Monday, September 29, 2014

Rooting for acquitted conduct petition grant from SCOTUS long conference

Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.

Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest.  Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)

Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background.  Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:

Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution.  When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge.  When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury.  Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong.  Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge.  Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....

The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence.  Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence.  By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.

Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury.  It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury.  But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.

Previous related posts on this case and acquitted conduct sentencing enhancements:

September 29, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

"Mitigating Foul Blows"

The title of this post is the title of this intriguing new paper by Mary Bowman available via SSRN. Here is the abstract:

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions.  Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error.  Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.

Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases.  This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize.  As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases.  These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.

September 29, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, September 26, 2014

Could (and should) AG Eric Holder be even bolder on sentencing and drug war reform as a lame duck?

Not suprisingly, the early conversations after Attorney General Eric Holder's resignation announcement yesterday (discussed here) concerns who President Obama will nominate for the position and and when the Senate will consider that nomination.  But, because AG Holder indicated he would stay on the job until his replacement is confirmed, and because it is certainly possible that the confirmation process could take a number of months, it is certainly possible that Holder could still need to do some significant work before he turns over the keys to his office.  And, as the question in the title of this post suggests, one might wonder if AG Holder might see his new lame duck status as providing him with even more freedom to push even more aggressively on various sentencing and drug war reforms he has championed in his tenure (especially over the last year or so).

Though I seriously doubt AG Holder could or should seek now to push through any major formal DOJ policy initiatives as he heads out the door, he certain can use his office and its bully pulpit to continue to talk up his views about the need for federal criminal justice reforms.  Indeed, as highlighted by this new Huffington Post piece, headlined "Eric Holder Signals Support For Marijuana Reform Just As He's Heading Out The Door," Holder may now already feel a bit more free to talk about reforming federal marijuana laws.

I am especially interested to see if AG Holder might have some more to say about DOJ's clemency efforts on his way out the door.  Needed reforms on executive clemency have been widely discussed by various DOJ officials throughout 2014, and yet there has still been a paucity of real consequential action by the President in this arena.  I hope AG Holder might really try to prod Prez Obama to get moving on this front on his way out the door.

September 26, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack

"Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard"

The title of this post is the title of this new paper by Adam Lamparello now available on SSRN. Here is the abstract:

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled.  As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded?  The answer is yes, and the Georgia courts do not understand why we are scratching our heads.  The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.

Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled.  In 1986, Georgia became the first state to ban executions of the intellectually disabled.  It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.

Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed.  Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed.  The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.

September 26, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, September 25, 2014

Eric Holder resigning Attorney General position ... next up?

As this Politico article reports, "Attorney General Eric Holder will announce Thursday his plans to leave his post at the Justice Department once a successor is confirmed." Here is more about this breaking news:

Holder has been in the job for nearly six years, since the start of the Obama administration, and would be the third longest-serving attorney general if he is still in the position in December.

President Barack Obama will announce the personnel change at the White House at 4:30 p.m. Officials have not yet said whether the president will announce a nominee for the job at that time.

Obama and Holder developed a close working and personal relationship over the course of the administration, putting the attorney general on stronger footing as he faced a wide range of criticism from Congress and the public, and as even some of the president’s aides privately urged for a change in leadership at the Justice Department. Holder also is close with Obama senior adviser Valerie Jarrett.

Holder’s departure has long been speculated, and he has discussed his plans with the president “on multiple occasions in recent months,” a Justice Department official said. He finalized his plans in an hourlong conversation at the White House residence over Labor Day weekend, potentially giving the White House close to a month to decide on a nominee for the position.

One much talked-about contender, Massachusetts Gov. Deval Patrick, is scheduled to travel to Washington on Thursday for pre-planned Friday events with the Congressional Black Caucus, his office said.... Two others believed to be on the short list for the job are Solicitor General Donald Verrilli and Preet Bharara, U.S. attorney for the Southern District of New York.

This USA Today article, headlined "After Eric Holder: Potential attorney general choices," provides this longer list of potential AG nominees in addition to Governor Patrick:

Janet Napolitano: The former Homeland Security secretary and governor was Arizona's attorney general from 1999 to 2002. She currently serves as president of the University of California system.

Kathryn Ruemmler: She departed as White House counsel last year. Obama told the New York Times that he deeply valued Ruemmler for "her smarts, her judgment and her wit." She worked for the White House since the start of Obama's tenure, starting as principal associate deputy attorney general — the third-ranking position at the Justice Department.

Robert Mueller: The respected lawyer and specialist in white-collar crime became FBI director a week before the 9/11 terrorist attacks. Mueller went on to serve both George W. Bush and Obama. Currently in private law practice, Mueller was recently tapped to lead the NFL's investigation into the Ray Rice domestic violence incident.

Kamala Harris: The attorney general of California is often touted as as a potential candidate for governor or U.S. Senate. She was the first woman elected as district attorney in San Francisco and first elected to her current position in 2010.

I have no insider knowledge and no real sense of who might be especially good at a job likely to be especially difficult over the next few years. But I think I am pulling for Kamala Harris (because I would like to see a woman of color in this job) and Preet Bharara (because I was a summer associate with him at a big NY firm more than two decades ago).

September 25, 2014 in Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, September 24, 2014

Interesting response from Heritage folks interested in AG Holder's recent sentencing comments

In response to yesterday's posting about Attorney General Eric Holder's big speech at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration," I received (and got authorization to reprint here) the following interesting and amusing e-mail from Paul Larkin, who is the Senior Legal Research Fellow at The Heritage Foundation's Center for Legal & Judicial Studies:

Professor Berman: In AG Holder's speech yesterday, I found interesting the fact that he quoted from an article that Evan Burnick and I wrote for Heritage earlier this year, entitled “Reconsidering Mandatory Minimum Sentences: The Arguments For and Against Potential Reforms,” Heritage Legal Memorandum No. 114 (Feb. 10, 2014), available at this link.   You blogged about it a while ago.  (Thank you.)   Many people at Heritage were quite surprised that AG Holder quoted from a Heritage paper, but I think that it is rewarding to see that DOJ officials read it.

I do have one question, however: Do you know what the temperature was in hell yesterday?

Recent related posts:

September 24, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?

The question in the title of this post is prompted by this lengthy new FoxNews piece headlined "California voters weigh 'radical' changes to justice system as prisons fill up." Here are excerpts:

Voters this fall, however, could approve big -- and some say "dangerous" -- changes to the state’s sentencing system, aimed in part at easing the overcrowding.  On the state ballot is a proposal that would dramatically change how the state treats certain “nonserious, nonviolent” drug and property crimes, by downgrading them from felonies to misdemeanors.

The measure, known as Prop 47, also would allow those currently serving time for such offenses to apply for a reduced sentence, as long as they have no prior convictions for more serious crimes like murder, attempted murder or sexual offenses. 

Businessman B. Wayne Hughes Jr., who has donated hundreds of thousands of dollars to push the ballot measure, told FoxNews.com the changes would affect Californians who are “over-incarcerated and over-unpunished.” 

“I saw Prop 47 as common-sense reform,” Hughes said. “I don’t see it as a radical reform.”

However, the measure is being slammed as dangerous by members of California’s law enforcement, including San Diego Police Chief Shelley Zimmerman.   Zimmerman told FoxNews.com “virtually the entire law enforcement community opposes Prop 47.”

“It will require the release of thousands of dangerous inmates,” she said. 

The proposition would reduce penalties for an array of crimes that can be prosecuted as either felonies or misdemeanors in California. This includes everything from drug possession to check fraud to petty theft to forgery.  Prop 47 would, generally, treat all these as misdemeanors, in turn reducing average jail sentences.  According to a state estimate, there are approximately 40,000 people convicted each year in California who would be affected by the measure.

“[Prop 47] allows the criminal justice system to focus in on more serious crimes,” Hughes said.

According to an analysis by the California Budget Project, state and local governments would save hundreds of millions of dollars every year.  The measure dictates the savings be split among three different areas, with 65 percent going to mental health and drug treatment programs, 25 percent going to K-12 school programs and 10 percent going to victim services.  The measure’s supporters say it also would help reduce California’s prison-overcrowding problem, an issue that has dogged the state for years.

The analysis by the California Budget Project found that the California prison population would “likely" decline if Prop 47 were implemented.  “If Proposition 47 reduced the prison population by just 2,300 individuals – through re-sentencing and/or reduced new admissions – the state could meet the court-ordered population threshold via the measure alone,” the analysis said.

However, Zimmerman argued that the proposition would only shift the burden from the state prisons to local law enforcement and communities.   “[Prop 47 is] not a sustainable or responsible way to reduce California’s prison population,” she said.

The California Police Chiefs Association also has come out hard against the proposition.  “Proposition 47 is a dangerous and radical package of ill-conceived policies wrapped in a poorly drafted initiative which will endanger Californians,” the association said....

Former Republican congressional candidate Weston Wamp agreed, saying Prop 47 "might not be perfect, but it’s a breath of fresh air to talk about an issue where there can be some agreement."  Wamp said if passed, he believes Prop 47 could have a positive effect on the nationwide prison reform movement.   "I think it’s realistic if you give people who are not violent criminals, if you give them an opportunity not to just stay behind bars but to make their lives better, you may see over a longer period of time is lower rates in recidivism and a better chance at taking care of the problems and paying the bills," he said. 

For now, it seems like the proposition’s supporters are connecting with voters. An August poll by the Field Research Corporation found that 57 percent of Californians were in favor of the measure, 24 percent were opposed and 19 percent were undecided. 

Prior related post:

September 24, 2014 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

"Why Are So Many People Getting Sentenced to Death in Houston?"

The title of this post is the headline of this new article in The National Journal.  It gets started this way:

Just 10 U.S. counties — roughly 0.3 percent of the nation's total — account for more than a quarter of all the American executions that have been carried out since 1976.

Texas's Harris County, which includes Houston, is far and away the leader in executions during that period. That district has handed out 122 death sentences that were carried to completion, more than double the next highest. Harris County alone is responsible for more executions than any state besides Texas.

Dallas County, which includes the Dallas-Fort Worth area, comes in second at 53.

September 24, 2014 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Brennan Center urges new orientation in "Federal Prosecution for the 21st Century"

As noted in prior posts here and here, Attorney General Eric Holder gave a big speech yesterday in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration." In that speech, AG Holder praised the Brennan Center's effort to encourage prosecutrs to "shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success."  These Brennan Center efforts are reflected in this important new publication titled "Federal Prosecution for the 21st Century." Here is how the Center describes this report:

This new report from the Brennan Center for Justice at NYU School of Law proposes modernizing one key aspect of the criminal justice system: federal prosecutors. Prosecutors are in a uniquely powerful position to bring change, since they make decisions about when and whether to bring criminal charges, and make recommendations for sentencing.  The report proposes reorienting the way prosecutors’ “success” is measured around three core goals: Reducing violent and serious crime, reducing prison populations, and reducing recidivism.  The mechanism for change would be a shift in how attorneys' performance is assessed, to give prosecutors incentives to focus on how their practices reduce crime in and improve the communities they serve, instead of making their "success" simply a measure of how many individuals they convict and send to prison.

September 24, 2014 in Data on sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, September 23, 2014

Highlights from AG Holder's big speech today at the Brennan Center for Justice

As noted in this prior post and as detailed in this official Justice Department press release, Attorney General Eric Holder gave a big speech today in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration." Here are some highlights from a speech that all sentencing fans will want to read in full:

As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative — a series of important changes and commonsense reforms I set in motion last August.  Already, these changes are fundamentally shifting our response to certain crime challenges —particularly low-level, nonviolent drug offenses.  And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.

After all — as I’ve often said — the United States will never be able to prosecute or incarcerate its way to becoming a safer nation.  We must never, and we will never, stop being vigilant against crime — and the conditions and choices that breed it.  But, for far too long — under well-intentioned policies designed to be “tough” on criminals — our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities — particularly communities of color....

Perhaps most troubling is the fact that this astonishing rise in incarceration — and the escalating costs it has imposed on our country, in terms both economic and human — have not measurably benefited our society.  We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades — thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America.  But statistics have shown — and all of us have seen — that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.

In fact, the opposite is often true.  Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates — performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 — shows that states with the most significant drops in crime also saw reductions in their prison populations.  States that took drastic steps to reduce their prison populations — in many cases by percentages well into the double digits — saw crime go down as well.  And the one state — West Virginia — with the greatest increase in its incarceration rate actually experienced an uptick in crime.

As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.”  And this has been borne out at the national level, as well.  Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent.  This is the first time these two critical markers have declined together in more than 40 years. And although we have a great deal of work to do — and although, last year, some states continued to record growth in their prison populations — this is a signal achievement....

Over the past year, the federal prison population declined by roughly 4,800 inmates — the first decrease we’ve seen in many ‎decades.  Even more promising are new internal projections from the Bureau of Prisons. In a dramatic reversal of prior reports — which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe — taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months — and by almost 10,000 in the year after.‎

This is nothing less than historic.  To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity.  Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity.  But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect.

Clearly, criminal justice reform is an idea whose time has come.  And thanks to a robust and growing national consensus — a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul — we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. ...

The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities — and the judgment — of our attorneys on the front lines.  And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.

As I know from experience — and as all veteran prosecutors and defense attorneys surely recognize — defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence.  Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway.  As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients — and for defendants to cooperate with the government in exchange for reduced sentences.

Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion.  The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts.  After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.”

Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities.  In the Smart on Crime era, it’s no longer adequate — or appropriate — to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view.  As the Brennan Center and many others have recognized — and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear — it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success....

Your concrete recommendations — that federal prosecutors should prioritize reducing violence, incarceration, and recidivism — are consistent with the aims of the Smart on Crime initiative.  The new metrics you propose — such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate — lay out a promising roadmap for us to consider.  And my pledge to you today is that my colleagues and I will not merely carefully study this critical report — we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures — with the aim of cementing recent shifts in law and policy.

One of the key points underscored by your report — and emphasized under the Smart on Crime approach — is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data. This is something that we — and especially our Office of Justice Programs and Bureau of Justice Assistance  — have taken very seriously throughout the Obama Administration.  And nowhere are these ideals more fully embodied — or more promisingly realized — than in our Justice Reinvestment Act and Second Chance Act programs....

Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year.  That, on its own, is an extraordinary indication of the power and importance of this work.  And this additional funding is allowing us to launch a new challenge grant program — designed to incentivize states to take the next major step in their reform efforts.

Today, I am pleased to announce that five states — Delaware, Georgia, Louisiana, Ohio, and Oregon — will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options.  I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism. Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals.  And each will be eligible for an additional $2 million over the next two years if they do so.

September 23, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 22, 2014

Inititative details and debates over California's Proposition 47 to reduce severity of various crimes

One of the most intriguing criminal justice initiatives not dealing with marijuana in the 2014 election season is Proposition 47 in California.  This nonpartisan analysis from the Legislative Analyst's Office provides this simplified summary of the initiative (as well as a more detailed explanation of Prop 47's particulars):

This measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes.  The measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences.  In addition, the measure requires any state savings that result from the measure be spent to support truancy (unexcused absences) prevention, mental health and substance abuse treatment, and victim services.

This local recent article, headlined "Arguments Heating Up in Penalty-Reducing Prop 47," provides the essence of the current state of debate over this notable initiative:

Some say under Proposition 47 criminals will get a slap on the wrist, but others argue it's a second chance. The crime-fighting arguments for and against Prop 47 are heating up as we inch closer to the November election.

Prop 47 looks to drop non-violent, non-sexual and non-serious felony crimes into misdemeanors. Supporters say it will ease jail and prison overcrowding by giving some a second chance. But opponents say it's a dangerous way to increase the speed of the revolving jail door.

About two dozen religious activists began a huge push Thursday at St. Rest Baptist Church is Southwest Fresno to support Prop 47, calling it the Safe Neighborhoods and Schools Act. Catholic Bishop Armando Ochoa was among the speakers who believe Prop 47 would benefit the public. "Incarceration does a miserable job of educating people and treating mental illness, but that has become the norm for California," he said.

Under Prop 47 there is a promise of savings to the state by reducing prison and jail population. The promise includes transferring that savings, around a billion dollars over several years, to K-12 education, mental health and rehab programs.

"It promises to lower crime by making it legal," said Mike Reynolds, author of California's three-strikes law. "That's basically what it's saying." Reynolds penned three strikes after his daughter, Kimber Reynolds, was killed in the Tower District in 1992. "This is going to encourage more young people to come into a life of crime," Reynolds said. "It's going to release dangerous criminals back out on the streets, including three strikers."...

So far several law enforcement groups, like the California Police Chiefs Association, are highly opposed to Prop 47's reduced penalties....

The crimes that would be reduced to misdemeanors include drug possession, forgery and shoplifting, among a host of other crimes.

September 22, 2014 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Brennan Center event on "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration"

As detailed via this webpage, the Brennan Center for Justice has assembled an impressive cast of prominent  public officials to address all day on Tuesday September 23 the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration."  Among the headliners is US Attorney General Eric Holder, who will give a keynote speech at 1pm.  Here is how the Brennen Center sets up the coming discussion:

The need to reform law enforcement practices is now at the center of American public discourse. Join the Brennan Center and the nation’s leading law enforcement and economic policy experts, including U.S. Attorney General Eric Holder, for a full-day conference focused on transforming prosecutorial practices and federal funding structures to both decrease crime and violence and reduce the nation’s incarcerated population.

Experts will discuss: What role should prosecutors and police play in reform efforts? Should their goal be simply to enforce and prosecute to their fullest authority, or should they also strive to reduce unnecessary arrests and incarceration? How can federal funding help modernize local law enforcement nationwide?

The full agenda for this event is available via this link, and I blieve the event will be live-streamed starting at 8:30am and can be accessed via this weblink.

September 22, 2014 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, September 21, 2014

Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"

Newt Gingrich and B. Wayne Hughes Jr. are the co-authors of this notable recent Los Angeles Times op-ed headlined " "What California can learn from the red states on crime and punishment." Among other points, the piece makes the case for a proposition on the ballot in California (Prop 47) that would reduce the severity of a number of California crimes. Here are excerpts:

Imagine you have the power to decide the fate of someone addicted to heroin who is convicted of petty shoplifting. How much taxpayer money would you spend to put that person in prison — and for how long? Is incarceration the right form of punishment to change this offender's behavior?

Those are questions states across the nation are increasingly asking as the costly and ineffective realities of incarceration-only policies have set in. Obviously, we need prisons for people who are dangerous, and there should be harsh punishments for those convicted of violent crimes. But California has been overusing incarceration. Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.

Reducing wasteful corrections spending and practices is long overdue in California. The state imprisons five times as many people as it did 50 years ago (when crime rates were similar). And as Californians know, the state's prison system ballooned over the last few decades and became so crowded that federal judges have mandated significant reductions.

Contributing to the growth in the number of prisoners and in prison spending has been a dramatic expansion in the number of felonies. In addition, mandatory minimum sentences have been applied to an increasing number of crimes. These policies have combined to drive up the prison population, as more prisoners serve longer sentences. On top of that, California has an alarmingly high recidivism rate: Six out of 10 people exiting California prisons return within three years.

It makes no sense to send nonserious, nonviolent offenders to a place filled with hardened criminals and a poor record of rehabilitation — and still expect them to come out better than they went in. Studies show that placing low-risk offenders in prison makes them more dangerous when they are released.

Over-incarceration makes no fiscal sense. California spends $62,396 per prisoner each year, and $10 billion overall, on its corrections system. That is larger than the entire state budget of 12 other states. This expenditure might be worth it if we were safer because of it. But with so many offenders returning to prison, we clearly aren't getting as much public safety — or rehabilitation — as we should for this large expenditure.

Meanwhile, California spends only $9,200 per K-12 student, and the average salary for a new teacher is $41,926. And as California built 22 prisons in 30 years, it built only one public university.

California is not alone in feeling the financial (and public safety) consequences of over-incarceration. Several states — politically red states, we would point out — have shown how reducing prison populations can also reduce cost and crime. Most notably, Texas in 2007 stopped prison expansion plans and instead used those funds for probation and treatment. It has reduced its prison population, closed three facilities and saved billions of dollars, putting a large part of the savings into drug treatment and mental health services. Better yet, Texas' violent crime rates are the lowest since 1977.

Another red state, South Carolina, made similar reforms for nonviolent offenses. The drop in the number of prisoners allowed South Carolina to close one prison and also lower its recidivism rate. Other states (Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi) have similarly shifted their approach to nonviolent convictions.

Now voters in California will have a chance to do the same, using costly prison beds for dangerous and hardened criminals. It is time to stop wasting taxpayer dollars on locking up low-level offenders. Proposition 47 on the November ballot will do this by changing six nonviolent, petty offenses from felony punishments (which now can carry prison time) to misdemeanor punishments and local accountability.

The measure is projected to save hundreds of millions of taxpayer dollars per year, and it will help the state emphasize punishments such as community supervision and treatment that are more likely to work instead of prison time....

If so many red states can see the importance of refocusing their criminal justice systems, California can do the same. It's not often the voters can change the course of a criminal justice system. Californians should take advantage of the opportunity and vote yes on Proposition 47.

September 21, 2014 in Elections and sentencing issues in political debates, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, September 20, 2014

Despite the threat of another Plata, a number of states' prisons remain way over capacity

I expected that one consequence of the Supreme Court's affirmance of the prisoner release order for California in Plata would be that other states would work even harder than usual to keep their prison overcrowding in check so as not to risk Plata-like litigation in their states.  But, as this new Washington Post piece highlights, there are still a significant number of states that are still dealing with significant prison overcrowding problems (though Plata still seems on their minds).  Here are excerpts from a piece headlined "Prisons in these 17 states are over capacity":

The number of Americans in state and federal prisons has exploded over the last three decades, to the point that nearly one in every 200 people is behind bars. And though the rate of growth has slowed, and even declined over the last five years, the tough-on-crime policies and longer sentences that have sent prison rates skyward present a huge problem for states: Where do they put all those people?

That problem is especially acute in 17 states where the prison population is now higher than the capacity of the facilities designed to hold them. Those states, still recovering from a recession that decimated budgets, have to decide whether to build facilities with more beds, turn to private contractors, relax release policies — or simply stuff more prisoners into smaller spaces.

At the end of 2013, Illinois was housing 48,653 prisoners, according to data published by the Bureau of Justice Statistics. The state’s prison facilities are designed to hold just 32,075 prisoners, meaning the system is operating at 151 percent of capacity. North Dakota’s 1,571 prisoners live in space meant for 1,044 people, 150 percent of capacity. Nebraska, Ohio, Delaware, Colorado, Iowa and Hawaii are all holding a prison population equal to more than 110 percent of capacity.

What scares states the most is the prospect of federal courts intervening and ordering new action. California has been under court order since 2009 to reduce its prison population, which is far beyond capacity. The state has spent billions housing inmates in county jails or sending them to facilities run by private for-profit companies.

“No state actively wants the federal courts to come in and take over operation of their state government functions,” said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts.

The possibility of federal court intervention has spurred Alabama to begin reviewing its corrections procedures. A Justice Department investigation released in January found conditions at the state’s women’s prison violate the Constitution, and DOJ said it would look into conditions at other state prison facilities.

In June, Alabama Gov. Robert Bentley (R) launched the Justice Reinvestment Initiative to study the state’s criminal justice system and make recommendations for easing overcrowding. The state’s prison facilities are designed to house 13,318 inmates, though operationally the facilities can hold 26,145 people. The current prisoner population, 26,271 inmates, is 197 percent of the lowest possible capacity and 100.5 percent of the highest number.

Court intervention “has been a powerful motivator over the last couple of years for Alabama to tackle its situation, independent of all the in-state concerns with overcrowding,” Gelb said.

September 20, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, September 19, 2014

"The Most Senior Wall Street Official: Evaluating the State of Financial Crisis Prosecutions"

The title of this post is the title of this notable new article on SSRN authored by Todd Haugh. Here is the abstract:

This September marks six years since the collapse of Lehman Brothers and the height of the financial crisis.  Recently, a growing debate has emerged over the Justice Department’s failure to criminally prosecute Wall Street executives for their role in creating the crisis.  One side of that debate contends the government has failed to bring to justice individual wrongdoers — primarily the heads of banks operating in the mortgage-backed securities market — instead preferencing enforcement decisions that target corporations, resulting in punishments that are “little more than window-dressing.”  The other side argues that cases against individuals are precluded by the realities of the federal criminal justice system, and that “corporate headhunting” will only inhibit meaningful regulatory reform.

It is difficult, however, to evaluate these competing claims without proper context.  This Article explores the recent conviction and sentencing of Wall Street executive Kareem Serageldin as a means of providing that context.  Although Serageldin has been trumpeted as the “the most senior Wall Street official” to be sentenced for conduct committed during the financial crisis, and his conviction was framed as a victory in punishing those accountable for the financial collapse, a critical look at his case reveals he committed only a mundane white collar crime marginally related to the crisis.  This disconnect creates a unique lens through which to understand and evaluate the current state of — and debate surrounding — financial crisis prosecutions.  And it ultimately highlights the merits, and shortfalls, of each camp’s arguments.  The Article concludes by offering something largely absent from the current debate: specific proposals for how we might go about prosecuting individuals so as to prevent the next crisis.

September 19, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, September 18, 2014

Members of Congress call for federal judge to resign after his domestic violence conviction

As reported in this local article, headlined "Sen. Jeff Sessions, Sen. Richard Shelby call for Mark Fuller's resignation," there is a growing consensus that a federal district judge ought to not longer be a judge after his conviction for assaulting his wife.  Here are the details:

On Wednesday, Sen. Jeff Sessions and Sen. Richard Shelby called for U.S. District Judge Mark Fuller's immediate resignation following his high-profile arrest for domestic violence in August.  "Judge Fuller's unacceptable personal conduct violates the trust that has been placed in him," Sessions said in a statement.  "He can no longer effectively serve in his position and should step down."

Sessions' sentiments echoed Shelby's earlier comments.  "The American people's trust in our judicial system depends on the character and integrity of those who have the distinct honor of sitting on the bench," Shelby said.  "I believe that Judge Mark Fuller has lost the confidence of his colleagues and the people of the state of Alabama."...

Fuller, who serves Alabama's federal middle district, was arrested Aug. 9 after his wife reported to police that her husband was drunk when he beat her while they were at an Atlanta hotel.  She had accused him of having an extra-marital affair with his law clerk. According to the police report, police noted "visible lacerations" to the woman's mouth and forehead.  Police said the woman reported Fuller had pulled her to the ground by her hair and kicked her.

On Sept. 5, Fuller accepted a plea deal that could expunge the arrest from his record if he completes a counseling program

On Tuesday, U.S. Rep Martha Roby said tolerating domestic abuse is condoning the crime, adding that she is closely monitoring the case. Rep. Terri Sewell also called for Fuller's resignation Tuesday. "No one committing such abusive acts should get a pass," Sewell said. "This is especially true for those charged with upholding and enforcing the law. Judge Fuller has violated the public trust and should resign."

Related prior posts:

September 18, 2014 in Collateral consequences, Who Sentences? | Permalink | Comments (10) | TrackBack

Long-incarcerated mass murderer given right to end his life in Belgium

A helpful reader alerted me to this fascinating article from overseas headlined "Serial murderer and rapist, 50, given right to die under controversial Belgian euthanasia laws." Here are excerpts:

A serial murderer and rapist has been given the right to end his life under controversial Belgian euthanasia laws, it has emerged.  Frank Van Den Bleeken, 50, has been behind bars for 30 years and has no hope of release because of his intensely violent urges.  Now judges in Brussels have agreed that Van Den Bleeken can commit suicide with the help of medics.

Jos Vander Velpen, the prisoner’s lawyer, said: ‘Over recent years, he has been seen by several doctors and psychologists and their conclusion is that he is suffering, and suffering unbearably.’

It will be the first time that a Belgian legal ruling about euthanasia which specifically applies to a serving prisoner has been handed down.  It was rubber stamped by the country’s Justice Ministry, which is ultimately responsible for everyone serving time in jail.

In all cases, patients must be conscious and have presented a ‘voluntary, considered and repeated’ request to die.  Mr Vander Velpen said his client met all such conditions, and for the past four years had felt he ‘couldn’t stand to live like this any longer and could no longer accept the pain’.

Van Den Bleeken will be transferred from his prison in Bruges to a hospital, where he will be euthanised.  Like every other country in the Union, Belgium does not have a death penalty, and technically doctors will only be helping Van Den Bleeken die.

Van Den Bleeken himself said in recent TV documentary: ‘If people commit a sexual crime, help them to deal with it.  Just locking them up helps no one — neither the individual, society or the victims.  ‘I am a human being, and regardless of what I’ve done, I remain a human being.  So, yes, give me euthanasia.’

Despite being a mainly Roman Catholic country, Belgium has always been at the forefront of liberalising euthanasia laws.  It made euthanasia legal in 2002, making it only the second country in the world to do so after Holland.  Last year alone, Belgium euthanised a record 1,807 people.

Van Den Bleeken has only left prison once in the past three decades — to attend his mother’s funeral.  A Belgian justice ministry spokesman said Van Den Bleeken would be euthanised ‘shortly’ at this own request.

Perhaps unsurprisingly, the decision to grant Van Den Bleeken a right to die, as evidenced by this companion commentary piece headlined "Why should our sister's killer be allowed to die with dignity when our suffering goes on?". Here is an excerpt of that piece providing some more context:

Van Den Bleeken is the first serving prisoner to be granted the right to die because of psychological torment. Another Belgian inmate was euthanised last year but he suffered from an incurable physical illness. But, as a direct result of the ruling, 15 other Belgian prisoners have already applied for euthanasia, even though the death penalty was abolished in 1996.

The case has renewed controversy about state-sanctioned suicide and raised serious ethical concerns. But it also calls into question the very nature of punishment and whether murderers and rapists should “suffer” for their heinous crimes or get treatment and rehabilitation.

Medics warn that euthanasia must not become an alternative to treatment while prison reformers insist it must not become a back-door return to the death penalty.

The country’s leading euthanasia advocate is also opposed to Van Den Bleeken’s death. Professor Wim Distelmans, chairman of the Belgian Board of Control for Euthanasia ... said: “It is wrong to allow him to end his life like this.” But Nikhil Roy, Director of Programmes at Penal Reform International, said: “While people are in prison it is the responsibility of the prison authorities to provide adequate care and opportunities for rehabilitation. This case highlights the lack of adequate therapy for prisoners and the fact that mental health issues are widespread in prisons around the world.”

September 18, 2014 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, September 17, 2014

Seventh Circuit panel seemingly unmoved by feds appeal of probation sentence given to Beanie Babies billionaire

As detailed in this new Chicago Tribune article, "Prosecutors in Warner tax evasion case grilled by appeals court judges," federal prosecutors apparently did not get a warm reception at oral argument in the Seventh Circuit as they pressed their claims that a probation sentence given to a high-profile tax cheat was unreasonable. Here are the basics:

Federal prosecutors appealing the probation sentence of Beanie Babies founder Ty Warner faced a three-judge panel Wednesday to make the case for why the Westmont billionaire should get prison time for evading taxes.

Warner pleaded guilty last year to one count of tax evasion for failing to report more than $24 million in income and skirting $5.5 million in federal taxes on millions of dollars he hid for more than a decade at two Swiss banks.  Prosecutors had been pushing for a sentence of at least one year in prison, partly to deter others from committing the same crime. Sentencing guidelines had called for a prison sentence of up to 57 months.  His defense lawyers had argued that many tax evaders were allowed to join an amnesty program and that, even among those criminally charged and convicted, more than half who had been sentenced received probation.

Ilana Rovner, a U.S. appeals court judge for the seventh circuit, said Wednesday that she had a problem reconciling why the government was seeking to throw out Warner’s sentence when many tax evaders get probation or might not be prosecuted at all.  Also, the amount of tax he evaded was a fraction of what he has paid in taxes, she noted. Warner has already paid a civil penalty for not reporting the offshore accounts and restitution for what he owed in back taxes and interest....

Rovner also noted that prosecutors seem to be ignoring the “considerable discretion” of the district judge, Charles Kocoras, has in imposing a sentence.  He is a “veteran” judge who “obviously agonized” over the decision, she said.

Judge Michael Kanne noted that Warner’s guilty plea “saved the government some money” and that the appeals court “shouldn’t be the sentencing court.”

Judge Joel Flaum wondered why, if Warner’s conduct was so egregious, he was charged with only one count of tax evasion and why the government was seeking at minimum at least a year in prison.  Rovner chimed in, addressing Petersen: “You agreed to this.”

Judge Kanne noted that one count of tax evasion and a minimum prison sentence of a year “doesn’t sound like deterrence to me.”  Petersen responded that probation is a far more lenient sentence than the minimum of one year the government was seeking.

Anyone eager to hear the oral argument in full can access it via this mp3 link from the Seventh Circuit's website.  Notably, former US Solicitor General Paul Clement argued on behalf of the defendant (and I cannot help but wonder if he got some special Beanie Babies from the defendant in addition to the usual fees for his efforts).

Prior related posts:

September 17, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Sentencing and Interbranch Dialogue"

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

American legislatures generally delegate primary control over sentencing policy to one of two actors — trial judges or a sentencing commission.  In choosing between these actors, a legislature decides between two values, individualization or uniformity.  If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices.  If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant.  This Article proposes a different architecture for American sentencing systems, one that relies on inter-branch dialogue to transcend this conflict between individualization and uniformity.  In a dialogue-based system, judges and the sentencing commission are co-authors of the sentencing guidelines.  They establish sentencing policies through dialogic feedback loops, wherein the first actor systematically influences the decisions of the second, which in turn systematically influences the decisions of the first.

Such dialogue has different institutional forms in different guidelines regimes.  In a presumptive guidelines regime (where the guidelines are presumptively binding but judges can depart from them in unusual cases), dialogue takes place through trial judges departing from the guidelines, appellate courts reviewing those departures, and the sentencing commission incorporating this departure case law into the guidelines themselves.  In an advisory guidelines regime (where the guidelines are non-binding), dialogue takes place through the sentencing commission trying to convince judges to follow the guidelines, tracking whether and why judges depart, and updating the guidelines to win more judges’ adherence.

The benefits of a dialogic sentencing system are twofold.  First, it minimizes the conflict between individualization and uniformity that has plagued modern sentencing law. Second, it evolves sentencing policy in a morally rational direction by using judges’ departure decisions to change the guidelines where they create illogical or unjust results. Whether a dialogic sentencing system is ultimately possible will depend on political factors, especially legislatures’ willingness to delegate sentencing authority and refrain from issuing restrictive mandates.  Assuming that it is politically feasible, the federal government and most of the states with guidelines could adopt dialogue-based systems without major changes to their current institutions.  Indeed, several jurisdictions have already incorporated elements of dialogue into their sentencing systems.

September 17, 2014 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1) | TrackBack

Two folks working on criminal justice issues get MacArthur "genius" Fellowships

MacThe MacArthur Foundation announced its 2014 Fellowships (which are often called “genius grants”), and two recipients work on criminal justice issues.  Here is an overview of their work via the MacArthur announcement (with a link for more information):

Jennifer Eberhardt is a social psychologist investigating the subtle, complex, largely unconscious yet deeply ingrained ways that individuals racially code and categorize people, with a particular focus on associations between race and crime. Through collaborations with experts in criminology, law, and anthropology, as well as novel studies that engage law enforcement and jurors, Eberhardt is revealing new insights about the extent to which race imagery and judgments suffuse our culture and society.

Jonathan Rapping is a lawyer and legal defense advocate addressing failures of the U.S. criminal justice system to provide client-centered representation for indigent Americans. A large and growing number of those accused of felonies (by some estimates as high as 80 percent) cannot afford to pay for legal counsel. Though provided lawyers at no charge by the court system, often the accused are represented by public defenders burdened with too many cases and too few resources, resulting in over-incarceration or wrongful convictions that irreparably disrupt the lives of not only the indicted individuals but of their families and communities as well.

September 17, 2014 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack