Thursday, January 08, 2015

Ohio to delay scheduled executions early in 2015 after adopting another new execution protocol

This Columbus Dispatch article, headlined "State revises death penalty protocol, will delay executions," provides the latest news in the ever-dynamic Ohio execution story. Here are the details:

Ohio will switch its lethal injection protocol, adding thiopental sodium, a drug used previously, and dropping the two-drug regimen of midazolam and hydromorphone that caused problems in the last execution a year ago.

The Ohio Department of Rehabilitation and Correction said today until it secures supplies of pentobarbital, a drug already permitted, or thiopental sodium, the Feb. 11 execution of Ronald Phillips, and possibly others, will be postponed. The state used thiopental sodium from 1999 until 2011.

Gov. John Kasich will likely have to postpone the executions of Phillips, 41, of Summit County, and Raymond Tibbetts, 57, of Hamilton County, scheduled for March 12. The execution of Gregory Lott, 53, of Cuyahoga County, is scheduled May 14.

The first two executions would take place before House Bill 663, a new lethal injection law passed by the legislature and signed by the governor, takes effect in late March. The law allows the state to buy drugs from small compounding pharmacies, which mix batches of drugs to customer specifications. It also permits the state to keep secret the identities of drug suppliers because of security concerns....

The state had to file legal paperwork detailing the new drug protocol with U.S. District Judge Gregory Frost 30 days in advance of the next scheduled execution on Feb. 11. Frost has presided over most of the recent contested lethal injection cases filed on behalf of Ohio Death Row prisoners.

The change means that Dennis McGuire 53, will be the one and only person in Ohio to be put to death using the combination of midazolam and hyrdomorphone. During his Jan. 16, 2014, execution, McGuire choked, coughed, gasped and clenched his fists for about 20 minutes prior to succumbing to the drug mixture. His son and daughter, who watched their father’s troubled execution, subsequently sued the state, alleging his death was cruel and unusual punishment, a violation of the U.S. Constitution....

The controversy over McGuire’s executions resulted in the postponement of all remaining executions in Ohio last year. It will be the fifth time in 2 1/2 years that Phillips has had a new execution date. Dates in September and July last year, and November 2013 were delayed either by Kasich’s clemency actions or reprieves from Frost. Phillips was given a reprieve by Kasich to explore his desire to have transplant surgery to provide a kidney to his ailing mother, but the surgery never took place....

In addition, a lawsuit was filed late last year on behalf of Phillips, Tibbetts and two other inmates challenging the secrecy shrouding the revised execution process. Frost will also hear that lawsuit which claims that state officials, through the new law, are trying to stifle public debate about capital punishment by “seeking to punish, disarm, suppress and silence” opposition.

January 8, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Is California prepared to revoke parole for any sex offender with an iffy lie-detector test?

The question in the title of this post is prompted by this new AP story with the headline "California making sex offenders take lie-detector tests." Here are the basics:

For the first time, California is making paroled sex offenders take periodic lie-detector tests in response to several high-profile cases involving parolees who raped and killed.

State officials said this week that the stepped-up effort to prevent new sex crimes will help them better gauge which offenders are most dangerous and in need of increased supervision. All sex offender parolees also are required to participate in specially-designed treatment programs. Previously, only high-risk offenders had to undergo treatment.

California is not the first state to adopt the new policies. But with more than 6,000 sex offenders on parole, officials say it is by far the largest.

I have never closely followed the debates of the reliability of lie detector tests, but it appears that California has decided that they are reliable enough to become a mandatory part of parole requirements for sex offenders.   That said, I wonder if these lie-detector test will be considered reliable enough (by parole officials? by courts?) to alone provide a sufficient basis for revoking a sex offender's parole if he sometimes fails to "pass the test with flying colors"?

January 8, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

"Sentencing Rules and Standards: How We Decide Criminal Punishment"

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

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment.  Debates over sentence determinacy have focused on three questions: Who should decide punishment? What makes punishment fair?  And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards.  Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing Guidelines in order to correct the substantive and formal errors that result from rule-based decisionmaking, instead sentencing based on the § 3553(a) standard.  I argue that judges should be more willing to take departures and variances in cases involving particularly large or particularly numerous sentence adjustments.

January 8, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, January 07, 2015

Victim rights' back-story at heart of new Cassell-Dershowitz blood feud

Lots of criminal justice folks are buzzing about the extraordinary spitting match that has broken out between notable criminal law professors Paul Cassell and Alan Dershowitz.  Helpfully, Jacob Gershman has this effective Wall Street Journal posting which explains the interesting criminal justice issues that got this heavyweight fight started.  The piece is headlined "Behind Epstein Suit, a Tussle Over Due Process and Victims’ Rights," and here are excerpts:

The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention.  Drawing less coverage is the lawsuit itself — a case with the potential to expand the rights of crime victims during federal investigations.

The lawsuit centers on a 2007 agreement the federal government made with Mr. Epstein, a Florida financier suspected of sexually abusing multiple underage girls.  Under its agreement with Mr. Epstein, who had been the target of an FBI probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to a state felony charge of soliciting an underage prostitute.  Mr. Epstein pleaded guilty to the state charge in 2008 and served about 13 months behind bars.

Two of Mr. Epstein’s alleged victims then filed suit against the U.S. government in 2008, claiming federal authorities violated their rights under a 2004 law by keeping them in the dark about the non-prosecution deal.  They want a federal court to invalidate the agreement, a position fiercely contested by the government.  The law in question is the Crime Victims’ Rights Act, a statutory bill of rights for victims of federal crimes.  Among other things, the law grants victims a “reasonable right to confer with the attorney for the Government in the case.”

The case exposes tensions between the due-process rights of the accused and the rights of victims.  Attorneys representing the plaintiffs, former federal judge Paul Cassell and Florida lawyer Bradley Edwards, say at stake “is whether a federal statute protecting crime victims rights can be ignored with impunity or, as we argue, whether instead real remedies exist for its violation.”

U.S. prosecutors say the government had no obligation to confer with the alleged victims. Since they never charged Mr. Epstein with a crime, they argue, the plaintiffs don’t qualify as victims under that 2004 law.  And even if that right existed, the government argues, the Constitution’s due-process guarantees bar prosecutors from reneging on their agreement with Mr. Epstein.

In making their argument, prosecutors have cited a Dec. 2010 opinion issued by the Justice Department’s Office of Legal Counsel, which provides legal advice to the president and executive-branch agencies.  The opinion states that the “rights provided by the CVRA are guaranteed” only after “criminal proceedings are initiated through a complaint, information, or indictment.”

In a 2011 ruling, the federal judge presiding over the case, Kenneth A. Marra, sided with the plaintiffs’ interpretation of the law, writing that the CVRA “clearly contemplates pre-charge proceedings.”  And in a 2013 order, rejecting a motion by the government to dismiss the case, the judge wrote that a non-prosecution arrangement may be “re-opened” if it were reached in “violation of a prosecutor’s conferral obligations under the statute.”

The plaintiffs’ lawyers allege that the government failed to meet those obligations. In court documents, they accuse the U.S. attorney’s office of concealing the agreement “to avoid a firestorm of public controversy that would have erupted if the sweetheart plea deal with a politically-connected billionaire had been revealed.”

January 7, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Congressional Black Caucus saying it will focus on criminal justice reform

I expect the next few years to be dynamic with respect to federal criminal justice reform, and this inside-the-Beltway story provides another reason why:

The Congressional Black Caucus will focus on criminal justice reform, U.S. Rep. G.K. Butterfield of North Carolina said in a speech on Tuesday at a ceremony where he was sworn in as the group’s new chairman. “There is a well-founded mistrust between the African American community and law enforcement officers,” Butterfield said in a speech. “The statistics are clear. Video clips are clear.

“We recognize that the overwhelming majority of law enforcement officers put their lives on the line every day to protect our communities. Unfortunately, there are some officers who abuse the sacred responsibility to protect and serve by using excessive, and sometimes deadly force when a less severe response is warranted,” the North Carolina Democrat said. “The CBC will seek legislative action to reverse this terrible trend.”

The Congressional Black Caucus also would work to try to change sentencing laws, hold prosecutors to ethical standards, and ensure that defendants have competent lawyers, Butterfield added....

The Congressional Black Caucus welcomed five new members at the ceremony where Butterfield spoke, including one Republican, conservative Mia Love of Utah, and Democratic Reps. Alma Adams of North Carolina, Bonnie Watson Coleman of New Jersey, Brenda Lawrence of Michigan and Stacey Plaskett of the U.S. Virgin Islands.

As I noted in this prior post, Mia Love, the first black Republican woman ever elected to Congress, could be an especially important voice on these issues if she embraces the CBC's commitment to making these matters a priority for reforms.

A few prior related posts:

January 7, 2015 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 06, 2015

GOP apparently eager to have Eric Holder as AG for at least one more month

The (slightly) tongue-in-cheek title of this post is my reaction to the news reported in "this notable NPR report, titled "Senate Slow To Schedule Hearings For Attorney General Nominee."  In the piece, Carrie Johnson reports that Democrats have been pushing for confirmation hearings ASAP for Attorney General nominee Lorreta Lynch, but new GOP Judiciary Chair Charles Grassley has indicated that these hearings will not take place before the last week in January  at the earliest.

I am very eager for the Lynch hearings because they should provide an important window into what both the GOP-controlled Congress and the Obama Administration are thinking about on federal criminal justice issues for the next two years.  But I suspect the GOP is feeling a bit forced to take a go slow approach on how to best approach (and attack) nominee Lynch and Prez Obama on these fronts, in part because the GOP has real internal divisions on these issues and in part because racial issues and divides are especially salient in criminal justice reform discussions these days.  

So, because AG Eric Holder remains in his position until his successor is confirmed, the GOP Senate is right now functionally extending his term as the nation's top prosecutor and lawyer. 

January 6, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, January 05, 2015

"Any broad criminal justice reforms ... will fail without first fixing the indigent defense crisis."

The title of this post is one notable point stressed by David Carroll in this Marshall Project commentary titled "Gideon’s Despair: Four things the next attorney general needs to know about America’s indigent defense crisis." Here is how it is explained:

America’s deficient indigent defense services produce a myriad of seemingly disconnected problems throughout the greater criminal justice system.  Why do convicted persons have difficulty re-entering society upon release from prison?  They do so, in part, because their public advocates are prevented from continuing to fight on their behalf for better conditions of confinement, and treatment and reentry programs after they are incarcerated.  Why is the United States one of the few countries in the world that still relies on bail?  The answer is that many states and counties do not appoint counsel until after bail hearings (and often not until after arraignment or indictment).  Without an impetus for change, the bail system continues unabated.

Point to almost any criminal justice issue — wrongful convictions, over-incarceration, non-violent offenders serving life sentences, etc. — and the root problem will be a lack of true advocacy on the part of people of insufficient means charged with or convicted of crime. Just as a doctor treating only the visible symptoms of an underlying ailment may fail the patient, the focus of any number of well-meaning advocacy groups to address the countless issues plaguing criminal justice without concurrently reforming indigent defense services will result in half-measures and unsustainable policies.  Your own criminal justice goals therefore are dependent on you continuing, and indeed redoubling, Mr. Holder’s past efforts.

January 5, 2015 in Who Sentences? | Permalink | Comments (1) | TrackBack

Extraordinary review of messiness of Prez Obama's clemency push

Josh Gerstein has this extraordinary Politico piece which provides a terrific (and disconcerting) review of the Obama Administration's recent clemency activities.  The lengthy piece is a must-read for lots of reasons. It is headlined "Obama's drug-sentencing quagmire: Justice Department turns to ACLU, others to prepare thousands of commutation requests," and here is how it starts:

President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.

In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward.  But when Obama announced his annual commutations last month, only eight were given.  That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.

The piece includes lots of interesting and notable comments by various unnamed lawyers discussing how the President, the Justice Department, and the Clemency Project 2014 are handling matters. Here are excerpts with some of these quotes:

With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing.

“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”

“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added....

[DOJ] officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases....

Some liberal-leaning lawyers and clemency advocates ... say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.

“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said.  “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”...

One benefit to the administration of its current approach of working with outside groups is that it could mute criticism from advocates wrapped up in the effort — at least as long as there seems to be a prospect of a meaningful wave of commutations.  “They’ve co-opted all the people who would usually be critics,” said one lawyer close to the project.  “You have that dynamic in play, and I’m not sure that’s a good thing.”

The Clemency Project groups insist their involvement hasn’t silenced them.

Though I am not too concerned about clemency critics being co-opted through the Clemency Project, I am concerned about what will be a poor allocation of pro bono lawyering efforts if 1,500 lawyers spend months and years working on clemency applications for thousands of offenders if Prez Obama ends up granting commutations to only a few hundred prisoners. I genuinely believe that an army of 1,500 lawyers working on aggressive for months and years on federal sentencing litigation — perhaps in marijuana cases or attacking some extreme mandatory minimums through habeas actions or other means — could produce jurisprudential development that could end up helping many more than a few hundred defendants.

January 5, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Former District Judge Paul Cassell at center of two big new victim-rights stories

ImageLong-time readers of this blog are surely familiar with the name Paul Cassell, perhaps primarily for his notable sentencing rulings back when he was a federal district judge concerning mandatory minimums and the impact of Blakely on the federal sentencing guidelines.  Long-time criminal justice academics are familiar with his long-ago scholarly work on Miranda and related police-practices jurisprudence and modern victim-rights advocates know Paul as one of the leading modern (court-focused) advocates for the interests of crime victims.  

With all that background (and the disclaimer that I have worked with Paul on various issues over the last decade and greatly respect his talents, energies and perspectives), I am now fascinating to see Paul Cassell's name at the forefront of two big new victim-rights stories.  Here are links and the start of articles about these stories:

From the Washington Times here, "Loretta Lynch questioned over secret deal depriving fraud victims of $40M":

More than a year before President Obama nominated federal prosecutor Loretta Lynch to be attorney general, a former federal judge quietly called on Congress to investigate her U.S. attorney’s office for trampling on victims’ rights.

Paul Cassell, a law professor at the University of Utah, said Ms. Lynch’s office, the U.S. Attorney for the Eastern District of New York, never told victims in a major stock fraud case that a culprit had been sentenced — denying them a chance to seek restitution of some $40 million in losses. Mr. Cassell, in written remarks to a House Judiciary Committee panel in 2013, said if prosecutors were using secretive sentencing procedures to reward criminals for cooperating with them, it could violate the Crime Victims Restitution Act.

From the Salt Lake Tribune here, "Utah law professor claims British prince, well-known attorney had sex with teen ‘sex slave’":

University of Utah law professor Paul Cassell has come under fire for filing a motion in a victims’ right suit that claims a client was forced as a girl to be a "sex slave" who allegedly was made available to a well-known attorney and a member of the British royal family.

The motion filed Friday in a federal court in Florida alleges that a woman identified as Jane Doe #3 was sexually exploited beginning at age 15 by billionaire financier Jeffrey Epstein, who also loaned her for sex to politically connected and powerful people — including Harvard Law School professor emeritus Alan Dershowitz and Prince Andrew, a son of Queen Elizabeth II.

Both men have denied the allegations, and Dershowitz is threatening to initiate disbarment proceedings against Cassell and Bradley Edwards, a Florida attorney who also represents Jane Doe #3, according to The Wall Street Journal.

For lawyers and politicians, the story about criticisms of the Attorney-General-nominee is much more important and consequential.  But the teen sex slave story is sure to get a whole lot more attention — and that story could, I think, end up making it difficult for Paul Cassell to be called to testify or otherwise be a visible voice in AG-nominee Lynch's upcoming confirmation hearings.

January 5, 2015 in Criminal justice in the Obama Administration, Current Affairs, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Is Obama Finally Ready To Dial Back The War On Drugs?"

Meme1The title of this post is the headline of this lengthy Forbes piece by Jacob Sullum, which provides preview of sorts of of some of the biggest federal criminal justice issues to keep an eye on in the year to come. The piece merits a full read, and here are excerpts:

Some critics of the war on drugs — a crusade that Obama had declared “an utter failure” in 2004 — predicted that he would improve in his second term.  Safely re­elected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective.  As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years.  Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:

Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting state­licensed growers and retailers.  Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.”...

Federal Marijuana Ban.... Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana’s Schedule I status, something no sitting attorney general had done before.

Sentencing Reform.  Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums.  Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year....

Clemency.  After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions.  Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations.  Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go....

A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division.  A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration.  The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.

If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence.  He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress.  And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success....

If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization.  Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.

This piece reviews some important basics, though hard-core sentencing fans know that there is a lot more the Obama Administration could be doing to radically reshape the battlefield in the modern federal drug war.

On the marijuana front, for example, DOJ could (and I think should) play an significant role defending Colorado as it gears up a response to the recent Supreme Court suit brought Nebraska and Oklahoma attacking its marijuana reform efforts. In addition, DOJ could (and I think should) be willing to interpret broadly the recent provisions enacted by Congress precluding it from using funds to interfere with state medical marijuana reform efforts.

On the broad drug war front, Prez Obama and DOJ could not only support the Smarter Sentencing Act but even try to give renewed life to the Justice Safety Valve Act. The JSVA, which Senator Rand Paul introduced and robustly promoted, would effectively reform the operation of all mandatory minimum sentencing provisions. Also Prez Obama and DOJ, especially in light of renewed concerns about racial biases in criminal justice systems, could (and I think should) return to the issue of crack sentencing reform. Specifically, given the apparent success of the Fair Sentencing Act of 2010, which only reduced the crack-powder disparity from the ridiculous 100-1 ratio to a ghastly 18-1, the Prez ought to get behind what I would call the Fully Fair Sentencing Act to eliminate any and all crack-powder sentencing disparity completely.

January 5, 2015 in Clemency and Pardons, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, January 03, 2015

"How did a law to regulate heroin traffic turn into the costly, futile War on Drugs?"

150102_schneider_heroin_wikimedia1The title of this post is the subtitle of this lengthy Politico magazine feature carrying the headline "A Hundred Years’ Failure." These titles highlight the basic themes of an article that reviews lots of interesting parts of the modern drug war's back-story, giving special emphasis to opiates and heroin along the way.  Here are a few excerpts from a piece that merits a read in full:

Twenty-five years ago, the stated goal of the United States’ anti-narcotic efforts according to the Department of Justice was to “disrupt, destroy and dismantle drug trafficking enterprises.” That same year, the U.S. government pumped almost $8 billion into anti-drug efforts, including $600 million in prison construction alone. It was just a typical fiscal year during the height of the drug war. But two and a half decades later, despite this dizzying spending, we don’t need a drug czar to tell us—even though one of them has—the war on drugs, by its own measures, has been a century-long failure.

A hundred years ago this month, the U.S. government started this fight to rid us of the scourge of opiates. Today, not only have we failed to control drug demand, an entirely new breed of opiate epidemic has flourished in the face of the most draconian drug laws in the world. Aided by aggressive Big Pharma marketing and enthusiastic “pain specialists,” opiate abuse has simply taken on a new shape, moving from urban enclaves and overrunning pockets of New England and the South, from rural Vermont to the suburbs of Dallas, that have little history of widespread drug abuse. Heroin today is cheaper and purer than it was 50 years ago. That’s to say nothing of the 700 percent increase in incarceration of American citizens in the past four decades, the distribution of nearly $450 million worth of military equipment that is used by local and state law enforcement agencies (that “militarization of the police” you’ve been reading so much about lately), and the creation of a wasteful, labyrinthine bureaucracy dedicated to what has proven a perhaps impossible goal: The eradication of drugs....

At the beginning of the 20th century, everyone’s medicine cabinet contained opium in some form. Patent medicines mixed alcohol and opium, and women used them for menstrual cramps, coughs and other minor symptoms, as well as for infants’ teething pains. Aging Civil War veterans self-injected morphine to soothe old wounds, and physicians dosed patients liberally with opium pills and morphine. Opium smokers, usually Chinese, but also habitués of the urban underworld and the occasional slumming college student, were the most common recreational users....

During the Progressive Era, a culture war was raging over sexuality, alcohol and modern life—as seen in efforts to censure pornography and eliminate “red light” districts—and prohibition offered the best hope of legislating moral certainty. While alcohol prohibition had the largest domestic constituency, drug prohibition fit with foreign policy interests. Years of lobbying by religious groups in both the United States and Britain, who were appalled at opium smoking in China and places to which the Chinese emigrated, culminated in the 1912 Hague Convention, where a dozen countries agreed to regulate the international narcotics traffic and signatories promised to limit opiate use in their own countries....

After a century of aggressive policing, mandatory minimums and enforcement that disproportionately targeted the most marginalized of American citizens, the failure of the war on drugs is ultimately a cautionary tale about pursuing an agenda at any cost—financial or human. From the founding of a vast bureaucratic infrastructure to support the new war, to the hundreds of millions of dollars spent on military police equipment, to the $50 billion spent annually on incarceration, the story of fighting addiction in America has brought out its mirror image: An irrational dependence, despite all logic to the contrary, on a steady flow of government cash and brute enforcement.

We should have just said no.

January 3, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, January 01, 2015

Chief Justice promises fully electronic SCOTUS by 2016 in his 2014 year-end report

FuturamanAs reported here by Lyle Denniston at SCOTUSbog, the US Supreme Court "is moving toward a full and free-access system for all documents filed in cases before the Justices — a system expected to be working 'as soon as 2016,' Chief Justice John G. Roberts, Jr., revealed in his annual year-end report on the federal judiciary."  Here is a bit more about this exciting news:

The Court already receives some of its filings electronically, but the present arrangements do not include “all filings at the Court,” in the language the Chief Justice used to describe what will be available by 2016.  That, he said, will include “petitions and responses to petitions, merits briefs, and all other types of motions and applications.”  Public access to all of these materials will be available on the Court’s website without cost, he stressed.

The Chief Justice’s annual report was dominated by a theme of technological advances and their impact on the operation of the courts.  He acknowledged that, because of special concerns about security and other operating limitations for the courts, the judiciary has not been moving as rapidly as some other sectors of society in modernizing its information systems.  “The courts will often choose to be late to the harvest of American ingenuity,” he commented.

When the new system is in place and operating, according to Roberts, filings will still be made in paper form, but there will be a requirement for electronic versions when filed by any party that is represented by an attorney.  Those, like prison inmates, who are too poor to afford lawyers and filing fees and thus are allowed to file papers making their own pleas without cost, will not be required to make electronic submissions.  The Court staff will scan those so-called “pauper” filings and upload them to the Court’s system so that those, too, will be available for public access....

The year-end report also discussed the progress of the lower federal courts in adopting and improving the electronic case-filing system that has been in place since 2001.  More than one billion documents can now be retrieved from that system, the Chief Justice noted.  A “next generation” improvement in that system is now being developed within the judiciary, he added.

The full year-end report from the Chief Justice of the United States can be accessed at this link. It starts with this amusing paragraph:

On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics!  The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another.  Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”

Kudos to the Supreme Court for being committed to having all its materials on-line for free access to all and to the Chief Justice for effectively explaining the work being done to make this commitment a reality.

January 1, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, December 31, 2014

Big 2014 data (and big 2015 plans?) from US Sentencing Commission

The United States Sentencing Commission has closed out 2014 with a release of lots of notable new sentencing data and notice of an notable meeting to kick off 2015.  Here are the data basics/links and the meeting notice via the USSC website:

Final Crack Retroactivity Data Report: This report is the final data report concerning motions for retroactive application of Amendment 750, incorporating the provisions of the Fair Sentencing Act of 2010 into the guidelines.

Fourth Quarter FY 2014 Sentencing Update

Notice of Public Meeting: January 9, 2015: The Commission will hold a public meeting to vote on publishing proposed guideline amendments. A presentation will also be given on economic crime.

There are lots of notable stories to be found in these data (and to be anticipated with the USSC's noticed meeting).  But most notable, I think, is the quarterly report showing that for all of Fiscal Year 2014 only 46.3% of sentences were imposed within the calculared guideline range and in the final quarter of FY2014 only 43.6% of sentences were within-guideline sentences.  in other words, throughout 2014, a non-guideline sentence became more the norm in federal sentencing than a within-guideline sentence.

Critically, these data are surely skewed significantly by the decision by the US Sentencing Commission in January 2014 to lower drug guideline sentences across the board by two levels (combined with the Justice Department's willingness to allow sentencing judges to give effect to the lowered guidelines before they took effect officially on November 1, 2014).   Now that the lowered guidelines are officially in place, we might expect to see more within-guideline sentence imposed in FY 2015.  But, if the US Sentencing Commission announces in its early 2015 another significant amendment to reduce certain guideline ranges, this pattern could repeat.

In other words, happy data new year from (and to) my favorite judicial branch agency.

December 31, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Outgoing Maryland Gov commutes final four state death sentences to life

As reported in this CNN article, "Outgoing Maryland Gov. Martin O'Malley took the state's last four inmates off death row Wednesday, commuting their sentences to life in prison without parole in one of his final acts in office."  Here is more:

The move comes as the Democrat considers a run for president — a long-shot bid that many Democrats only expect to gain steam if Hillary Clinton opts not to run.

O'Malley's office announced the move in a release Wednesday morning, noting that the state's legislature had abolished the death penalty with a law that took effect in May 2013 and that the state's courts and attorney general have questioned whether the state has legal authority to carry out death sentences that were already imposed.

"In the final analysis, there is one truth that stands between and before all of us," O'Malley said in a statement.  "That truth is this — few of us would ever wish for our children or grandchildren to kill another human being or to take part in the killing of another human being. The legislature has expressed this truth by abolishing the death penalty in Maryland."

The four inmates whose sentences were commuted are Vernon Lee Evans Jr. and Anthony Grandison Sr., who were convicted of the 1983 contract killing of two witnesses scheduled to testify in a federal drug trial; Heath William Burch, convicted of killing an elderly neighbor couple in 1995; and Jody Lee Miles, convicted of robbing and shooting a theater manager in 1997.

O'Malley said in the statement that he'd met with the families of the victims of the four convicted killers whose sentences he commuted, and said they would suffer through "the additional torment of an un-ending legal process."

"In my judgment, leaving these death sentences in place does not serve the public good of the people of Maryland — present or future," O'Malley said.

Prior relates posts:

December 31, 2014 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"

The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:

This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes.  The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.

The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others.  The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.

December 31, 2014 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

More notable new posts from the Collateral Consequences Resource Center

Because topics covered at the Collateral Consequences Resource Center are so interesting and get little attention in the mainstream media (or many other places in the blogoshere), I plan to continue noting in this space all the the notable posts regularly appearing at CCRC.  Here are a bunch more posts of notes from CCRC of as 2014 is winding down:

December 31, 2014 in Clemency and Pardons, Collateral consequences, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, December 29, 2014

Big talk from Charles Koch about big (money) criminal justice reform efforts

This lengthy article from the Wichita Eagle is garnering attention because of its report on who is now paying a lot of attention to criminal justice reform.  The piece is headlined "Charles Koch’s views on criminal justice system just may surprise you," and here are excerpts:

Of all the contentious history between Koch Industries and the U.S. government, the Corpus Christi, Texas, case from 1995 is the one that Charles Koch remembers most vividly. A federal grand jury indicted his company on 97 felonies involving alleged environmental crimes at an oil refinery.

Prosecutors dropped all but one of the charges six years later, after the company spent tens of millions of dollars defending itself. Ultimately, Koch Petroleum Group agreed to pay a $10 million settlement.

“It was a really, really torturous experience,” said Mark Holden, Koch’s chief counsel. “We learned first-hand what happens when anyone gets into the criminal justice system.” Holden said Charles Koch wondered afterward “how the little guy who doesn’t have Koch’s resources deals with prosecutions like that.”

No one at Koch wants to re-litigate the Corpus Christi case, Holden said. But it prompted Charles Koch to study the justice system — both federal and state — wondering whether it has been over-criminalized with too many laws and too many prosecutions of nonviolent offenders, not only for him but for everybody. His conclusion: Yes, it has.

Ten years ago, he began giving money to support efforts by the National Association of Criminal Defense Lawyers to help train defense lawyers and reverse what some see as a national trend to get tough on crime, which has resulted in the tripling of the incarceration rate since the 1980s and has stripped the poor of their rights to a legal defense. He’s going to give more to that effort, he said.

“Over the next year, we are going to be pushing the issues key to this, which need a lot of work in this country,” Koch said. “And that would be freedom of speech, cronyism and how that relates to opportunities for the disadvantaged.” The nation’s criminal justice system needs reform, “especially for the disadvantaged,” Koch said, “making it fair and making (criminal) sentences more appropriate to the crime that has been committed.”...

The Corpus Christi case led Charles Koch and his company to give money, starting about 10 years ago, to the National Association of Criminal Defense Lawyers. The company and the association would not say how much Koch has given, but the amount totals in the seven figures, Holden said.

Campaigning against overcriminalization has prompted Koch to form unofficial alliances with people and organizations that usually champion liberal causes, including political activist George Soros and the American Civil Liberties Union, who are also campaigning for a reduction in prison populations....

Holden, Koch’s counsel ... said laws allow many crimes to be expunged from someone’s record. But that’s a tricky legal process, and many poor people don’t have the money to hire lawyers, he said. It makes no sense to give a life sentence like that to nonviolent offenders after they’ve served time, Holden said. “If you have a nonviolent felony and you get out of prison, we as a country can’t forgive and forget?” he asked.

Some prior related posts on Koch family efforts in support of criminal justice reform:

December 29, 2014 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, December 26, 2014

Pennsylvania chief justice blames federal public defenders for death penalty problems

I highlighted a few weeks ago in this post the first article in a local series about the high costs and low productivity of the Pennsylvania death penalty system. Thanks to a helpful reader, I just now noticed this interesting final piece in the series headlined "State's chief justice cites 'meddling, intrusion' in death penalty cases." Here are excerpts:

The state's top judge, speaking after a Reading Eagle series examined the dysfunctional Pennsylvania death penalty system, blamed its failings largely on what he described as unethical intrusions and meddling by a group of federally funded attorneys.

Chief Justice Ronald D. Castille of the Pennsylvania Supreme Court made the comments in a telephone interview Thursday, the day after the newspaper's four-day series "When Death Means Life" ended. Also that day, state Sen. Daylin Leach, in a separate interview, said he believed the state was not getting its money's worth out of the death penalty and that there was momentum to abolish it.

The series delved into a system in which 429 death warrants have been signed since 1985 but only three people have been executed. Others who have extensive dealings with the system and read the newspaper stories spoke of the death penalty's expense and necessity, and of the need for caution in modifying its appeals process. The newspaper's research produced an estimate that the death penalty in Pennsylvania has cost more than $350 million, gave a glimpse of life on death row and detailed two death penalty cases....

[T]he Federal Community Defender Office [is] the group Castille singled out for criticism. The chief justice said the ... the organization prolongs death penalty proceedings, using unethical delaying tactics and summoning many experts.  

Beyond that, he said, the FCDO's mission is supposed to be federal in nature. Funded by $17 million a year in federal taxpayer funds, the federal office has injected itself into many Pennsylvania-jurisdiction death row cases, creating more costs for state taxpayers, Castille said. "Tremendous extra costs," Castille said....

Paid for by state taxes, the death penalty is essentially a government program, said Leach, a Montgomery County Democrat who plans to reintroduce a bill next legislative session to abolish capital punishment.  "Is this program getting us our money's worth? There's no way you can look at the death penalty and say that it is," Leach said.  "The death penalty is far more expensive than life in prison."...

Richard Long, executive director of the Harrisburg-based Pennsylvania District Attorneys Association, said he didn't think anyone disputed the fact that the system was expensive. "We have to be careful that we don't compromise public safety and doing the right thing strictly because of dollars and cents."...

Gov.-elect Tom Wolf said that when he takes office in January, he'll place a moratorium on executions until concerns about the state's death penalty system, voiced by the state Supreme Court and the American Bar Association, are properly addressed.

Three years ago Pennsylvania lawmakers ordered a government-run study of the state's death penalty system, and though that study was created with a two-year deadline, it's still not done.  Wolf said that once it's complete, he'll use the findings to help guide his actions regarding the death penalty....

Castille said it was up to the Legislature, not the courts, to change the system. But, he said,  "The only way you will be able to change the system is to get the Federal Community Defender Office out of the system."  Castille is nearing the end of his tenure as chief justice.  Having reached the high court's mandatory retirement age of 70, Castille will retire at the end of the month.

I am inclined to assert that Chief Justice Castille's criticisms of the public defenders amounts to "shooting the messenger." But given that Pennsylvania cannot find its way to carrying out any death sentences, I suppose I should just say that Chief Justice Castille is blaming the messenger.

December 26, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

South Dakota legislator suggests using drug war proceeds to fund public defenders

This local article, headlined "Hickey: Use seized drug money for public defender," reports on some notable public advocacy by a public official concerning public defenders in South Dakota.  Here are the details:

A Sioux Falls lawmaker wants to use seized drug money to help pay the legal defense bills of those who can't afford a lawyer, but the state's attorney general says counties should look elsewhere to save money on court-appointed attorney costs.

Rep. Steve Hickey, R-Sioux Falls, says the money in the state's Drug Control Fund is correctly used to tackle the problem of drug use, but he says he worries about the legal costs counties bear after the arrest. The fund is made up of money seized during drug investigations and money from the sale of seized property, such as vehicles.

"My thought is that we should put some of that money not just into catching more bad guys, but put some of it into the cost of defending them we're stuck with afterward," Hickey said. "We get excited about sobriety checkpoints and saturation patrols, but after those tickets get written, someone has to pick up the tab."

Hickey's bill would ask for a more thorough accounting of the money seized by law enforcement from suspected drug dealers and direct between 25 percent and 50 percent of it toward the legal fees amassed by counties. The fund is administered by Attorney General Marty Jackley's Office, which decides where the seized money is spent. "It seems to me that there's very little oversight," Hickey said....

Counties are legally obligated to offer court-appointed lawyers to the indigent. Local governments can ask that legal fees be repaid, but many bills go unpaid, either because defendants don't earn enough or own enough to pay or because they go to prison or jail.

Hickey's proposal comes alongside growing concerns over court-appointed attorney fees in Minnehaha County. Commissioners want judges to consider income guidelines when deciding whether to appoint a public defender, and they've offered a county employee to check defendants' income statements.

The state's largest county has spent $3.8 million on indigent defense this year, but reimbursements from defendants stand at $824,000. The county also has more than $26 million in liens on defendants who haven't paid their bill.

Commissioner Cindy Heiberger hasn't seen Hickey's proposal, but says any discussion about helping the counties that shoulder the burden of legal defense is welcome. "It sounds really good on the surface. Anything we can use to pay for court-appointed attorneys or court costs is something we should talk about," Heiberger said. But, she cautioned, "when we're taking money from one pot and moving it to another, we need to make sure the logistics make sense for everyone."

The notion of using seized drug money to pay for criminal defense doesn't sit well with Attorney General Marty Jackley. The drug control fund consists of money seized from suspected drug sales and other cash collected from auctioning off seized vehicles and other property. "I do not support using the profits of criminals to defend their activities," Jackley said.

The money pays the drug testing bills for cities and counties, Jackley said, and the remaining money is used to buy vehicles, camera systems and other items for local police and sheriff's departments. Giving some of the money to counties for indigent defense could force local agencies to bear the cost of drug testing and reduce the availability of funds for equipment upgrades and replacements.

In 2013, $70,514 was awarded from the drug control fund for law enforcement and prosecution costs in Sioux Falls and Minnehaha County. Overall in 2013, $643,722 was awarded from the drug control fund to local agencies. Drug control money pays an average of $60,000 per month to local law enforcement for drug testing, according to DCI records.

December 26, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, December 24, 2014

"Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction, 2009-2014"

States-rethink-collateral-consequences-infographic-v3The title of this post is the title of this notable new report from The Vera Institute of Justice. Here are excerpts from the report's summary:

Collateral consequences of criminal convictions are legion and present significant and often insurmountable barriers to housing, public benefits, employment, and even certain civil rights (e.g., voting rights) for people with criminal histories well after sentence completion.

Lessening the burden of post-punishment penalties has become a matter of significant bipartisan state-level legislative activity in recent years.  In this report, Vera’s Center on Sentencing and Corrections provides (1) concise summaries of representative legislation, (2) an analysis of the limitations of current reforms, and (3) recommendations for making future efforts sustainable and comprehensive.

Since 2009, forty-one states and the District of Columbia, enacted 155 pieces of legislation to mitigate collateral consequences for people with certain criminal convictions.  In reviewing this legislative activity, Vera found that states have pursed one or a combination of seven broad approaches to reform.  They created or expanded expungement and sealing remedies; issued certificates of recovery; allowed for offense downgrades; built relief into the criminal justice process; ameliorated employment-related collateral consequences; improved access to information; and addressed discrete collateral consequences.

While efforts to remove or alleviate the impact of collateral consequences may indicate a broader shift in how the criminal justice system views law-breakers, vast numbers of post-punishment penalties remain in place and a closer look at recent legislation suggests that efforts do not go far enough.  In particular:

  • Reforms are narrow in scope;
  • Relief mechanisms are not easily accessible;
  • Waiting periods are long in many cases; and
  • New rules restricting third-party use of criminal history are difficult to enforce.

December 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack