some serious child pornographers out in the deep, dark web, and that’s where the real danger is,” he said. “The real deal is much deeper.”

Regardless of prison time, all sex crimes in Louisiana require sex offender registration, which can provide a degree of closure for child victims and their families or destroy an offender’s life forever, depending on whom you talk to. Flowers said registration is a “very serious thing” and “not just about having a sign put in your yard or having a strip across your driver’s license.”  Offenders can’t pick their own children up from school.  Those who live within 1,000 feet of a school, church or a park must sell their homes and move, Flowers said....

Law enforcement officers, for the most part, expressed little sympathy for those convicted of possessing or distributing child pornography.... Corey Bourgeois, lead investigator at the Louisiana Attorney General’s cyber crime lab in Baton Rouge, said the state sentencing guidelines fit the crimes. “You know how you got that image?  Somebody was abused to get that image,” he said.  Metoyer said those who access child sexual abuse images chose to do so. “Even though we’re looking at images of children and you may not see the children in the room with you, these are real children,” Metoyer said.  “This has impacted them for the rest of their lives.”

May 25, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15)

"The portal itself is like a video game for criminal justice nerds."

The title of this post is a sentence that got me (too) excited about this new criminal justice resource called "Measure for Justice."  The sentence is found in this Marshall Project article, fully headlined "The New Tool That Could Revolutionize How We Measure Justice: A small nonprofit gathers criminal justice statistics, one county at a time." Here are excerpts from the article describing what is revolutionary about Measures for Justice:

The enormity of the country’s criminal justice system — 15,000 state and local courts, 18,000 local law enforcement agencies, more than two million prisoners — looks even more daunting when you consider how little we know about what is actually going on in there. Want to know who we prosecute and why? Good luck. Curious about how many people are charged with misdemeanors each year? Can’t tell you. How about how many people reoffend after prison? We don’t really know that, either.

In an age when everything is measured — when data determines the television we watch, the clothes we buy and the posts we see on Facebook — the justice system is a disturbing exception. Agencies exist in silos, and their data stays with them. Instead, we make policy based on anecdote, heavily filtered through a political lens.

This week the nonprofit Measures for Justice is launching an online tool meant to shine a high beam into these dark corners. It is gathering numbers from key criminal justice players — prosecutors offices, public defenders, courts, probation departments — in each of America’s more than 3,000 counties. Staffers clean the data, assemble it in an apples-to-apples format, use it to answer a standard set of basic questions, and make the results free and easy to access and understand.

It’s the kind of task you’d expect a federal agency like the Bureau of Justice Statistics, which has an average annual budget of $97 million, to take on. Instead, the 22 people at Measures for Justice’s Rochester, N.Y., offices are doing the work themselves on an annual budget of $4.6 million, donated mostly from foundations. So far they’ve tackled six states: Washington, Utah, Wisconsin, Pennsylvania, North Carolina and Florida, gathering most of the numbers one county at a time. Together, these make up 10 percent of the nation’s counties. The team chose those six states for their geographical diversity and — to ease the data gathering in the project’s early phases — because they had unified statewide court databases. The hope is to complete 15 more states by 2020, while updating the statistics from the first six states every two years.

“We’re giving people data they’ve never had access to before,” says Amy Bach, the founder and executive director of Measures for Justice. “We’re telling them stories about their communities and their counties that they’ve never heard before.” The project, which has as its motto “you can’t change what you can’t see,” centers on 32 “core measures”: yardsticks to determine how well local criminal justice systems are working. How often do people plead guilty without a lawyer? How often do prosecutors dismiss charges? How long do people have to wait for a court hearing? Users can also slice the answers to these questions in different ways, using “companion measures” such as race and political affiliation.

The portal itself is like a video game for criminal justice nerds. Users can compare counties, click on interactive maps and bar charts, and layer one data point upon another. The interface is clean and easy to use, if a little wonky. (The organization wants to present data in context, so each infographic is followed by a screen full of fine print and footnotes.) It’s meant for everyone — not just professors and policy wonks.

May 25, 2017 in Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (0)

Wednesday, May 24, 2017

American Law Institute officially approves revised Model Penal Code: Sentencing provisions

This afternoon I received an email with this exciting news: "Members of the American Law Institute (ALI) voted at their 2017 Annual Meeting in Philadelphia on Wednesday, May 24th to approve the Proposed Final Draft of the Model Penal Code: Sentencing." Here is the context via the email of what I think is a very big deal after a very long process:

Under Reporter Kevin R. Reitz (Co-Director of the Robina Institute of Criminal Law and Criminal Justice and James Annenberg La Vea Land Grant Chair in Criminal Procedure Law at the University of Minnesota Law School), and Associate Reporter Cecelia M. Klingele (Associate Professor of Law, University of Wisconsin, Madison), the project reexamines the sentencing provisions of the 1962 Model Penal Code in light of the many changes in sentencing philosophy and practice that have taken place since its original publication.

The Model Penal Code: Sentencing project provides guidance on some of the most important issues that courts, corrections systems, and policymakers are facing today, including the general purposes of the sentencing system; rules governing sentence severity — including sentences of incarceration, community supervision, and economic penalties; the elimination of mandatory minimum penalties; mechanisms for combating racial and ethnic disparities in punishment; instruments of prison population control; victims’ rights in the sentencing process; the sentencing of juvenile offenders in adult courts; the creation of judicial powers to review many collateral consequences of conviction; and many issues having to do with judicial sentencing discretion, sentencing commissions, sentencing guidelines, and appellate sentence review.

“As a matter of recent history in this country, we’re at quite an important moment, where the conversation and political attitudes towards criminal justice policy and sentencing policy have been shifting dramatically at the state level,” said Professor Reitz.  “Despite current uncertainties in the federal government, legislators, policymakers, and lawmakers in state and local criminal justice systems are searching for workable solutions to problems of mass punitiveness that have grown since the 1970s.  This moment in history is particularly fortuitous for the Model Penal Code because we are arriving at the point of completion just as this new or changed nationwide debate is occurring. For lawmakers, judges, and corrections leaders, we can provide the tools they will need to create important and lasting sentencing reforms in their jurisdictions.”

May 24, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

"Ambition and Fruition in Federal Criminal Law: A Case Study"

The title of this post is the title of this interesting and timely new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law — who ultimately gets prosecuted, and for what conduct — diverge, sometimes markedly, from lawmakers’ and enforcers’ aims?  This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders — large scale traffickers, violent dealers, and the worst recidivists — yet has imprisoned large numbers of offenders outside these categories.  In this respect, federal drug enforcement is a case study in the ambition/fruition divide.

Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise.  These pressures and incentives operate along three vectors: between the enforcers and the enforced; across and within federal enforcement institutions; and between federal and local enforcers.  Together, they create a system that stymies focus on the most culpable even as it makes apprehending them a principal aim.  This insight carries important implications for reform, both within drug enforcement and outside it.  Changing who, and how many, we prosecute requires attention not only to laws, but also the lower-visibility spaces in which enforcement patterns take root.  In the new political landscape, these lower-visibility spaces are federal criminal justice reform’s next frontier.

May 24, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, May 23, 2017

"How Far Can Jeff Sessions Take His Crime War?"

The question in the title of this post is the headline of this astute New Republic piece by David Dagan that provides lots of useful context, old and new, for the work and rhetoric coming from AG Jeff Sessions and Prez Donald Trump.  Here are some extended excerpts (with emphasis in the original):

In fact, the last two years have seen worrying increases in the nation’s violent-crime rate, and some American cities have developed a full-blown homicide crisis.  That is a serious problem anybody who cares about criminal justice should be watching closely.  But it does not justify the Sessions-Trump imagery of marauding gangsters terrorizing an entire nation.  Overall, the United States today remains a much safer country than it was 30 years ago.

So the attorney general of 2017 faces a dramatically different climate than the unknown Alabama prosecutor of 1982. Even conservatives are now leading criminal-justice-reform efforts in several red states.  But reformers must keep their guard up.  Because for Sessions, crime is an inherently polarizing issue — and that’s the best news for Republicans who want to crack down.  “We should relish the fact that there will be opposition,” Sessions wrote back in 1982. “We want opposition because it defines who we are and who they are. The bigger the confrontation, the clearer the definition.”...

Sentences will get longer as a result of the May 10 charging memorandum.  But the order may have a greater effect that isn’t so obvious: It may result in not only longer sentences, but more cases being brought, period.  In the last five years of the Obama administration, the number of defendants charged in federal cases plummeted from about 103,000 to about 77,500, the lowest number since 1998.  A number of factors drove that decline, including a hiring freeze that reduced DOJ’s bandwidth.  But John Walsh, who served as U.S. Attorney for Colorado in the Obama administration, says Holder’s policy requiring prosecutors to justify the use of mandatory minimum sentences was also a contributing factor: The rule forced prosecutors to hone in on the worst offenders.  That is now history....

Fortunately, the federal government has limited influence over the calamity of mass incarceration.  The feds do operate the nation’s largest prison system, but that still accounts for only 10.5 percent of people incarcerated in the U.S.  Otherwise, it’s up to the states (with roughly 1.2 million prisoners) and counties (roughly 600,000 jail inmates.)

The only way that Sessions and Trump can really change a political culture that has moved away from the tough-on-crime consensus of the 1980s and 1990s is to lead a public law and order crusade.  The campaign started it, but there’s a long way to go — and a lot of fear-mongering to do — to shift the tide.  Democrats now largely condemn the prison policies they once went along with.  Republicans are more circumspect, but the conservative movement for prison reform has achieved impressive incarceration reductions in some bright-red states.

Despite fears that state and local politicians would be scared off by the tough talk coming out of Washington, the momentum for reform has continued through the beginning of the Trump presidency. “So far, we haven’t seen much of an impact at all,” said Adam Gelb, who runs a unit of the Pew Charitable Trusts that advises states on criminal-justice reform.  “States have built up a strong head of steam, with broad support across the political spectrum for policies that work better and cost less.”

The kinds of states you’d imagine getting behind Sessions’s new “law and order” campaign are actually among those getting behind progressive reforms.  Louisiana is on track to pass a plan that could cut its prison population 10 percent over a decade — probably not enough to shed its status as the nation’s leading per-capita jailer, but significant progress nonetheless.  Utah approved a big juvenile-justice reform in April.  The same month, North Dakota legislators voted to favor probation over prison for low-level felonies, among other changes.  Most surprising, Alabama is poised to restore voting rights for thousands of felons.

The America of 2017 is much less hospitable to a crime war than the America of 1982.  The fact that, despite recent increases, crime remains way down makes it harder to stir up panic than it was back in the 1980s and 1990s.  The rural dimension of the opioid epidemic has contributed to a new understanding of drugs as a problem of public health. Years of activism and aggressive reporting on the ravages of mass incarceration are also beginning to register in the public conscience, especially among millennials to whom the excesses of the past look simply bizarre....

But as Sessions realized years ago, the mix of race, drugs, and crime is a powerful force in American politics.  The fact that Sessions’s sentencing memo was met with deafening silence from Republican members of Congress suggests that spines on Capitol Hill remain as gelatinous on this issue as any other involving the administration.  The onus is not entirely on conservatives, though.  Liberals should do more than simply bat down Sessions’s inaccurate portrayal of the whole country as being in the grips of a violent-crime meltdown.  They should emphasize that the recent uptick in violence is worrying, that some American cities are indeed having a crisis-level problem — and that Sessions has absolutely no idea what to do about this.

We know much more than we used to about fighting crime.  Prisons surely play a role, but we’ve long ago reached the point of diminishing returns from warehousing people.  If Donald Trump cares about Chicago as much as he tweets about it, liberals should argue, then rather than blowing the city off, he would deploy federal money to support policing and violence-prevention programs that work, there and in other high-homicide towns.

If reformers play their cards right, Sessions may ultimately find that the crime war whose terms he understood so well as a young man has been redefined in ways he can no longer grasp.

May 23, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Monday, May 22, 2017

"Sentencing Synthetic Cannabinoid Offenders: 'No Cognizable Basis'"

The title of this post is the title of this short notable piece by Brad Gershel now available via SSRN. Here is the abstract:

Application of the United States Sentencing Commission Guidelines (“Guidelines”) to smokable synthetic cannabinoids (“SSC”) produces distinct but familiar inequities in the criminal justice system.  Calling to mind the crack-to-cocaine disparity that belied the rights of countless defendants, the federal government has yet to rectify a Guidelines rule that was promulgated without scientific basis or empirical support.  As prosecutions for SSC accelerate — and in the absence of swift and meaningful reform — federal courts will continue to sentence defendants via a base-offense range that was never justified.

May 22, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

California struggles over whether all sex offenders can be excluded from Prop 57 parole reforms aimed at non-violent offenders

This new Los Angeles Times article, headlined "Debate over sex offenders moves to court as California undertakes prison parole overhaul," provides an updated on the legal and policy issues surrounding sex offenders in the wake of a California ballot initiative intended to help non-violent offenders get an earlier chance for parole. Here are excerpts:

Los Angeles-based nonprofit is claiming California prison officials have undermined last fall’s ballot measure to overhaul the state’s parole process by excluding sex offenders from consideration for early release. The Alliance for Constitutional Sex Offense Laws, which advocates for the rights of those convicted of sex crimes and their families, says the exemption — written into newly released guidelines to implement Proposition 57 — “impermissibly restricts and impairs the scope” of the initiative.

Those regulations were released in March and won initial approval from state regulators a month later. But the original ballot measure did not exclude inmates convicted of sex crimes from the chance of getting an earlier hearing before the state parole board.

The group filed the lawsuit in late April against the state Department of Corrections and Rehabilitation and its director, Scott Kernan. It argues the new rules are unconstitutional and it asks a judge to order corrections officials to withdraw and repeal them, according to the complaint filed in Sacramento County.

“We want the benefits of Proposition 57 to be provided to people who have been convicted of ‘non-violent’ sex offenses,” said attorney Janice Bellucci, who is representing the alliance and an inmate who brought the case forward. “It is a basic rule of law that regulations cannot be broader than the law that they are implementing.”...

Debate over the treatment of sex offenders under Proposition 57 has simmered since last fall’s campaign season. But at that point, the outcry came from law enforcement officials and prosecutors who argued they did not want to see the ballot measure’s benefits extended to rapists and child molesters.

The sweeping initiative, approved by 65% of voters, gave new power to the State Board of Parole Hearings to grant early release to prisoners whose primary sentences are for crimes not designated as “violent” under California law. It also provided new ways for all inmates to earn time credits toward their sentences for good behavior and for enrolling in certain career, rehabilitation and education programs.

Opponents of Proposition 57 warned that the list of crimes under the violent felony penal code was short and porous, inspiring efforts in the Legislature this session to expand the definition of what constitutes a violent crime under state law. In his January budget proposal, Gov. Jerry Brown attempted to address those concerns, directing the state corrections department to exclude all sex offenders from early parole consideration. The department’s new parole guidelines are expected to receive final approval in the fall after a public comment period. Changes to how inmates can earn credits, which can help reduce their sentences, are already underway, while the new parole eligibility requirements won’t take effect until July.

But the advocacy group that filed the lawsuit wants the state agency to revise its rules. It contends that there was plenty of public debate over sex offenders during the Proposition 57 campaign — and that even then, voters passed the measure.... The lawsuit alleges the new exclusion applies to a whole class of nonviolent offenders, including people charged with crimes where there was no sexual contact with a victim.

As of Dec. 31, the number of inmates in California prisons who would have to register as sex offenders upon release stood at 22,455, less than 20% of the population housed at state prisons. Nearly 18,000 were designated as “violent” offenders, while more than 4,521 were considered “nonviolent,” according to state corrections officials.

Bellucci said those cases could include a diverse group of offenders. In theory, she said, the new regulations could unfairly penalize an 18-year-old convicted of public indecency for streaking in high school, or a 16-year-old sentenced for child pornography after distributing nude photos of herself. “Anybody who has been convicted of a violent offense, like rape, Prop. 57 doesn’t apply to them,” Bellucci said. “We are talking about nonviolent offenses, which includes these non-contact offenses.”

I would be shocked to learn that California has any teenage streakers or sexters imprisoned for lengthy periods now hoping to get early parole. I suspect the more realistic example of the sex offender who might claim to be non-violent and seek early parole are California variations on offenders like Jared Fogle or Anthony Weiner, i.e., older men involved with child pornography or perhaps other kinds of sexual activity with underage persons.  It will be interesting to see if the California courts allow of prohibit these kinds of offenders from being excluded from the reforms of Prop 57.

May 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, May 21, 2017

"Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses"

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

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem.  On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees.  The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in jail merely because they are unable to afford bail.

Criminal justice debt, also known as legal financial obligations (LFOs), impacts not only those incarcerated but also millions of others who receive economic sanctions for low-level offenses, including misdemeanors and ordinance violations. LFOs, which include bail, fines, and fees, are imposed at every stage in the justice process, including pre-conviction, sentencing, incarceration, and post-release supervision.

For those who are unable to pay criminal justice debt, “poverty penalties” are often added in the form of charges for interest, payment plans, late payments, and collection.  As incarceration rates and local budgetary concerns have increased, so too has the imposition of LFOs. Moreover, while authorities are trying to reduce incarceration, criminal justice debt may become an even greater concern, as one popular alternative is decriminalization and the imposition of monetary charges.

Often the financial charges are unrelated to the traditional notions of punishment or protection of public safety and instead, reflect a desire to maximize revenue collection. Many municipalities outsource services to private probation companies and collectors, which are often unsupervised and use collection procedures not authorized for private parties.  Moreover, new technologies allow for additional collection abuses.

To date, states and municipalities have been ineffective in preventing abuses associated with criminal justice debt. Relying on the approach used for consumer debt collection, I propose a federal solution.  The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) provide the foundation for a federal framework for addressing problems with the collection of consumer debts. I contend that the justifications that supported the federal statutory and administrative solution for consumer debts are at least as significant, if not greater, for a similar framework to combat abusive criminal justice debt practices.

Not only do individuals with criminal justice debt encounter the same abuses and consequences that consumer debtors face — including harassment, negative credit reports, and the adverse impact on financing and employment prospects — but they also face denial of welfare benefits, suspension of driver’s’ licenses, arrest, and incarceration.  In practice, the imposition of criminal justice debt reflects actual discrimination and creates distrust in the system. Accordingly, I advocate the adoption of a federal act and the use of the DOJ to coordinate enforcement and outreach activities to attack abuses in the collection of criminal justice debt.

May 21, 2017 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Reactions to Sessions Memo on DOJ charging/sentencing policies keep on coming

I highlighted in this post and this post some of the early reactions to the new charging and sentencing memorandum released earlier this month by Attorney General Jeff Sessions (basics here). Reactions in various forms and formats just keep on coming, so here I will highlight a few more from various authors and outlets that struck me as worth noting:

From CNN here, "State AGs to Sessions: Rescind criminal charging guidance"

From Crime & Consequences here, "Restoration of Honesty: Jeff Sessions' Charging Instructions"

From The Crime Report here, "Memo to Sessions: Why Treatment for Drug Addiction Makes More Sense Than Prison"

From The Federalist here, "Sessions Has Neither The Authority Nor The Evidence To Pursue A New Drug War"

From Law360 here, "Sessions Memo Could Create Friction In Plea Negotiations"

From the New York Daily News here, "The true toughness Jeff Sessions must show"

From the New York Law Journal here, "The Sessions Memo: Back to the Past?"

Prior recent related posts: 

UPDATE: A helpful reader pointed out this Washington Post commentary from a former US Attorney headlined "Jeff Sessions to federal prosecutors: I don’t trust you." It starts this way:

Last week Attorney General Jeff Sessions announced policy changes directing federal prosecutors to charge people suspected of crime with the “most serious, readily provable offense” available in every federal case.  In doing so, he promised that prosecutors would be “un-handcuffed and not micromanaged from Washington.”

That justification is laughable.  In actuality, the announcement demonstrates a stunning lack of faith in the decisions of line-level prosecutors.  It imposes — rather than removes — the handcuffs for prosecutors, returning us to the policy of the 1990s and 2000s, when incarceration and corrections spending spiked without a measurable impact on drug use or public safety.

May 21, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, May 19, 2017

US Commission on Civil Rights conducting big hearing on collateral consequences

As detailed in this official meeting notice, the United States Commission on Civil Rights is having a big public "briefing" focused on "Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities." The event in DC begins at 9:30 am and will be live-streamed at this link. Here is the scheduled run-down of the panels and speakers:

Panel One: Overview of Collateral Consequences of Incarceration:

National experts provide an overview of the long-lasting effects of incarceration after a prison sentence has ended. Panelists will discuss how these continuing barriers impact recidivism and particular communities. Speakers’ Remarks:

  • Margaret Love, Executive Director, Collateral Consequences Resource Center
  • Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
  • Traci Burch, Associate Professor of Political Science, Northwestern University
  • John Malcolm, Vice President of the Institute for Constitutional Government, Heritage Foundation
  • Naomi Goldberg, Policy and Research Director, Movement Advancement Project

Panel Two: Access to Civil Participation after Incarceration:

National experts and professors discuss the barriers to civil participation following incarceration, specifically focusing on the right to vote and jury participation. Speakers’ Remarks:

  • Marc Mauer, Executive Director, The Sentencing Project
  • Hans von Spakovsky, Senior Legal Fellow, Meese Center for Legal and Judicial Studies, Heritage Foundation
  • James Binnall, Assistant Professor of Law, Criminology, and Criminal Justice, California State University at Long Beach
  • Anna Roberts, Assistant Professor, Seattle University School of Law and Faculty Fellow, Fred T. Korematsu Center for Law and Equality

Panel Three: Access to Self-Sufficiency and Meeting Basic Needs:

National experts discuss the barriers to self-sufficiency and meeting basic needs after incarceration. Panelists will focus on employment, housing and access to public benefits. Speakers’ Remarks:

  • Maurice Emsellem, Program Director, National Employment Law Project
  • Kate Walz, Director of Housing Justice, Sargent Shriver National Center on Poverty Law
  • Amy Hirsch, Managing Attorney, North Philadelphia Law Center; Welfare, Aging and Disabilities Units, Community Legal Services
  • Marc Levin, Director, Center for Effective Justice; Texas Public Policy Foundation; Right on Crime

May 19, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Thursday, May 18, 2017

Highlighting sentencing reform's momentum in the states despite prosecutorial change of course by US Attorney General

The New York Times has this extended new article detailing recent state sentencing reform realities that stand in contrast to the decision last week by Attorney General Sessions to promulgate tougher charging and sentencing guidelines.  The article is headlined "States Trim Penalties and Prison Rolls, Even as Sessions Gets Tough," and here are excerpts:

Louisiana has the nation’s highest incarceration rate.  But this week, Gov. John Bel Edwards struck a deal to reduce sentences and the prison population, saving millions annually. If lawmakers approve the changes, Louisiana will be following more than 30 states, including Georgia, Texas and South Carolina, that have already limited sentences, expanded alternatives to incarceration such as drug treatment, or otherwise reduced the reach and cost of the criminal justice system.  Many of those states say they have saved money while crime rates have stayed low.

In Washington, though, the nation’s top law enforcement officer, Attorney General Jeff Sessions, has charted the opposite course.  He announced last week that federal prosecutors should aim to put more people in prison for longer periods, adopting the sort of mass-incarceration strategy that helped flood prisons during the war on drugs in the 1980s and 1990s.  His move — which he said would promote consistency and respect for the law — alarmed critics who feared that the Trump administration was embracing failed, even racist, policies.

Even more, Mr. Sessions’s approach conflicted with one of the few major points of bipartisan national agreement over the past decade, that criminal justice could be more effective by becoming less punitive to low-level offenders, treating root causes of crime like drug addiction, and reserving more resources to go after serious, violent criminals.

But if Mr. Sessions’s appointment has dampened the hopes of those wishing for congressional action to reduce incarceration, advocates say it has had little effect on state efforts. “There was a lot of speculation that with the rhetoric from the presidential campaign, there would be a drop in momentum, but we haven’t seen that,” said Marc A. Levin, the policy director for Right on Crime, a group at the fore of conservative efforts to reduce incarceration rates.  “There have been so many successes in the last several years, particularly in conservative states, that it continues to fuel other states to act,” Mr. Levin said.

The consensus began with a cold, objective judgment that taxpayers were not getting a good return on investment for money spent on prisons.  Bloated corrections budgets took money that could be spent on schools, roads or tax breaks, while many of those who went through the prison system went on to offend again.  Among Republicans and Democrats alike, concern also grew that too many nonviolent criminals who were no threat to society were being imprisoned and given little chance to reform and re-enter mainstream society....

It has not hurt that early adopters included tough-on-crime red states like Texas, which began passing major criminal justice revisions in 2003.  “It was a Nixon-goes-to-China thing, and was really helpful in letting other states know, ‘The water is warm; you can do this,’” Mr. Ring said.  In contrast, he added, Mr. Sessions’s directive flies in the face of state-level successes. “We’re going to double down on an approach everybody else has walked away from,” is how Mr. Ring characterized it.

So far this year, Michigan and Georgia, which previously rewrote their criminal justice laws, have already approved a new round of changes.  In Oklahoma, where Mr. Trump handily carried every county in November, another vote was also popular: Residents approved by a 16 percentage point margin a ballot proposal calling on legislators to curb prison rolls and downgrade numerous drug and property crimes to misdemeanors from felonies.

“Basically, in Oklahoma we’re just warehousing people in prison, and we’re not trying to rehabilitate anybody because of budget constraints,” said Bobby Cleveland, a Republican state representative who is chairman of the Public Safety Committee. Oklahoma has the nation’s No. 2 incarceration rate. The state is now considering how to heed the voters’ advice, including debating major criminal justice changes. The effort faces opposition from district attorneys who have slowed some pieces of legislation, but the proposals have the firm backing of Gov. Mary Fallin, a Republican. Supporters acknowledge that it may take a few tries to succeed. “Texas didn’t do it in one year, either,” Representative Cleveland said.

Louisiana is also moving toward change. On Tuesday, Governor Edwards, a Democrat who has made reducing the prison population a centerpiece of his administration, announced that he had reached an agreement with the state’s politically powerful district attorneys to revise criminal justice laws. The deal, which still faces a vote in the Legislature, would reduce penalties for minor drug possession, give judges more power to sentence people to probation instead of prison, limit how many theft crimes qualify as felonies, and reduce mandatory minimum sentences for a number of crimes.

Last year, it also seemed there was a fair chance that even Congress would get in on the action with a bipartisan bill to reduce mandatory minimum sentences for some drug crimes. The bill never got a vote on the floor, and some feared that the appointment of Mr. Sessions, who opposed the legislation as a senator, was a sign that President Trump would never support it. But in March, Mr. Trump’s son-in-law and senior adviser, Jared Kushner, met with pro-reform senators, including Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee, signaling he considered the issue a priority....

While Mr. Sessions has warned of what he says is a coming surge in crime, advocates for reducing incarceration say they are frustrated by how their goals are often cast as adverse to public safety. “The states that have most significantly reduced their prison population have also seen the biggest drops in their crime and recidivism rates,” said Holly Harris, a former general counsel of the Kentucky Republican Party who is now executive director of the U.S. Justice Action Network. “Reform makes us safer,” Ms. Harris said. “There’s a misperception with prosecutors that somehow reform is anti-law enforcement, and that couldn’t be further from the truth.”

May 18, 2017 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Highlighting how the Sessions Memo may have particular impact for drug trafficking cases in certain districts

News2-2-Graph-SentencingWith thanks to commenter Daniel for the tip, I just saw this notable local article from New Mexico providing a notable local perspective on the potential impact of the new Sessions federal charging/sentencing memo.  The article is headlined "Two Steps Back: How Jeff Sessions’ memo on federal prosecutions could take New Mexico back to a harsher era," and here are excerpts:

A directive from newly appointed US Attorney General Jeff Sessions instructing prosecutors to seek the most severe charges available threatens to stunt recent progress toward less federal prison time for low-level drug offenders in New Mexico, defense lawyers and drug policy reform advocates tell SFR.

“Drug mule” cases make up many of the drug crimes prosecuted in federal court in New Mexico, federal public defender John Butcher says. Some low-level drug runners who get caught mid-shipment are apprehended in Albuquerque, the first overnight stop on Amtrak’s Southwest Chief train from Los Angeles to Chicago. Others are picked up throughout the federally designated “High Intensity Drug Trafficking Area,” which runs east from Farmington down to Santa Fe and into Albuquerque before blanketing most of the southern border from Roswell on. The vast majority of federal drug charges in the state are for trafficking. Possession and brokering drug deals comprise a smaller percentage of crimes.

Drug mule cases, most often involving nonviolent and low-level drug offenders, were among those singled out in a memo issued by former attorney general Eric Holder in August 2013. It encouraged prosecutors not to charge such people with crimes that could trigger stiffer mandatory minimum sentences, which prevent judges from sentencing defendants to prison for fewer than a predetermined number of years. For example, since 1986, federal law has mandated that a person convicted of holding five kilograms of cocaine with intent to distribute be sentenced to a minimum of 10 years in prison for a first offense.

Holder asked prosecutors to back off. If somebody was arrested with five kilograms of cocaine, but was not an organizer, did not have deep ties to criminal groups and wasn’t carrying a gun or another indicator of violent intent, prosecutors were asked not to charge that person with the quantity that would have triggered the 10 years. Data from the US Sentencing Commission suggests that some federal prosecutors in New Mexico may have heeded Holder’s directive. It shows that the percentage of sentenced federal drug offenders who received mandatory minimums immediately dropped from 42 percent in 2013 to 25 percent in 2014, and even fell to 20 percent in 2015, the most recent year for which information is available. That’s about half the figure from 2006, the first year the commission began tracking this data. The decrease came even as the number of people prosecuted for trafficking rose from an average of 586 between 2010 and 2012—before the Holder directive—and 646 between 2014 and 2016.

But Sessions has now directed prosecutors to reverse course. The new attorney general wants federal prosecutors to seek the most serious and readily provable charge against all defendants—regardless of circumstance. “This is going to go after the low-level minimum participants with minor records, because they’re the ones who were getting breaks [under Holder],” Butcher tells SFR. “Breaks” didn’t mean that low-level runners weren’t being charged or sentenced to prison after 2013, he says. But in some cases, they weren’t getting the book thrown at them. Butcher suggests the new policy will have an outsized effect in New Mexico, with its relatively higher number of trafficking cases involving nonviolent offenders....

Since 2013, Santa Fe’s Law Enforcement Assisted Diversion (LEAD) program, wherein police work with case managers and the local district attorney to enroll low-level offenders in treatment programs, has served as a national example for non-punitive approaches to drug use.  District Attorney Marco Serna doesn’t think there’s much overlap between those who would qualify for LEAD and those who could be charged with a federal drug crime, but he acknowledges that the city’s approach stands in contrast to Sessions’ hardline.  “For nonviolent crimes, we have our own state and local statutes, and luckily I get to influence how we handle it in the first district,” Serna says. “And we won’t be taking that approach.”

Prior recent related posts: 

UPDATE: I just saw this notable new New York Times article which drills even deeper into the impact of the Holder Memo by identifying a number of low-level federal drug offenders who seemingly benefited from more lenient charging practices.  The piece is headlined "5 Years, or 20? How Sessions’ Get-Tough Order Would Extend Prison Stays." and it is interesting to see the cases profiled in the article and even more interesting to consider whether the offenders in the article might have been able, even if charged with more serious offenses, been able to avoid the application of a mandatory minimum sentence through the statutory safety valve or through providing cooperation.

May 18, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Ninth Circuit dodges federal marijuana offender's claim his imprisonment contravenes appropriations rider

As everyone involved in or following marijuana reform knows, Congress in recent years has included in its omnibus appropriations bills a rider that prevents the US Department of Justice (DOJ) from using any funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."  Yesterday, a Ninth Circuit panel considered in Davies v. Benov, No. 15-17256 (9th Cir. May 17, 2017) (available here), a notable contention concerning this rider from a federal prisoner.  Here are the basics from the opinion:

Davies owned and operated medical marijuana dispensaries in Stockton and Sacramento, California, which he contends complied with state and local medical marijuana laws. Davies, however, was charged with violating federal drug laws ... [and] entered into a plea agreement, agreeing to a five-year prison term and pleading guilty to the ten counts filed against him....

Davies filed a habeas corpus petition under 28 U.S.C. § 2241 in the Eastern District of California, contending that the BOP’s use of federal funds to incarcerate individuals, such as himself, who engaged in conduct permitted by state medical marijuana laws violates the appropriations rider.

I recall talking to some lawyers back when Congress first enacted the medical marijuana appropriations rider that, if the text were interpreted very broadly, it could arguably preclude the federal Bureau of Prisons (which is part of DOJ) from spending any of its budget on those incarcerated for state-compliant medical marijuana activities. So I am not shocked that this argument made it to the Ninth Circuit. But, as this concluding passage from Davies highlights, this argument still has not yet been addressed on the merits:

The collateral-attack waiver provision in Davies’s plea agreement bars him from this particular challenge to the BOP’s use of federal funds to incarcerate him for conduct he contends complied with California’s medical marijuana laws. Because of this waiver, we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider. Cf. McIntosh, 833 F.3d at 1177–78 (holding that the appropriations rider prohibits the Department of Justice from using appropriated funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws). “We will enforce a valid waiver even if the claims that could have been made [through a collateral attack] absent that waiver appear meritorious, because the whole point of a waiver is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462–63 (9th Cir. 2015) (internal quotation marks, alterations, and emphasis omitted).

I would be shocked to see the Ninth Circuit or any other court ultimately interpret the DOJ appropriations rider to require the release of any federal prisoners, but the argument has enough technical textual legitimacy to surely justify its pursuit by persons federally imprisoned for state-legal medical marijuana activity. And, for various updates on state activities, I continue to try to keep up with major legal developments and other notable stories at Marijuana Law, Policy and Reform as evidenced by some of these recent posts:

May 18, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, May 17, 2017

Terrific effort to sort out "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?"

In this post earlier this week, I talked through the challenge of figuring out the import and impact of the new Sessions Memo on federal charging/sentencing by stressing  uncertainty concerning the impact of various charging memos released by former Attorney General Eric Holder.   Jacob Sullum is carrying forward this effort quite effectively this morning in this terrific new Reason posting asking "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?".   Here are highlights:

For critics of the war on drugs and supporters of sentencing reform, the policy shift that Attorney General Jeff Sessions announced last Friday is definitely a change for the worse. But it's not clear exactly how bad the consequences will be, partly because the impact of the policy he reversed, which was aimed at shielding low-level, nonviolent drug offenders from mandatory minimum sentences, is hard to pin down.

Sessions rescinded a 2013 memo in which Attorney General Eric Holder encouraged federal prosecutors to refrain from specifying the amount of drugs in cases involving nonviolent defendants without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Since mandatory minimums are tied to drug weight, omitting that detail avoids triggering them.

Numbers that the Justice Department cited last year suggest Holder's directive, which was the heart of his Smart on Crime Initiative, had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to data from the U.S. Sentencing Commission (USSC), the share of federal drug offenders subject to mandatory minimums has fallen steadily since Holder's memo, from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. If the percentage had remained the same, more than 10,000 additional drug offenders would have fallen into that category during this period.

"The promise of Smart on Crime is showing impressive results," Deputy Attorney General Sally Q. Yates said last year, citing the USSC numbers through fiscal year 2015. "Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders."

Counterintuitively, however, the defendants whom the USSC describes as "drug offenders receiving mandatory minimums" include drug offenders who did not actually receive mandatory minimums. Many of them were convicted under provisions that call for mandatory minimums yet escaped those penalties because they offered "substantial assistance" or qualified for the statutory "safety valve."

Paul Hofer, a policy analyst at Federal Public and Community Defenders, took those other forms of relief into account in a 2013 estimate of the Holder memo's possible impact.... Hofer's analysis suggests that the vast majority of drug offenders who seem to have benefited from the 2013 memo—thousands each year—did not actually receive shorter sentences as a result of the policy change.

Then again, the benefits of Holder's memo may extend beyond the federal defendants who avoided mandatory minimums. By encouraging prosecutors to focus their efforts on the most serious drug offenders, Holder may have indirectly reduced punishment by allowing some people to avoid federal charges altogether. That instruction may help explain why the total number of federal drug cases fell from 25,000 in fiscal year 2013 to 21,387 in fiscal year 2016, a 14 percent drop.

As Molly Gill, director of federal legislative affairs at Families Against Mandatory Minimums, points out, there is some evidence that federal prosecutors did try to focus on the most serious cases: During the same period, the share of defendants benefiting from the safety valve (which excludes high-level and violent offenders) fell from 24 percent to 13 percent. "With the directive not to slam low-level drug defendants," says University of California at Irvine criminologist Mona Lynch, "there was likely some shift toward bringing more serious cases and simply passing on smaller, street-dealing type of cases."

Sessions is now telling federal prosecutors to pursue the most serious provable charges against drug offenders (and other federal defendants) unless they believe an exception to that policy is warranted, in which case they have to seek permission from their supervisors and justify the decision in writing. Although Sessions argues that the new default rule will produce more uniform results, Lynch thinks it could have the opposite effect.

"The big question is whether he has the power to roll back time and change the prevailing legal culture that has tempered the 'drug war' mentality of the 1990s in many federal jurisdictions," says Lynch, who studied the behavior of federal prosecutors for her 2016 book Hard Bargains: The Coercive Power of Drug Laws in Federal Court. "Even under a more stringent set of charging policies…U.S. attorneys have considerable discretion as to what cases to bring….This policy may only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era. This would result in even more geographic disparity in federal justice outcomes, a longstanding concern of Congress and of the U.S. Sentencing Commission."

Prior recent related posts: 

May 17, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Progressive defense attorney wins key primary and now seems poised to become Philadelphia District Attorney

As reported in this local article, a notable and unlikely figure won a Democratic primary and seems poised now to become the most remarkable of modern big city prosecutors.  Here are the basics:

Larry Krasner was the unlikeliest of candidates for district attorney in Philadelphia. That turned out to be just the ticket for victory in the unlikeliest of Democratic primary elections Tuesday.

Progressive voters demanded reform for an office currently held by a man under federal indictment. And the local race was nationalized by a growing sense of resistance among many Democrats in the city to President Trump’s every move.

Krasner, 56, easily defeated six other contenders Tuesday, in a campaign that went from low-key to high-profile last month with a $1.45 million investment from billionaire George Soros in a pro-Krasner independent political action committee. With nearly 98 percent of the vote tallied Tuesday night, Krasner held nearly an 18-point lead on his closest Democratic rival. Krasner will face in the Nov. 7 general election Beth Grossman, the lone Republican in her party’s primary Tuesday.

Krasner, a defense attorney for three decades best known for taking on civil rights cases for Black Lives Matter and Occupy Philadelphia members, AIDS activists and protesters arrested at political conventions, has never served a day in his career as a prosecutor. That became his pitch -- that he was more likely to reform the District Attorney’s Office because he had no ties to the institution, unlike most of the other Democrats in the race.

That message appealed to several hundred people who filled the John C. Anderson Apartments community room and an outdoor courtyard in Center City on Tuesday night for Krasner’s victory party. It got a little rowdy as the results rolled in. Chants of "No good cops in a racist system" and against the Fraternal Order of Police were quickly shut down by Krasner campaign staffers.

Krasner, who lives in West Mount Airy, told the crowd they shared a vision of “a criminal justice system that makes things better, that is just, that is based on preventing crime and is based on building up society rather than tearing it apart." And he reached out to the office he hopes to lead. "To the good people of the District Attorney's Office, I want you to know, you could have made more doing something else, but you became district attorneys because you wanted justice,” he said. “You know what I want? I want what you want. I want justice."

Krasner had a remarkable impact on the primary, pulling the field to the left, leading that movement with a pledge to stop seeking death-penalty sentences if elected. He joked Tuesday night that his position on capital punishment had been described as “political suicide.” As he ended his speech, the crowd launched into a booming chant of "This is what democracy looks like."

Krasner’s primary victory is certain to set off rumblings of uncertainty in the District Attorney’s Office. He has described it as “a place with a mad zeal for the highest charge, for the highest level of conviction, a culture that can find no flaw in police misconduct, that is drunk on the death penalty.” Krasner has also sued law enforcement agencies or the government more than 75 times.

His rise prompted a group of two dozen former District Attorney’s Office employees to endorse former city and federal prosecutor Joe Khan on Friday. Khan finished second in the race, followed by former city Managing Director Rich Negrin, former First Assistant District Attorney Tariq El-Shabazz, former city and state prosecutor Michael Untermeyer, former assistant district attorney Jack O’Neill, and former Municipal Court Judge Teresa Carr Deni.

Krasner, the son of a crime-fiction author and an evangelical Christian minister, grew up in St. Louis and graduated from Stanford Law School, starting his career as a federal public defender before launching his own firm in 1993. He is married to Common Pleas Court Judge Lisa M. Rau.

Krasner’s victory was fueled by biographical television commercials paid for with Soros’ cash. That helped him far outpace Untermeyer, who invested $1.3 million of his own money in the race, and Khan, who outperformed all the other candidates in fund-raising from individual donors.

May 17, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Tuesday, May 16, 2017

Is it unconstitutional for a state to allow judges to increase sentences because a felony was committed by someone illegally present in the US who had been previously deported?

The question in the title of this post could be an issue before state (and federal?) judges in Tennessee shortly, because a new state sentencing provision to this effect is on the desk of the Governor of the Volunteer State.   This local article, headlined "Bill gives TN judges more power in sentencing, experts say law is unconstitutional," explains:

State lawmakers are keeping an eye on the clock as time ticks down for Gov. Bill Haslam to act on a bill granting state judges new sentencing authority. The bill allows judges to add more time to a felony sentence if a defendant is in the country illegally. Right now the state of Arizona is involved in a legal battle over a similar issue.

Tennessee lawmakers say this bill would be a hard deterrent against crime. Immigration advocates say it's a burden on local governments that will drive a wedge between the community and the legal system. Haslam has three options when it comes to the sentencing enhancement bill before his desk. He can sign it, veto the bill or allow it to pass into law without his signature.

Lincoln Memorial University Duncan School of Law professor Stewart Harris believes whether it's signed or not, this bill might not be around for long. "My initial reaction is that it's probably unconstitutional,” said Harris.

According to Harris, the U.S. Constitution governs America's immigration laws, not states. That's one reason states don't typically pass immigration laws. "Should California have one set of rules and Massachusetts another? What about all the landlocked states, should they have their own rules as well? That’s why Congress has authority over immigration,” explained Harris.

State Sen. Becky Duncan Massey of Knoxville believes this bill isn't an immigration issue. "The courts are going to decide if something is constitutional or not if it's challenged. I don't believe this really has to do with immigration, it has to do with crime,” said Massey.

Massey says residence is already a factor when considering a person's bond. She believes judges should have all the information about a defendant available to them before sentencing. "They’re already going to jail, they have committed a crime, they've been convicted of a crime and this is just a factor along with another factor determining how long the sentence is,” she said....

This bill passed the House and Senate on May 9. The governor has 10 working days to take action or allow it to pass without his signature.

Though I am not an expert on immigration law or preemption, I am inclined to believe this kind of law is constitutional. I can see a range of reasonable constitutional and policy arguments against this proposed amendment of Tennessee's sentencing laws, but the fact that the provision appear to apply to those in the country illegally AFTER a previous deportation would seem to foster an argument that the law is more like punishing someone based on a certain type of prior criminal history rather than just based on alienage.  But nobody should hold me to that too-quick and relatively uniformed assessment, and everybody should use the comments to help be get better informed on the question in the title of this post.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Three new CCRC posts highlighting how collateral consequences have become a focal point for modern criminal justice reform

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and three recent postings at CCRC struck me as worth a special mention because they each in distinct ways showcase the heightened attention and concern for collateral consequences in modern criminal justice reform conversations.  (At the risk of being cheeky, one might say collateral consequences are no longer being treated as collateral by serious advocates for criminal justice reform.  

Here are these three posts that caught my eye as highlighting distinct and distinctly important institutional players paying close attention to collateral consequences:

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (1)