Wednesday, February 19, 2014
Curious DOJ clemency campaign continues through meeting with defense groups
This notable NPR story, headlined "Justice Dept. Asks For Help Finding Prisoners Who Deserve Clemency," reports on the latest development concerning the curious (though encouraging) new DOJ push for clemency candidates. Here are the details:
The second-in-command at the Justice Department met Tuesday with defense lawyers and interest groups to identify the cases of worthy prisoners who could qualify for clemency.
The initiative by Deputy Attorney General James Cole follows a speech he gave last month suggesting the White House intends to make more use of the president's power to shorten prison sentences for inmates who have clean records, no significant ties to gangs or violence, and who are serving decades behind bars for relatively low-level offenses.
Cole wants to enlist lawyers to help solicit and prepare clemency requests. It's part of a broader effort to stop spending so much money incarcerating people that it squeezes the public safety budget. A Justice Department spokesman says Cole "wants to ensure that individuals like the eight whose sentences the president commuted in December have access to attorneys to help them present their cases."
Longtime followers of the pardon power have criticized President Obama's relatively stingy approach over five years in office. They also suggest that backlogs in the Justice Department's Office of Pardon Attorney might get worse if the call for more prisoner petitions takes hold. But the Justice spokesman says Cole has made this effort a top priority and that he's instructed the pardon attorney to do the same, taking some steps to handle any influx of clemency requests in the months ahead.
Representatives from the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the Federal public defender program and Families Against Mandatory Minimums had been scheduled to attend the meeting at Justice Department headquarters. Mary Price of FAMM, one of the attendees, says she came away feeling "really encouraged."
"We look forward to working together with them and others to help identify potential commutation cases and ensure prisoners have trained pro bono counsel to submit focused petitions for the meaningful consideration the Deputy Attorney General has pledged they will receive," Price says.
Some recent and older posts concerning federal clemency practices:
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
- Deputy AG Cole's remarkable remarks to the NYSBA
- "How to Awaken the Pardon Power"
- New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
- "Clemency Reform: We're Still Waiting"
- New York Times editorial assails Prez Obama's considerable clemency failings
- Updated numbers on President Obama's disgraceful clemency record
- ProPublica reveals more ugliness in federal clemency process
- Reflecting on Obama Administration's latest "half-way" approach to clemency
After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage
As reported in this local piece, an "84-year-old Catholic nun will spend nearly three years in federal prison for breaking into one of the U.S. government's most secure facilities and helping deface a uranium-processing building with human blood, a federal judge ruled Tuesday." Here is more about the fascinating sentencing conclusion to a high-profile case of law-breaking civil disobedience:
Megan Rice, who turned 84 on Jan. 31, and fellow anti-nuclear activists Michael Walli, 64, and Greg Boertje-Obed, 58, were convicted in May of sabotaging the plant in Oak Ridge, Tenn. All three are members of the Plowshares movement of Christian pacifists.
U.S. District Judge Amul Thapar in Knoxville, Tenn., sentenced Rice to 35 months in prison for her role in the July 28, 2012, break-in and protest. The judge sentenced Walli and Boertje-Obed both to five years and two months in prison. Previously, Thapar had ordered the trio to pay nearly $53,000 in restitution for damaging U.S. government property. In addition, Walli and Boertje-Obed will have three years of supervised release after their prison terms. The two men received longer sentences based on their past criminal history.
During a four-hour hearing Tuesday, Rice pleaded with the judge not to grant her leniency. "Please have no leniency on me," she said. "To remain in prison for the rest of my life would be the greatest honor you could give me."
Thapar didn't oblige but did say that breaking the law isn't the right way to pursue political goals. He said he hoped that a significant prison sentence would deter others from following the same path and bring them "back to the political system I fear that they have given up on."
The protesters picked late July 2012 to break in to the Y-12 National Security Complex because it was close to the dates when the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan, during World War II. The three cut through fences and made it through multiple layers of security. They spent more than two hours in a restricted area and had time to splash blood on the outside of the building where the government processes weapons-grade uranium before security personnel apprehended them....
The three have garnered worldwide attention. Thousands of letters of support have poured into the court from around the world. Those include letters from groups such as the Union for Concerned Scientists. While acknowledging the three were convicted of a federal crime, they exposed serious security weaknesses at Y-12, the group said.
Edwin Lyman, a nuclear security expert at the Union of Concerned Scientists, said in January that the protesters did the nation a public service. "We think, even though they were convicted of a federal crime, there are mitigating circumstances and they made the country safer," Lyman said.
The government has taken the case seriously. The three have been in custody since their conviction, and prosecutors recommended sentences of six to nine years.
A key issue Tuesday was how the judge should follow federal sentencing guidelines. Lawyers for the activists that argued the time they already have served is sufficient punishment.... During the hearing, the judge struggled with how to handle the guidelines. "At some point, the law has to command respect, and there is a lawful way to change it," Thapar said. But he also suggested that Rice's past good works should play a role and wasn't sure how to fit those into the guidelines. He called a recommended sentence of 6½ years for Rice "overkill."
Assistant U.S. Attorney Jeffrey Theodore ... contended the trio's actions were "serious offenses that have caused real harm to the Y-12 National Security Complex." [And] "they have shown no remorse for their criminal conduct," he said.
Recent related posts:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
- Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
February 19, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
"Will There Be a Neurolaw Revolution?"
The question in the title of this post is the title of this new paper by Adam Kolber now available via SSRN. Here is the abstract:
The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility.
There will, however, be a neurolaw revolution of a different sort. It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways, three of which I describe here: First, as new methods of brain imaging improve our ability to measure distress, the law will ease limitations on recoveries for emotional injuries. Second, as neuroimaging gives us better methods of inferring people’s thoughts, we will have more laws to protect thought privacy but less actual thought privacy. Finally, improvements in artificial intelligence will systematically change how law is written and interpreted.
Tuesday, February 18, 2014
Execution news in many states thanks to drug shortages and lethal injection litigation
I have gotten more than a little fatigued trying to keep track of all the legal and political developments in states trying to get access to the drugs they need to carry out planned executions. Nevertheless, a new round of headlines about this topic filled up my news feeds this morning, so I could not resist reporting some of the news through a these stories and links:
Monday, February 17, 2014
Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
This new report from The Guardian, headlined "84-year-old nun who broke into Tennessee weapons plant awaits fate," spotlights a high-profile federal sentencing case (previously discussed in this post) that is scheduled for final sentencing tomorrow morning. Here are excerpts:
An 84-year-old nun who broke into a Tennessee weapons plant and daubed it with biblical references, will learn on Tuesday whether she will spend what could be the rest of her life in prison.
Two weeks ago, at a sentencing hearing, a judge ordered Sister Megan Rice and her co-defendants, two other Catholic anti-nuclear activists, Greg Boertje-Obed, 58, and Michael Walli, 64, to pay $53,000 for what the government estimated was damage done to the plant by their actions.
All three defendants were convicted of sabotage after the break-in at the Y-12 nuclear weapons plant at Oak Ridge, Tennessee, on 28 July 2012. The charge, under a statute of the US criminal code used against international and domestic terrorism, carries a maximum sentence of up to 30 years. The government have asked for the trio to be given prison sentences of between five and nine years. They would have learned their fate in the January hearing, but it was cut short due to bad weather and rescheduled for Tuesday.
In an interview with the Guardian from Knox county jail as she awaited her fate, Rice said she hoped US district judge Amul Thapar would seize the opportunity to “take his place in history” and sentence them in a way that would reflect their symbolic, non-violent actions – actions she said that were intended to highlight the US stockpile of nuclear weapons they believe is immoral and illegal.
“I hope he will answer his conscience,” said Rice, in an interview 24 hours before the last sentencing hearing. “He knows what to do.” She and her co-defendants have been in prison, mostly in Ocilla, Georgia, for eight months, a period of time her lawyers say is sufficient punishment for the break-in.
Thapar has received hundreds of letters and a 14,000 signature petition pleading for leniency in this case, including from Rice’s religious order, the Society for the Holy Jesus, which asked for a reduced or suspended sentence given “her age, her health and her ministry”. Lawyers for Rice, Boertje-Obed, a Vietnam veteran from Washington DC and Walli, a painter from Duluth, Minnesota, have asked for leniency and say the trio admitted have what they did.
The US government contends that none of the defendants arguments merit leniency. At the hearing on 28 January, it said they did not accept they had committed crimes, took no responsibility for them, showed no contrition and, then, during the trial, proceeded to argue against the laws they had broken. It has described the three, who have previous convictions related to their protest activities, as “recidivists and habitual offenders”.
Jeffery Theodore, assistant US attorney general for the eastern district of Tennessee, told the court that the three “pretty much celebrated their acts”. At the January hearing, he described their argument that they were trying to uphold international law as “specious and disingenuous” and said there had been no single case where international law has been seen as justification for breaking US laws. The judge agreed with Theodore that the defendants were not remorseful and that they didn’t accept any responsibilities for their crimes, and said they would not be given downward departures for admitting responsibility.
At the January hearing, four character witnesses for the defendants gave powerful testimony about their strong Christian and pacifist principles, their commitment to helping others and their dedication to their cause. They, and the scores of supporters crowded into the courtroom, also provided an insight into the close-knit nature of the anti-nuclear faith community.
Regular readers are surely not surprised to hear that I find this federal sentencing case very interesting for a number of reasons. But they may be surprised to learn that US District Judge Amul Thapar used the sentencing break/delay as an opportunity to request that I submit a "friend-of-the-court brief" to assist the Court as it tackled some challenging issues concerning the departure requests made by one of the defendants. I was honored and grateful to be able to provide such assistance directly to the court, and below I have uploaded Judge Thapar's order (which requests my submission at the end) and my submission in response:
Order in US v. Walli: Download MEO in CR-12-107 with Friend Brief Request
My submission in US v. Walli: Download Berman Friend Brief for Judge Thapar
Recent related post:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
February 17, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Federal judge urges passage of the Smarter Sentencing Act because of "Prisoners I Lose Sleep Over"
The title of this post is drawn from the headline given to this recent commentary piece in the Wall Street Journal authored by senior US District Judge Michael Ponsor. Here are excerpts:
The Senate Judiciary Committee approved the "Smarter Sentencing Act" by a bipartisan vote of 13-5 on Jan. 30, sending it to the Senate floor. The legislation is excellent and its passage would mean a long overdue correction of a misguided sentencing regime that Americans — including federal judges like me — have struggled with for more than two decades.
I've been on the federal bench for 30 years, having served 10 years as a magistrate judge and 20 as a U.S. district judge. My pride in our constitutional system runs bone deep: No system of law has ever existed that tries so hard to be truly fair. I can take scant pride, however, in the dark epoch our criminal sentencing laws have passed through during my decades handling felony cases....
For years, I could recite the mandatory terms for crack in my sleep: five years for five grams, 10 years for 50 grams, 20 years for 50 grams with one prior conviction, life without parole for 50 grams with two priors — no discretion, no consideration of specific circumstances. These mandatory terms (unless the defendant cooperated by implicating others) were the same for low-level couriers, called mules, as for high-echelon drug lords.
By passing the Fair Sentencing Act, Congress recognized that this system of mandatory sentences, in addition to being unjust, was to some extent racially skewed since black drug users tend to favor crack, while whites prefer much less harshly penalized powder cocaine. Yet defendants sentenced before the act was passed still languish today, serving out sentences that virtually all members of Congress now recognize as excessive. And there is not a darn thing anyone can do about it. If you're the one doing the sentencing, this reality will keep you awake at night, believe me.
The Smarter Sentencing Act would reduce 20-year mandatory sentences to 10, 10-year sentences to five, and five-year sentences to two years. Increased numbers of offenders with very modest criminal records would not face mandatory sentences at all. If adopted, the law would also permit thousands of prisoners to seek reduction of their prison terms to bring them in line with the Fair Sentencing Act. None of these changes would reduce the power of judges to slam the really bad actors. But they would permit judges to do what they are paid to do: use their judgment.
Our vast prison apparatus is too costly, but more important, it is unworthy of us as a free people. This new statute is well named — now is the time for smarter sentencing.
Some recent related posts concerning Smarter Sentencing Act:
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- Conservative group ALEC joins the growing calls for sentencing refom
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act
- Effective Heritage analysis of federal MMs and statutory reform proposals
February 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (2) | TrackBack
"Follow the Money: How California Counties Are Spending Their Public Safety Realignment Funds"
The title of this post is the title of this intriguing paper available via SSRN authored by Jeffrey Lin and Joan Petersilia. Here is the abstract:
The California correctional system is undergoing a dramatic transformation under Assembly Bill 109 (“Realignment”), a law that shifted responsibility from the state to the counties for tens of thousands of offenders. To help manage this change, the state will distribute $4.4 billion to the counties by 2016-2017. While the legislation directs counties to use these funds for community-based programs, counties retain a substantial amount of spending discretion. Some are expanding offender treatment capacities, while others are shoring up enforcement and control apparatuses.
In this report we examine counties’ AB 109 spending reports and budgets to determine which counties emphasize enforcement and which emphasize treatment. We also identify counties that continue to emphasize prior orientations toward punishment and counties that have shifted their priorities in response to Realignment. We then apply quantitative and comparative methods to county budget data to identify political, economic, and criminal justice-related factors that may explain higher AB 109 spending on enforcement or higher spending on treatment, relative to other counties.
In short, our analysis shows that counties that elect to allocate more AB 109 funds to enforcement and control generally appear to be responding to local criminal justice needs, including high crime rates, a shortage of law enforcement personnel, and a historic preference for using prison to punish drug offenders. Counties that favor a greater investment in offender treatment and services, meanwhile, are typified by strong electoral support for the Sheriff and relatively under-funded district attorneys and probation departments.
Noticing racial disproportion in who ends up serving time in private prisons
This new Mother Jones piece, headlined "Why There's an Even Larger Racial Disparity in Private Prisons Than in Public Ones," highlights a new study concerning the racial composition of private prison populations. Here is how the piece begins, with all the notable links (including a link to the discussed study) included:
It's well known that people of color are vastly overrepresented in US prisons. African Americans and Latinos constitute 30 percent of the US population and 60 percent of its prisoners. But a new study by University of California-Berkeley researcher Christopher Petrella addresses a fact of equal concern. Once sentenced, people of color are more likely than their white counterparts to serve time in private prisons, which have higher levels of violence and recidivism (PDF) and provide less sufficient health care and educational programming than equivalent public facilities.
The study compares the percentage of inmates identifying as black or Hispanic in public prisons and private prisons in nine states. It finds that there are higher rates of people of color in private facilities than public facilities in all nine states studied, ranging from 3 percent in Arizona and Georgia to 13 percent in California and Oklahoma. According to Petrella, this disparity casts doubt on cost-efficiency claims made by the private prison industry and demonstrates how ostensibly "colorblind" policies can have a very real effect on people of color.
The study points out an important link between inmate age and race. Not only do private prisons house high rates of people of color, they also house low rates of individuals over the age of 50 — a subset that is more likely to be white than the general prison population. According to the study, "the states in which the private versus public racial disparities are the most pronounced also happen to be the states in which the private versus public age disparities are most salient." (California, Mississippi, and Tennessee did not report data on inmate age.)
Private prisons have consistently lower rates of older inmates because they often contractually exempt themselves from housing medically expensive—which often means older—individuals (see excerpts from such exemptions in California, Oklahoma, and Vermont), which helps them keep costs low and profits high. This is just another example of the growing private prison industry's prioritization of profit over rehabilitation, which activists say leads to inferior prison conditions and quotas requiring high levels of incarceration even as crime levels drop. The number of state and federal prisoners housed in private prisons grew by 37 percent from 2002 to 2009, reaching 8 percent of all inmates in 2010.
The high rate of incarceration among young people of color is partly due to the war on drugs, which introduced strict sentencing policies and mandatory minimums that have disproportionately affected non-white communities for the past 40 years. As a result, Bureau of Justice Statistics data shows that in 2009, only 33.2 percent of prisoners under 50 reported as white, as opposed to 44.2 percent of prisoners aged 50 and older.
So when private prisons avoid housing older inmates, they indirectly avoid housing white inmates as well. This may explain how private facilities end up with "a prisoner profile that is far younger and far 'darker'... than in select counterpart public facilities."
Private prisons claim to have more efficient practices, and thus lower operating costs, than public facilities. But the data suggest that private prisons don't save money through efficiency, but by cherry-picking healthy inmates. According to a 2012 ACLU report, it costs $34,135 to house an "average" inmate and $68,270 to house an individual 50 or older. In Oklahoma, for example, the percentage of individuals over 50 in minimum and medium security public prisons is 3.3 times that of equivalent private facilities.
"Given the data, it's difficult for private prisons to make the claim that they can incarcerate individuals more efficiently than their public counterparts," Petrella tells Mother Jones. "We need to be comparing apples to apples. If we're looking at different prisoner profiles, there is no basis to make the claim that private prisons are more efficient than publics."
"Disqualifying Defense Counsel: The Curse of the Sixth Amendment"
The title of this post is the title of this intriguing new paper available via SSRN authored by Keith Swisher. Here is the abstract:
Lawyer disqualification — the process of ejecting a conflicted lawyer, firm, or agency from a case — is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest (or other misconduct) render that counsel constitutionally ineffective. Most cases and commentary are arguably directed too late in the process — i.e., at the post-conviction stage in which the deferential Sullivan or even more deferential Strickland standard applies. A much faster and more effective remedy might be to disqualify problematic counsel on the front end. But the government might periodically use motions to disqualify as tools to weaken criminal defendants’ defense by depriving defendants of their chosen and effective advocates — just as civil litigants use motions to disqualify.
This Essay takes a close look at the application of the Sixth Amendment in disqualification cases and concludes: (1) that when compared to other litigants, criminal defendants generally have weaker, not stronger, rights to ethical representation; and (2) that disqualification law in criminal practice generally weakens, not strengthens, defendants’ representation.
Saturday, February 15, 2014
"Healthcare Not Handcuffs": Will ACA help end the drug war?
The title and question of this post is my take on this notable recent report from the ACLU and the Drug Policy Alliance titled "Healthcare Not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform." Here is an excerpt from the report's introduction:
The Affordable Care Act (ACA) is the most significant expansion of healthcare coverage in generations, and there is almost no area of the U.S. healthcare system that is not impacted by the reform in some way. Even as debate about the ACA continues, it is now the law of the land, and implementation is fully under way. For criminal justice reform and drug policy reform advocates, the ACA represents a remarkable opportunity to advance efforts to end both mass incarceration and the criminalization-based approach to drug policy often known as the War on Drugs.
Under the ACA, tens of millions of people in the United States will gain healthcare coverage for a broad array of health services and conditions, including, for the first time, substance use and mental health disorders. Of course, there are also problems with the ACA and its implementation, not the least of which is that millions of people will remain uninsured even after the law is fully operational. Yet even with these challenges, the ACA sets the stage for a new health-oriented policy framework to address substance use and mental health disorders -- health problems that have been largely relegated to the criminal justice system for more than 40 years.
This is an enormous paradigm shift that has yet to fully register with criminal justice and drug policy reform advocates, let alone with health policy advocates and the general public. The financial benefits of providing substance use disorder treatment instead of incarceration are well established. But by fully incorporating substance use and mental health disorders into healthcare -- by truly treating them as health issues and requiring public and private insurance plans to cover their treatment -- the ACA creates an opening and financial incentives to shift drug policy into a public health framework, undermining the rationale for a criminal justice approach....
The passage and implementation of the ACA coincides with the growing momentum across the political spectrum to end the War on Drugs, reverse the incarceration boom, and abandon criminal justice policies that have resulted in the criminalization of whole communities. But the paradigmatic shift from criminalization to health will not occur unless criminal justice and drug policy reform advocates seize the moment and leverage the ACA to realize its full transformative potential.
To assist advocates in navigating this new terrain, this paper outlines some of the major provisions of the ACA immediately relevant to criminal justice and drug policy reform (Part One), and then explores specific applications of those provisions, including program and policy examples and suggested action steps (Part Two)....
This is a unique, perhaps even once-in-a-lifetime scenario for criminal justice and drug policy reform advocates: with the ACA, we can start to build true alternatives to the criminal justice response to substance use, the enforcement of which has fundamentally undermined community health and safety. Addressing substance use as a health condition has the potential to lower health costs, dramatically reduce the number of people involved in the criminal justice system, and improve health outcomes and overall wellbeing for millions of people.
Friday, February 14, 2014
Feds give guidance to financial institutions about providing services to marijuana-related businesses
As reported in this lengthy new Denver Post article, headlined "Feds give historic green light to banks working with marijuana businesses," today brought another remarkable and remarkably important new development in the arena of marijuana law, policy and reform. Here are the basics:
Banks were given a green light Friday to offer services to the legal marijuana industry, but must continue to report any suspicious activity specific to that industry to federal authorities.
The historic step brings marijuana businesses closer to legitimacy in states where pot is already legal, but it falls short of the legislative action many banks want to see before doing business with marijuana operators. That will be up to Congress to consider.
In a joint statement, the U.S. Department of Justice and the Financial Crimes Enforcement Network, a bureau of the U.S. Department of the Treasury, said the move gives "greater financial transparency" to an industry that remains illegal in nearly every state. It also makes clear that banks would be helping law enforcement with "information that is particularly valuable" in filing regular reports that offer insights about how marijuana businesses work.
"Law enforcement will now have greater insight into marijuana business activity generally," FinCEN said in a news release, "and will be able to focus on activity that presents high-priority concerns." Banks currently must file a suspicious activity report any time they suspect a transaction has a drug connection. Under the new guidance, banks would have three tiers of SARs specific to marijuana businesses dependent on levels of concern.... The marijuana-specific reports are either "marijuana limited," "marijuana priority," and "marijuana termination," which identifies the business as operating normally or having some measure of truly suspicious activity.
Colorado-based U.S. Attorney John Walsh said the guidance clarifies how law enforcement and banking will approach what's been a sticky issue. The "guidance seeks to mitigate the public safety concerns created by high-volume cash-based businesses without access to banking and the financial system, while at the same time ensuring that criminal organizations, gangs and drug cartels do not have access to the financial system to launder criminal proceeds," Walsh said in a statement.
Colorado and Washington are the only states to allow legal recreational marijuana sales while 20 about others allow medical marijuana. "Now that some states have elected to legalize and regulate the marijuana trade, FinCEN seeks to move from the shadows the historically covert financial operations of marijuana businesses," FinCEN director Jennifer Shasky Calvery said in a statement.... "Clearly it is possible to provide financial services to state-regulated marijuana businesses and comply with the Bank Secrecy Act requirements," the FinCEN official said.
The fledgling industry saw a lack of banking and credit card services — not all are without it, though most are — as its most serious problem, particularly because it essentially forced those businesses into a cash-only system. That made for ripe targets and worried business owners, law enforcement and patrons.
Colorado's medical marijuana industry last year contributed more than $9 million in state sales tax revenues — all of it banked at JPMorgan Chase, one of three to hold a contract for state deposits. Although JPM happily accepts state funds derived from recreational marijuana proceeds, it will not say whether the government's announcement will induce it to bank with those businesses directly.
The latest guidance, as with three previous memos issued by the Justice Department, doesn't carry the same force as law, and bankers are quick to point that out. ...
Mike Elliott, the executive director of the Marijuana Industry Group, a trade organization for cannabis stores, said his group is happy the federal government saw the need for marijuana businesses to have banking services. But Elliott said the memo shouldn't be the final word and said federal law still must be changed to give banks greater confidence in working with the industry. "These memos certainly help and provide some cover but ultimately do not solve all the problems," Elliott said. "So I think we're waiting here to see what the banks' reactions are."
The FinCEN memo is available at this link, and here is how its seven, dense pages get started:
The Financial Crimes Enforcement Network (“FinCEN”) is issuing guidance to clarify Bank Secrecy Act (“BSA”) expectations for financial institutions seeking to provide services to marijuana-related businesses. FinCEN is issuing this guidance in light of recent state initiatives to legalize certain marijuana-related activity and related guidance by the U.S. Department of Justice (“DOJ”) concerning marijuana-related enforcement priorities. This FinCEN guidance clarifies how financial institutions can provide services to marijuana-related businesses consistent with their BSA obligations, and aligns the information provided by financial institutions in BSA reports with federal and state law enforcement priorities. This FinCEN guidance should enhance the availability of financial services for, and the financial transparency of, marijuana-related businesses.
"The Marriage of State Law and Individual Rights and a New Limit on the Federal Death Penalty"
The title of this post is the title of this notable new article by Jonathan Ross now available on SSRN. This piece seems especially timely not only in light of lower federal courts extending recent SCOTUS marriage precedents, but also with the Boston Bomber federal capital case taking place in a state without the death penalty. Here is the abstract:
Since the 1990s, federal prosecutors have, with increasing frequency, sought the death penalty for federal offenses committed in and also punishable under the laws of non-death penalty states. This phenomenon has troubled federalism proponents, who have pointed out that federal prosecutors can use the federal death penalty to circumvent a state's decision to abolish capital punishment. Drawing on these scholars' works, defendants have argued that state law shields them from federal punishment. Courts have almost unanimously rejected such arguments, holding that state law cannot preclude the administration of federal punishment for federal offenses.
This article proposes a novel basis for a challenge to the federal death penalty's use in a non-death penalty state - the Supreme Court's reasoning in United States v. Windsor. In Windsor, the Court held that federal interference with a state law right arising in an area traditionally regulated by states is subject to heightened scrutiny under the Due Process Clause. This article argues that, in some instances, Windsor precludes federal capital prosecutions.
This article considers a Windsor-based motion to dismiss a notice of intent to seek the federal death penalty. The federal capital prosecution in a non-death penalty state interferes with a state law right to not be executed. As states have traditionally prosecuted violent murders, this right arises in an area traditionally regulated by states. Applying due process scrutiny, a court should ask whether a prosecutor's animus towards the state's lack of capital punishment motivated the prosecution in the first place, or whether there is an independent federal interest. If animus alone motivated the prosecution, then Windsor demands that the court reject the attempt to seek capital punishment.
Thursday, February 13, 2014
Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire
As reported in this new AP article, the "U.S. attorney's office in Chicago said Thursday that it's appealing a sentence that included no prison time for the billionaire creator of Beanie Babies for hiding at least $25 million from U.S. tax authorities in Swiss bank accounts." Here is more:
At H. Ty Warner's sentencing last month, Judge Charles Kocoras heaped praise on the toymaker for his charitable giving, declaring society was better served by letting him go free and giving him two years' probation instead of sending him to prison. Warner had faced up to five years in prison.
Warner, 69, of Oak Brook, Ill., was one of the highest profile figures snared in a long-running investigation of Americans concealing funds in Swiss bank accounts. Others convicted of squirreling away less money in Switzerland than Warner have done prison time. Warner, who grew up poor, created the animal-shaped Beanie Babies in the mid-'90s, triggering a craze that made Warner spectacularly rich. Forbes recently estimated his net worth at $2.6 billion.
A one-page notice of appeal signed by U.S. Attorney Zachary Fardon was filed with the U.S. 7th Circuit Court of Appeals, and a full brief will be submitted later. Justice officials in Washington still must OK the appeal, but that's usually considered a formality.
At a Jan. 14 sentencing hearing, Kocoras spent most of his 20-minute explanation of the sentence expressing admiration for Warner. He also said the businessman had already paid a price in "public humiliation." In addition to probation, Kocoras ordered Warner to do 500 hours of community service at Chicago high schools. Earlier, Warner agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million....
During sentencing, assistant government attorney Michelle Petersen urged Kocoras to put Warner behind bars for at least a year. "(Without prison time), tax evasion becomes little more than a bad investment," she told him. "The perception cannot be that a wealthy felon can just write a check and not face further punishment."
This should be a VERY interesting sentencing appeal to watch in the months ahead, and I am already super stoked to read the coming Seventh Circuit briefs from the parties concerning what will surely be differing views on what federal sentencing law demands in a case of this nature.
Prior related post:
February 13, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Trio of former governors to get behind initiative to reform California's dysfunctional death penalty
As reported in this Los Angeles Times article, "three former California governors are set to announce their endorsement Thursday of a proposed initiative sponsors say would end lengthy death penalty appeals and speed up executions." Here is more:
Former governors George Deukmejian, Pete Wilson and Gray Davis will announce at a news conference the launch of an initiative drive for signatures to qualify the proposed constitutional amendment for the November ballot.
The measure, if qualified, would ignite the second statewide debate on the death penalty in two years. A ballot proposal that would have ended capital punishment in California narrowly lost in 2012, with 48% of voters in favor and 52% against.
The new proposal would establish five-year court deadlines for deciding death row appeals, transfer most death penalty cases from the California Supreme Court to lower courts, and allow capital inmates to be spread among the general prison population. It also would require the condemned to work in prison, remove any threat of state sanctions from doctors who advise the state on lethal injection procedures, and exempt the execution protocols from a state administrative law that requires extensive public review.
California now has more than 700 people on death row, and the last inmate was executed in 2006. The state currently has no court-approved method of lethally injecting the condemned, and drugs to do so have been difficult to obtain. The state also has had trouble recruiting lawyers willing to handle capital appeals, which can take decades to be resolved in state and federal courts.
I am hoping this capital reform initiative makes the California ballot given that a majority of Californians have voted to retain the death penalty in the state. I have to believe that California voters do not want to preserve the distinctly dysfunction death penalty system it now has, and this initiative would appear to be the most efficient and effective means to make the state's system more functional.
If this capital reform initiative makes the California ballot, it will also be interesting to see how California's current governor and attorney general will chime in on the issue. My sense is that Gov Brown and AG Harris are generally opposed to an active capital punishment system, and thus they may be disinclined to support the initiative. But it should be hard for them to explain to voters why the support a dysfunction capital punishment system over a functional one.
Wednesday, February 12, 2014
Effective Heritage analysis of federal MMs and statutory reform proposals
Earlier this week, the Heritage Foundation published this effective and informative Legal Memorandum titled "Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms." I plan to have the students in my Sentencing class read this memo, which was authored by Evan Bernick and Paul Larkin, because it provides a very timely review of the arguments surrounding the leading modern reform proposals. And here are the "key points" highlighted by the authors in conjunction with the memo:
The U.S. Senate is considering two bills that would revise the federal sentencing laws in the case of mandatory minimum sentences.
The Justice Safety Valve Act of 2013 expands the existing sentencing “safety valve” by allowing a judge to depart downward from any mandatory minimum “if the court finds that it is necessary to do so in order to avoid imposing” an unjust sentence.
The Smarter Sentencing Act of 2013 applies only to nonviolent drug crimes and would permit a district judge to issue sentences without regard to any mandatory minimum if the court finds that the defendant meets certain criminal history requirements and did not commit a disqualifying offense.
Although the Smarter Sentencing Act takes a smaller step than the Safety Valve Act toward the revision of the federal mandatory minimum sentencing laws, such a measured approach could enhance federal sentencing policy while avoiding a number of potential pitfalls.
Tuesday, February 11, 2014
Washington Gov declares moratorium on executions during his term
As reported in this new Seattle Times article, headlined "Inslee halts executions in state while he is governor," in the Evergreen State the Governor has decided to use his clemency power to create a (temporary?) moratorium on executions. Here are the basics:
Gov. Jay Inslee is calling a moratorium on executions while he is governor. “Equal justice under the law is the state’s primary responsibility,” Inslee said during a news conference Tuesday morning. “And in death penalty cases, I’m not convinced equal justice is being served.”
Inslee said there was “too much at stake” in death penalty cases in what he termed an “imperfect system.” Inslee cited the high cost of trials and appeals, the apparent randomness in which death penalties are pursued and concerns that executions do not deter crime as reasons for his decision. Inslee said he is not asking the state Legislature to abolish the death penalty.
“As governor, it is on my shoulders to come up with a decision for our whole state,” Inslee said. “I have made a decision. It is not an easy one.”
There are currently nine men on Washington’s death row. He said that if a death penalty case crosses his desk for action, he will issue a reprieve, which will potentially only be in effect while Inslee is governor. He said he does not intend to commute any death sentences. “The citizens of the state of Washington can be assured the men of death row will be in prison for as long as they live,” he said.
When questioned, Inslee acknowledged the moratorium may not necessarily save money, particularly since appeals will still likely be filed. However, the move could prompt county prosecutors to not seek the death penalty in some cases, thus realizing some savings....
“Washington’s Constitution and state statutes grant the governor significant powers over the fate of individuals sentenced to death,” Attorney General Bob Ferguson said in a statement Tuesday morning. “Consequently, the governor has the authority to hit the ’pause’ button for executions in Washington.”
However, Ferguson said his office will continue to represent the state when death-row inmates file challenges to their convictions or sentences with the federal courts. Currently, there are four such cases before the federal courts, he said....
King County Prosecutor Dan Satterberg, in a written statement, said the legal ramifications of Inslee’s “reprieve policy” appear limited and that state law remained unchanged. However, he said in the short term it is likely to cause more delays, expense and uncertainty. “A moratorium alone will not resolve the issues raised by the Governor,” Satterberg said. “Let’s have an informed public debate and let the citizens of Washington decide if we should keep capital punishment in our state.”
The death penalty has come under fire in Washington state for a variety of reasons, including what some have termed inconsistencies in when it is sought. For example, in the case of Green River Killer Gary L. Ridgway, King County prosecutors gave up on capital punishment in exchange for his cooperation in providing detectives details that helped solve dozens of open murder cases. Ridgway pleaded guilty to 48 counts of aggravated first-degree murder in 2003 and was sentenced to life in prison.
State Rep. Reuven Carlyle, D-Seattle, has repeatedly introduced legislation to ban the death penalty Of the governor’s moratorium, Carlye said, “It’s a profound shift. He has opened a legitimate conversation. … It sets in motion a legitimate and genuine public conversation.”
But he said the moratorium would not likely spur legislative action this year, noting that last Friday was the cutoff for non-budget-related bills to make it out of committee. “In 2015, we will ask the public to join us in this conversation,” said Carlyle, who will push for a bill then.
Sen. Mike Padden, R-Spokane Valley, chairman of the Senate Law and Justice Committee, disagreed with Inslee’s decision, calling it “shortsighted.”
“I think that is going off on his own and is certainly nothing the Legislature has authorized,” Padden said, noting that Inslee had not consulted him. “I question it, I really do,” Padden said of the moratorium. “To victims it’s the wrong message. The relatives who have suffered the deaths. They have gone through 10 years or more of waiting. ... For the governor to unilaterally take that away I think is wrong.”
Cal Coburn Brown, the last person executed in the state, died by lethal injection in September 2010 for the 1991 murder of Holly Washa in SeaTac. Jonathan Lee Gentry, sentenced for the 1988 murder of 12-year-old Cassie Holden in Kitsap County, is expected to be the next inmate in line to be executed.. Last month, the state Supreme Court rejected a petition for release filed by Gentry’s defense team. Gentry just filed another appeal, based on DNA testing.
Cassie Holden’s father, Frank Holden, said Tuesday he was angry at Inslee and devastated by his decision. He said he spoke with the governor for the first time Monday night when Inslee called to tell him about the moratorium. “There wasn’t much of a discussion. There wasn’t much of a chance for input. He had this thing all planned out,” Holden said, adding that the only thing he was able to tell Inslee was that he was disappointed in his decision.”
“I’ve waited 26 years for justice to happen and now it’s not going to happen because of him. It went through every court system possible,” Holden said, speaking from his business in Pocatello, Idaho. Holden said he thinks about his daughter every day; she would now be 37. “After he told me what he was doing it was nothing compared to the death of my daughter, but it was up there,” Holden said.
Kitsap County Prosecutor Russ Hauge said Tuesday morning he is disappointed by Inslee’s announcement and its potential impact on Gentry’s case. Hauge said he could “see an end in sight” for the Gentry case, because after more than 20 years the man had exhausted most of his appeals. “If ever there was a case that warranted the death penalty, it’s the case of Jonathan Gentry. This is exactly this is what the statute was meant to address,” Hauge said.
Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said Inslee is not be the first governor in the nation to oppose the death penalty. Last year, Colorado Gov. John Hickenlooper granted a reprieve to an inmate who killed four people at a Chuck E. Cheese’s restaurant in 1993 after finding the state’s death penalty system to be “imperfect and inherently inequitable,” according to The Denver Post. Dieter said the move means that the inmate won’t be executed while Hickenlooper is governor.
The full text of Governor Inslee’s remarks announcing his execution moratorium can be accessed at this link.
"Eric Holder makes case for felons to get voting rights back"
The title of this post is the headline of this new Washington Post report on the latest policy advocacy by the US Attorney General concerning criminal justice reform. Here are the notable details:
Attorney General Eric H. Holder Jr. on Tuesday called on states to repeal laws that prohibit ex-felons from voting after their release from prison, urging reforms that could allow millions more former convicts across the country to cast ballots.
In a speech at Georgetown University Law Center, Holder said: “It is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision.” Current laws forbidding felons from voting make it harder for them to reintegrate into society, he said.
Holder said that current laws forbidding felons from voting make it harder for them to reintegrate into society. He pointed to a recent study, which showed that felons in Florida who were granted the right to vote again had a lower recidivism rate. “These restrictions are not only unnecessary and unjust, they are also counterproductive,” Holder said. “By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes.”
Holder does not have the authority to force states to change their laws, but his request could influence the debate to restore voting rights. His appeal is part of a broader effort currently underway by the Justice Department to reform the criminal justice system, which U.S. officials say often treats minority groups unfairly.
The attorney general said that after the Civil War, laws that prohibit ex-felons from voting were a way for post-Reconstruction states to keep blacks from casting ballots. Today, an estimated 5.8 million Americans are not allowed to vote because of current or previous felony convictions. Of those, nearly 38 percent are black.
The Justice Department said that 23 states since 1997 have enacted voting-rights reforms. They include Nebraska, Nevada, Texas and Washington state.
The Justice Department said that 11 states, including Florida and Kentucky, restrict voting rights for ex-felons. Holder said that 10 percent of Florida’s population is disenfranchised.
Voting-rights activists are trying to change the law in that state to make it easier for “returning citizens” to vote. The push could become a campaign issue in Florida’s gubernatorial election this year. In Kentucky, a bill to restore felon voting rights to those not convicted of certain lascivious or violent crimes gained momentum last month in the state legislature. “These laws deserve to be not only reconsidered, but repealed,” Holder said.
There is even more of note in the full speech given today by AG Eric Holder at Georgetown University Law Center, the text of which is available here. I now have to go teach, so I will not be able to comment further until late tonight, but here are parts of the discussion of voting rights referenced above:
These laws deserve to be not only reconsidered, but repealed. And so today, I call upon state leaders and other elected officials across the country to pass clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines. I call upon experts and legislators to stand together in overturning an unfortunate and outdated status quo.
And I call upon the American people – who overwhelmingly oppose felony disenfranchisement – to join us in bringing about the end of misguided policies that unjustly restrict what’s been called the “most basic right” of American citizenship.
I applaud those who have already shown leadership in raising awareness and helping to address this issue. Later today, this conference will hear from Senator Rand Paul, who has been a leader on this matter. His vocal support for restoring voting rights for former inmates shows that this issue need not break down along partisan lines.
Bipartisan support will be critical going forward because, even in states where reforms are currently taking hold, we need to do even more. And we need to make sure these positive changes are expanded upon – and made permanent.
Some prior related posts:
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Big new Sentencing Project report on felon disenfranchisement
If you like paternalism and hate permissive freedoms and big business...
At about the 2:20 mark of the clip linked above, Kennedy explains he is a "a good liberal Democrat" who "does not like big business" and fears that this new industry will start selling lots of products that people will want to buy with THC in it. And just after the six-minute mark, Kennedy explains that he is "worried about the future of our country" because the permissive environment created by marijuana legalization might lead to stressed kids thinking they should consider using marijuana "which might in the short run make them feel better but in the long run will cost them and our country."
Though it is dangerous easy to make fun of big government paternalists like Kennedy, I am truly sympathetic to his concerns and I am glad he is giving voice to reasonable anti-reform views. But I also think he fails to recognize (1) that big business can actually do a lot of good when incentivized to develop and market "safer" vice products that people would otherwise get from the black market, and (2) that pot prohibition (especially with its inevitable big-government criminal-justice support system) ends up costing a lot of kids in both the short run and the long run.
That all said, I am glad this debate is going on in a variety of media forums. I am also glad to see, as evidenced by this local article from Florida, that for some parents with ill kids, supporting marijuana reform is actually a better way to be paternalistic in the healthy version of that trait:
Several efforts to legalize medical marijuana are gaining momentum in both Florida and Georgia. Both Republican and Democratic lawmakers are proposing bills that would legalize a different form of cannabis, giving medical patients an alternative treatment. And in November, Floridians will be able to vote in a statewide referendum.
Medicinal marijuana has yet to gain approval from the Food and Drug Administration, and opponents argue more tests and studies need to be done proving its medical benefits. Yet there are parents willing to take a chance on this alternative form of medicine with their children, saying it's their last hope.
In December of 2013, Cathy Klein, along with thousands of volunteers worked feverishly to collect enough signatures to get medical marijuana on Florida's November ballot. Now, two months later she says, "I know in my heart it's going to be legalized." Nearly 700,000 signatures collected and validated, the decision is now in the hands of Florida voters. At the same time, state lawmakers in both Florida and Georgia are working towards finding their version of a solution for sick patients.
In Georgia HB 885, known as "Haleigh's Hope" would utilize academic medical centers in state, allowing them to study marijuana in a controlled clinical setting. Monday, Florida State Representatives Jeff Clemens and Joe Saunders held a press conference supporting the Cathy Jordan Medical Cannabis Act, which would create a medicinal marijuana program that allows access to cannabis for medical treatment. It would also regulate when and how it can be cultivated, dispensed, and used.
House Bill 843, Klein says is a light at the end of the tunnel. Her 9-year-old son Sean endures several seizures every single day. "I am very excited," said Klein. "That is our golden ticket right there. That is what we're after, is Charlotte's Web for Sean."
The measure would legalize an extract of a cannabis strain known as Charlotte's Web. Proponents say it reduces seizures in children with severe forms of epilepsy. "It makes me tear up to think about it," said Klein. "To have a day where he doesn't have seizures would be so huge."
Florida Governor Rick Scott has opposed the legalization of marijuana for medicinal purposes in state. Some opponents say it's dangerous and addictive. Still, parents like Klein say they're willing to take a chance. "I don't remember his personality anymore," said Klein about her son. "He's been on seizure medications for so long. It would just be nice to get my child back."
"The Illusory Eighth Amendment"
The title of this post is the title of this notable new article by John Stinneford now available via SSRN. Here is the abstract:
Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.
This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.
This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.
February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Federal judges give California two additional years to deal with prison population problems
As reported in this AP article, "federal judges on Monday gave California two more years to meet a court-ordered prison population cap, the latest step in a long-running lawsuit aimed at improving inmate medical care." Here is more about the latest chapter in the long-running federal litigation that made it to the Supreme Court a few years ago and that continues to impact California's criminal justice system in profound ways:
The order from the three-judge panel delayed an April deadline to reduce the prison population to about 112,000 inmates. California remains more than 5,000 inmates over a limit set by the courts, even though the state has built more prison space and used some private cells.
"It is even more important now for defendants to take effective action that will provide a long-term solution to prison overcrowding, as, without further action, the prison population is projected to continue to increase and health conditions are likely to continue to worsen," the judges said in a five-page opinion scolding the state for more than four years of delay.
California has reduced its prison population by about 25,000 inmates during the past two years, primarily through a law that sends lower-level offenders to county jails instead of state prisons. It also has spent billions of dollars on new medical facilities and staff, including opening an $839 million prison medical facility in Stockton last fall.
Yet in its latest ruling, the special panel of judges tasked with considering the legal battle involving overcrowding said the state has continually failed to implement any of the other measures approved by the panel and the Supreme Court that would have safely reduced the prison population and alleviated unconstitutional conditions involving medical and mental health care. The judges said the delays have cost taxpayers money while causing inmates to needlessly suffer.
However, immediately enforcing the population cap would simply prompt the state to move thousands more inmates to private prisons in other states without solving the long-term crowding problem, the judges said. Given that choice, they adopted a proposal outlined by Gov. Jerry Brown's administration that it can reach the population cap by the end of February 2016 through steps that include expanding a Stockton medical facility to house about 1,100 mentally ill inmates and freeing more than 2,000 inmates who are elderly, medically incapacitated, or who become eligible for parole because of accelerated good-time credits.
The judges said the state also has agreed to consider more population-reduction reforms in the next two years, including the possible establishment of a commission to recommend reforms of penal and sentencing laws.
Brown said the ruling was encouraging. "The state now has the time and resources necessary to help inmates become productive members of society and make our communities safer," he said in a statement.
Brown's administration said the alternative would have been to spend up to $20 million during the fiscal year that ends June 30 and up to $50 million next fiscal year to lease enough additional cells to meet the court order. With the delay, Brown said the state can spend $81 million next fiscal year for rehabilitation programs that would otherwise be spent to house inmates.
Inmates' attorneys had wanted the judges to require the state to meet the population cap by May. "We're very disappointed," said Don Specter, director of the nonprofit Prison Law Office that represented inmates in the crowding lawsuit. "We believe that there are substantial constitutional violations continuing right now, which result in prisoners suffering and dying because of prison overcrowding."...
Republican state Sen. Jim Nielsen, who once headed the state parole board, called the court order "tragic" and said it would endanger public safety. He blamed Brown, a Democrat expected to seek re-election this year, and the court for what he called a "disastrous new system that will result in the early release of many serious and violent inmates." The state should instead increase capacity in prisons and jails while investing in rehabilitation and early intervention programs, Nielsen said in a statement.
UPDATE: This Los Angeles Times article suggests that this latest federal court order might grease the path toward California finally creating a sentencing commission. Here is how the article begins:
Talk of a sentencing commission to review whom California sends to prison and for how long helped Gov. Jerry Brown win a two-year grace period from federal judges who want crowding reduced to a safe level. But there is no official move by the governor's office or Legislature to create one.
Brown's office was quick to point out Monday's federal court order giving the state until early 2016 to reduce crowding notes that the state only "will consider the establishment of a commission to recommend reforms of state penal and sentencing laws." Spokesman Jim Evans noted that was not a "promise" to create such a commission.
The proposal for a sentencing reform came from Senate leader Darrell Steinberg(D-Sacramento), who included it in a September 2013 letter to the federal judges supporting Brown's request for more time to deal with crowding.