Wednesday, July 15, 2015

Politico article suggests real federal sentencing reform poised to become a reality

Almost exactly two years ago, in this July 2013 post reflecting frustration hearing lots of federal sentencing reform talk and relatively little major sentencing reform action, I speculated that the GOP gaining control of the US Senate along with the House might actually make the enactment of some significant federal sentencing reform more likely before the end of the Obama era.  Thus today, thanks to this Politico article reporting on where developments in the GOP-controlled Congress stand, has me feeling a bit clairvoyant:

As President Barack Obama on Tuesday evening called on Congress to take up criminal justice reform, a bipartisan group on Capitol Hill was putting the final touches on a sentencing overhaul deal to be announced as soon as next week. Their message to the president: You’re preaching to the choir. Story Continued Below

“We’ve actually been working on it for quite a while,” said Senate Majority Whip John Cornyn (R-Texas), one of the key negotiators of a package being hashed by members of the Senate Judiciary Committee. “You may see some legislation here in the next week or so. This is active. … [W]e’re close.”...

Right now, the prospects for such legislation seem good, given that lawmakers from both parties have been wrangling with a reform bill for months. Tuesday, for example, the House Oversight Committee became at least the third congressional panel to highlight problems in the justice system, inviting two governors, a handful of senators, House members and experts to discuss a path forward for reducing the number of inmates in federal prisons.

Hours later, the House officially formed the Congressional Criminal Justice and Public Safety Caucus, which will include justice reform supporters. And across the Capitol, Cornyn joined Sens. Mike Lee (R-Utah), Cory Booker (D-N.J.) and Sheldon Whitehouse (D-R.I) for a public dialogue that emphasized the importance of reform.

The biggest announcement is just around the corner: Senate Judiciary Chairman Chuck Grassley (R-Iowa) told POLITICO on Tuesday that his panel is close to announcing a deal on the bipartisan package his panel has been working on for months. Only about four outstanding issues remain, he said, predicting the package will be unveiled before August recess.

July 15, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

GOP House members request AG Lynch to provide accounting of Prez Obama's commutations

As reported via this official press release, it would appear that some GOP House members, seemingly concerned with how President Obama is now using his clemency powers, have decided to question Attorney General Loretta Lynch about what her boss is doing.  Here is what the press release explains (along with the full-text of letter, which is also available at this link): 

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and 18 Republican Members of the House Judiciary Committee today pressed for answers about the Obama Administration’s unprecedented clemency program for certain federal drug offenders in a letter to Attorney General Loretta Lynch.

Although the Justice Department’s own manual states that commutation of sentence is “an extraordinary remedy that is rarely granted,” the Obama Administration last year announced a clemency program for certain federal drug offenders and asked the defense bar to recruit candidates for executive clemency.  To date, 89 federal offenders have received sentence commutations, with the vast majority of those commutations going to federal drug offenders.

Here some key language from the letter, which I find curious and questionable in a variety of respects (especially the language I have emphasized below):

As Members of the Judiciary Committee, which oversees the Department of Justice, including the functions performed by the Office of the Pardon Attorney, we are deeply concerned that the President continues to use his pardon power to benefit specific classes of offenders, or for political purposes. No one disputes that the President possesses the constitutional authority to grant pardons and commutations. However, as the Department’s own U.S. Attorney’s Manual states, commutation of sentence is “an extraordinary remedy that is rarely granted.”

Additionally, the fact that the Department’s clemency initiative is focused solely on federal drug offenders continues this Administration’s plainly unconstitutional practice of picking and choosing which laws to enforce and which to change. This is not, as the Founders intended, an exercise of the power to provide for “exceptions in favour of unfortunate guilt,” but instead the use of the pardon power to benefit an entire class of offenders who were duly convicted in a court of law – not to mention a blatant usurpation of the lawmaking authority of the Legislative branch.

The parts of the letter I have stressed strike me as curious and suspect because they seem to have little legal or factual foundation (though they track quite closely to comments made a day earlier by Bill Otis at Crime & Consequences):

1.  Legally, there is no clear constitutional or other legal restriction on the President deciding, if he so chooses, to use his "pardon power to benefit specific classes of offenders, or for political purposes."  Indeed, the constitutional history of the pardon power, buttressed by comments in the Federalist Papers (see No. 74 and this Heritage memorandum), suggests that broad clemency power was preserved by the Framers in part to enable the Prez to be able to use this power to benefit specific classes of offenders, or for political purposes, when desired.  To this end, Pardon historian P.S. Ruckman rightly calls out this portion of the letter for "a very special kind of stupidity and ignorance."

2.  Factually, the current Obama clemency/commutation initiative, extending so far to just reduce the extreme prison sentence of 89 of roughly 100,000 current federal drug prisoners, in absolutely no way involves "picking and choosing which laws to enforce and which to change" nor does it somehow amount to a "blatant usurpation of the lawmaking authority of the Legislative branch."   Perhaps these assertion would make some sense if the President did in fact really grant full pardons to 100% (or even 75% or even 51%) of all federal drug prisoners/offenders and thereby wiped out entirely the convictions and sentences of truly an "entire class of offenders who were duly convicted in a court of law." But, so far, President Obama has merely shortened the extreme prison sentences of significantly less than .1% of current federal drug prisoners.

I could go on, but I will stop here by highlighting that this letter shows ways in which the current polarization of DC and the extreme disaffinity of the GOP for the current Prez necessarily impedes on the ability for folks inside the Beltway to move forward effectively with sound, sober and sensible sentence reforms.  Signing this suspect letter are a number of House GOP members who have recently spoken in favor of significant federal sentencing reform to reduce undue reliance on excessive terms of incarceration for federal drug offenders. But when Prez Obama actually does something in service to all the reform talk in Washington, his political opponents (perhaps spurred on by Bill Otis and others who oppose any and all criminal justice reforms) cannot resist the political instinct to complain.

July 15, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Missouri completes first post-Glossip execution

As reported in this National Law Journal article, headlined "Supreme Court Rejects Plea to Strike Down Death Penalty," not a single US Supreme Court Justice seemed at all interested in re-considering the basic consitutionality of the death penalty as Missouri moved forward with the first US execution since the Supreme Court's Glossip ruling upheld the basic consitutionality of the death penalty.  Here are the details:

The U.S. Supreme Court on Tuesday night turned away a full-scale challenge to capital punishment in the case of a convicted murderer in Missouri set for execution at 6 p.m. Without comment or dissent, the court rejected multiple appeals from David Zink’s lawyers.  Missouri Gov. Jay Nixon also denied clemency for Zink, who was found guilty in the brutal 2001 murder of a 19-year-old woman.

Lawyers for Zink had earlier invoked U.S. Supreme Court Justice Stephen Breyer’s recent death penalty dissent in seeking a stay. Some commentators saw Zink's case as an opportunity for the full court to reexamine the constitutionality of the death penalty, as Breyer urged in the dissent.  But the court’s action late Tuesday dashed those hopes.

Zink’s execution by lethal injection was the first since the high court issued Glossip v. Gross on June 29.  In Glossip, a 5-4 majority upheld the use of a controversial drug in lethal injections.  Breyer, joined by Justice Ruth Bader Ginsburg, wrote a lengthy dissent questioning whether capital punishment, as it is now carried out, is constitutional....

Richard Sindel of Sindel, Sindel & Noble in Clayton, Missouri, another of Zink’s lawyers, said in an interview Tuesday that the legal team decided to cite Breyer’s dissent because it reflected his and Ginsburg’s long experience in dealing with the death penalty.  “They’ve been at it a long while,” Sindel said.  Unlike the late justices Thurgood Marshall and William Brennan Jr. who dissented from the death penalty “as a matter of course,” Sindel said Breyer’s dissent was “a different animal,” full of detailed analysis and detail on why capital punishment is not working.

Late Tuesday morning, Missouri Attorney General Chris Koster filed a brief with the Supreme Court urging it to reject Zink's appeal as "meritless" and procedurally flawed. Addressing the Glossip dissent, the brief stated, "A two-justice dissent does not establish a new rule of constitutional law made retroactive to cases on collateral review."...

On Monday, a federal judge considering Zink’s appeal also made short shrift of the Breyer dissent.  U.S. District Judge Beth Phillips in the Western District of Missouri wrote: “The court is not inclined to rely on the dissenting opinion in Glossip to declare the death penalty unconstitutional when the majority opinion clearly states that the death penalty is constitutional.”

July 15, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (2)

Tuesday, July 14, 2015

Live-blogging President Obama's big criminal justice reform speech to NAACP

After having waited a few hours for Prez Obama to finally make it to the podium at the NAACP's 106th National Convention, he is finally now, just short of 5pm ET, getting start with a widely-anticipated speech about the need for crimnal justice reform.  After sitting here waiting, I will do some live-blogging just to make the wait feel worthwhile:

Speech starts with praise for NAACP's work and then turns to problems and deficiencies facing minority youth, "our children, America's children."  But today, says Prez Obama, he wants to focus on our criminal justice system and the impact it has on minority populations and the "long history of inequity in the criminal justice system in America."

Notes that the "eyes of more Americans have been openned" to truths about America's criminal justice system.  Notes that "our incarceration rate is four times higher than China's" and that our prison poluation has quadrupled since 1980.  But "we need to be honest that ... there are some folks who need to be in jail .... murderers, predators, drug kingpins."  Not evidence that tougher sentences have contibuted to crime decline, but that it reaches a point of diminishing return.  Focus on distinguishing violent offenders from non-violent, drug offenders.

States "in far too many cases, the punishment does not fit the crime."  And we are spending $80 billion on incarceration --- an amount that would allow universal preschool or doubling the salary of all teachers.  "For what it costs in incarceration for one year, we could eliminate cost of tuition at all the public universities and colleges."  Praise for Rand Paul saying we spend too much on non-violent drug offenders with no public safety benefit.

There are cost that cannot be measured in dollars and cents, says Obama, as he turns to a discussion of racial disparities and the impact on communities of color.  This is not just anecdote, statistics bear out disparities at every stage of criminal justice processing.

"Mass incarceration makes our country worse off and we need to do something about it!"  The good news is that Republicans and Democrats agree on the need for reform, with "Van Jones and Newt Gingrich" and "NAACP and Koch Brothers" working on reforms.

Finishing speech by laying out basic principles in three areas: (1) in the community, (2) in the courtroom, and (3) in the cellblock.  

In the community: if we make investments early in our children, we save money in the future on criminal justice costs.  Investing in our community saves taxpayer money if we are consistent about it.  Stresses that we need to treat kids in community equally, remembering that "kids are different" so we do not "tag them as future criminals, but reach out to them as future citizens."

In the courtroom: we need to lower or eliminate entirely mandatory minimums for nonviolent drug offenses.  We need to invest in alternatives to prison, which can save taxpayers thousands each year.  Congress should pass a sentencing reform act this year.

In the cellblock: notes he will be first sitting Prez to visit a federal prison on Thursday, and I am going to shine a spotlight on this issue.  People in our prisons, though they have made mistakes, they are also Americans and we need to "increase the possibility they can turn their lives around."  If somebody in the midst of imprisonment recognizes the error of their ways, we have to make sure they are in a position to make the turn.  We should not be tolerating overcrowding, gang activity or rape in prison.  "These things are unacceptable!"  I have asked my attorney general to investigating to overuse of solitary confinement.  Prisons shoudl train people to find a job, not train them to be more hardened criminals.

UPDATE: The Marshall Project provides here a review of key passages from Prez Obama's NAACP speech on criminal justice reform. It sets up its review this way:

Whether or not you agree with President Obama about the need for criminal justice reform, it is undeniable that the speech he delivered in Philadelphia on Tuesday to the annual convention of the NAACP broke new ground.  Many presidents have spoken before, and some with great ardor, about law and order.  But no sitting president has ever publicly spoken at such length and in such detail as Obama now has about the persistent problems of crime and punishment in this country.

July 14, 2015 in Who Sentences? | Permalink | Comments (5)

NYU Law creates Clemency Resource Center, a "pop-up, pro-bono law office to submit petitions"

Download (1)I was very excited to learn via a press release that NYU School of Law has just "announced the launch of the Clemency Resource Center (CRC), a pop-up law office within the Center on the Administration of Criminal Law (CACL)."  Via the CACL's website, here is what this important new "pop-up law office" is all about and what it is planning to do:

The CRC will exist for one year, with the sole purpose of preparing and submitting federal clemency petitions at no cost to prisoners.  Beginning with a staff of seven attorneys, the CRC will work closely with Clemency Project 2014, an ongoing initiative designed to identify and find counsel for worthy clemency candidates, and will provide pro bono assistance to federal prisoners who likely would have received shorter sentences had they been sentenced today.

The CRC was co-founded by Rachel Barkow, Segal Family Professor of Regulatory Law and Policy at NYU Law, and Mark Osler, who holds the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas.  Erin Collins, a former public defender and acting assistant professor at NYU Law, serves as executive director.  Generously funded by Open Society Foundations, the CRC will begin work in August.

The CRC is unique in that it addresses an immediate short-term opportunity.  President Obama has clearly signaled his intent to use the constitutional tool of clemency to address over-incarceration.

Clemency Project 2014 aims to identify all federal inmates who seek help and meet criteria released by the US Department of Justice.  The project relies entirely on the help of pro bono attorneys to review and submit petitions.  “Too many non-violent prisoners are serving unduly harsh prison terms based on repudiated laws and policies.  That means we have quite a bit of work ahead,” said Cynthia Roseberry, project manager for Clemency Project 2014.  “This is an all-hands-on-deck situation and we welcome the support of the Clemency Resource Center.”

“The CRC isn’t a clinic, or a conventional legal aid organization, or an advocacy group. It is a factory of justice,” said Osler, a former federal prosecutor.

CACL has worked on clemency cases and reform of the pardon process since 2013 as part of the Mercy Project, an initiative that pursues commutations for federal prisoners who are serving very long sentences for typically non-violent drug crimes.

“The Clemency Resource Center is the latest step in our efforts to improve criminal justice in the United States and to help correct past miscarriages of justice,” said Barkow, faculty director for CACL.

During its year of operation, the CRC will utilize the talents of CACL student fellows as well as of CACL executive director Deborah Gramiccioni, a former federal prosecutor in New Jersey and at the US Department of Justice in Washington, DC.

I adore the notion of this new Clemency Resource Center as a "factory of justice," and I am pleased to learn that this factory is being backed by Open Society funding and will be focused on churning out (surely top-notch) federal clemency petitions for the next year. That said, I hope that everyone realizes that we desperately need many more factories of justice working on not just federal clemency petitions, but also state clemency petitions and also lots and lots of aggressive state and federal criminal justice reform litigation.

July 14, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform

Download (5)Most long-time federal sentencing reform advocates likely have long shared my concern that Wisconsin GOP Representative James Sensenbrenner was a significant impediment to achieving significant federal sentencing reform.  Indeed, as noted in this prior post, as recently as two years ago, Rep. Sensenbrenner was defending federal mandatory minimum statutes on very dubious grounds.  

But now that Rep Sensenbrenner has been working for a couple years on bipartian federal criminal justice reform, he is a co-sponsor of the important SAFE Act  (details here) and today delivered this potent testimony to the GOP-controlled House to support his call for significant sentencing reform.  Here is an excerpt from the testimonty I found especially notable and important (with my emphasis added):  

Over the past three decades, America’s federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today.  Prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.

And yet, this increased spending has not yielded results.  More than 40 percent of released offenders return to prison within three years of release, and in some states, recidivism rates are closer to 60 percent. Several studies have found that, past a certain point, high incarceration rates are counterproductive and actually cause the crime rate to go up.

Especially among low risk offenders, long prison sentences increase the risk of recidivism because they sever the ties between the inmate and his family and community.  These are the ties we need to help reintegrate offenders as productive members of society.

These severed ties are also at the heart of the moral case for reform.  It’s not just the people in prison who are paying the punishment for their crimes.  Mass incarceration tears families apart and deprives children of their fathers and mothers.  It likely means a loss of job, possibly home, and any support he or she had within the community.

And that’s where we are with our sentencing policy — we’re spending more, getting less, and destroying communities in the process.  The system is broke, and it’s our job to fix it.

It is remarkable and a true sign of the modern sentencing times that this reform rhetoric, which sounds more like a passage from an opinion or article by Wisconsin District Judge Lynn Adelman, is coming from GOP Rep. Sensenbrenner. And the adjectives I have stressed in the quoted passage are, in my view, at the heart of the most compelling case for federal reforms and a broad response to modern mass incarceration: the current system is broken and counterproductive, irresponsible and unsustainable, but even beyond any data-driven, cost/benefit analysis, there is a powerful "moral case for reform" that resonates with the commitment to liberty, family, community and limited government that triggered the American Revolution.

Prior related post:

July 14, 2015 in Data on sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Highlighting why dozens of commutations barely move the mass incarceration needle

President Obama's action to commute the sentences of 46 drug offenders yesterday (basics here) merits the label historic.  But, as two recent commentaries highlight, the decision seems more compelling than it is truly consequential given the massive size of the federal criminal justice population.  Here are links to and snippets from the pieces that provide important (and somewhat depressing) context for what the Prez did yesterday:

From Margy Love at The Crime Report, "Clemency is Not the Answer":

[T]he problem of unjust sentences is simply too large to deal with through the clemency mechanism. When Lyndon Johnson commuted 200 drug sentences in the 1960s, almost everyone then in prison who deserved relief got it, thanks to the staffing efforts of the Bureau of Prisons. Today, given the massive number of people prosecuted for federal drug crimes in the past 25 years, and the fundamental rethinking of federal drug sentences now underway, potentially deserving prisoners are legion.

Between 1990 and 2007, nearly 10,000 people were sentenced to prison terms of 30 years or more for crimes involving drugs or firearms. Twice that number received sentences of at least 20 years. Trying to produce useful and reliable advice for the President about more than a token number of these individuals is too great a burden for the DOJ’s Justice Department’s tiny pardon staff. But the President cannot be expected to put his reputation on the line on the basis of anything less.

In addition to the practical problems raised by trying to force so many prisoner petitions through an administrative bottleneck onto a busy President's plate, there are institutional reasons why executive clemency is the wrong tool for dealing with systemic problems in the penal system.

From Steven Nelson at U.S. News & World Report, "Obama's 46 Commutations Barely Scratch the Surface: Thousands more may die in prison for nonviolent crimes":

Obama said 14 of the people he’s granting freedom would have otherwise died behind bars. Precise numbers are unclear, but in 2013 the American Civil Liberties Union reported at least 3,278 people were serving life without the possibility of parole for nonviolent crimes. More than 2,500 of those cases involved drug crimes.

"[T]here still remain thousands of Americans languishing in prisons serving sentences that have been repudiated by both Congress and the president," said Rep. Steve Cohen, D-Tenn., a leading supporter of drug law reform. "I hope the president continues this push for justice for all of them.”

Beth Curtis profiles 14 other people on her website LifeforPot.com who are serving life sentences for nonviolent marijuana convictions, none of whom received clemency Monday. She vetted each to ensure they had no previous convictions involving violence or other drugs. Other sources have higher estimates for marijuana-specific life sentences. The Clemency Report says there were 54 sentences of life without parole between 1996 and 2014.

“Frankly, my belief is that there is no place for life without parole for any nonviolent drug offender,” says Curtis, whose brother John Knock is serving life in prison for a marijuana dealing conviction. “It's not fiscally responsible and the sentence doesn't fit the crime.” Michael Collins, policy manager at the Drug Policy Alliance, echoed other reformers, saying he welcomes the new commutations, but “we need much more action."

Prior recent related posts:

July 14, 2015 in Clemency and Pardons, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Start of big two-day House hearings on criminal justice reform

Images (4)Though President Obama will capture most of the headlines with his emphasis on criminal justice reform in speeches and activities this week, Congress is where the reform action need to take place for there to be real, long-term hope and change.  Consequently, I will be keeping an eye on the the two days of hearings on criminal justice reform taking place before the House Committee on Oversight and Government Reform. This morning's Part I of the hearings can be followed via this webpage, and here is how the hearings are set up there:

HEARING PURPOSE:

  • To share lessons on criminal justice reform from states that have successfully implemented new policies. 
  • To hear from a diverse panel of experts regarding emerging areas of reform at both the state and federal levels, including existing and forthcoming bills before the House and Senate.
  • To broaden the conversation on criminal justice reform.

HEARING BACKGROUND:

  • Prison populations have grown precipitously over the past thirty years:
  • From 1940 to 1980: the population remained stable at about 24,000 federal prisoners.
  • 1980-1989: it more than doubled to about 58,000 prisoners.
  • 1990-1999: it more than doubled again to about 134,000 prisoners.
  • 2000-2010: it increased by another 45 percent to about 210,000 prisoners.
  • 2013: we now have more than 219,000 federal prisoners (nearly 40 percent above rated capacity).

 Spending on federal prisons has skyrocketed:

  • From 1998 to 2012, the Federal Bureau of Prisons (BOP) budget increased from $3.1 to $6.6 billion–from 15 to 24 percent of the Department of Justice (DOJ) budget. 
  • The 2013 budget request for the BOP totaled $6.9 billion, an increase of $278 million over the FY 2012 budget. 
  • The BOP is now consuming 25 percent of the DOJ budget. 

Criminal justice reform efforts typically fall into one of three categories, each of which will be discussed in the hearings:

  • “Front end” measures address how people end up in prison in the first place and the length of sentences they will receive.  Reform of mandatory minimums, for example, attempts to reduce prison populations and recidivism by allowing judges to impose shorter sentences on nonviolent offenders.
  • “Behind the wall” reforms attempt to change the operations of the prisons themselves.
  • “Back end” changes focus on the circumstances of release from prison, including serving portions of sentences in an alternative custody arrangement and rehabilitation programs.

July 14, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, July 13, 2015

"Some major U.S. religious groups differ from their members on the death penalty"

FT_15.07.13_deathPenaltyReligionsThe title of this post is the headline of this intriguing new piece via the Fact Tank blog from the Pew Research Center.  Here are excerpts:

When the Nebraska Legislature voted in May to ban the death penalty in the state – overriding the governor’s veto – supporters of the ban shared some of the credit with religious leaders who had spoken out on the issue, including several Catholic bishops. In fact, many large religious groups have taken positions in opposition to the death penalty even though that stance is sometimes at odds with the opinions of their adherents.

The Catechism of the Catholic Church says the death penalty is acceptable if it is “the only possible way of effectively defending human lives.” In recent years, however, both the U.S. Conference of Catholic Bishops and Pope Francis have spoken firmly against capital punishment.

They are not the only religious leaders to take this position; when it comes to the official teachings of large U.S. religious groups, opposition to the death penalty is more common than support for capital punishment. This is in contrast with public opinion: A majority of U.S. adults (56%) still favor the death penalty, although support has been dropping in recent years.

There also is a disparity between religious groups’ positions and the views of their adherents, particularly among mainline Protestants. Two-thirds of white mainline Protestants (66%) favor the death penalty, but several of the biggest mainline churches are against it. This includes the United Methodist Church, the Evangelical Lutheran Church in America, the American Baptist Churches USA, the Presbyterian Church (U.S.A.) and many others. Roughly half of U.S. Catholics (53%) – including a majority of white Catholics (63%) – also favor the death penalty, in contrast with church leaders’ stance.

Seven-in-ten white evangelical Protestants in the U.S. (71%) support the death penalty, a position held by many of their churches. Two of the largest U.S. evangelical denominations – the Southern Baptist Convention and the Lutheran Church-Missouri Synod – teach that the death penalty is acceptable. The Assemblies of God, a major Pentecostal denomination, does not have an official stance on the issue, although the church’s website cites a “common interpretation that the Old Testament sanctions capital punishment.”

The Church of Jesus Christ of Latter-day Saints (Mormon church) also does not take an official position on the death penalty. Neither does the National Baptist Convention, the largest historically black Protestant denomination, although most black Protestants (58%) oppose the death penalty (in contrast with the U.S. public overall)....

Among non-Christian faiths, teachings on the death penalty vary. The Reform and Conservative Jewish movements have advocated against the death penalty, while the Orthodox Union has called for a moratorium. Similarly, Buddhism is generally against capital punishment, although there is no official policy.

Hinduism also does not have a clear stance on the issue. In Islam, the death penalty is widely seen as acceptable (based on the Quran), and Islamic courts in countries such as Saudi Arabia and Iran routinely hand down death sentences. Some U.S. Muslim groups, however, have spoken out against the death penalty; for example, the Council on American-Islamic Relations has called for a moratorium.

Religiously unaffiliated Americans – atheists, agnostics and those who say their religion is “nothing in particular” – are split on the death penalty, with 48% in favor and 45% opposed.

July 13, 2015 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (6)

Prez Obama commutes sentences for 46 federal drug prisoners (with a video message)

Neil Eggleston, Counsel to the President, has this new White House Blog posting titled "President Obama Announces 46 Commutations in Video Address: 'America Is a Nation of Second Chances'." Here is the text of the posting, with links worth following:

As a former Assistant U.S. Attorney and criminal defense attorney, I'm well acquainted with how federal sentencing practices can, in too many instances, lead nonviolent drug offenders to spend decades, if not life, in prison.  Now, don't get me wrong, many people are justly punished for causing harm and perpetuating violence in our communities.  But, in some cases, the punishment required by law far exceeded the offense.

These unduly harsh sentences are one of the reasons the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.  Today, he is continuing this effort by granting clemency to 46 men and women, nearly all of whom would have already served their time and returned to society if they were convicted of the exact same crime today.

In a video released today, the President underscored the responsibility and opportunity that comes with a commutation.

The President also shared his thoughts in a personal letter written to each of the 46 individuals receiving a commutation today.

In taking this step, the President has now issued nearly 90 commutations, the vast majority of them to non-violent offenders sentenced for drug crimes under outdated sentencing rules. 

While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.  Tune in tomorrow as the President shares additional thoughts on how, working together, we can bring greater fairness to our criminal justice system while keeping our communities safe in an address to the NAACP.

A list of the 46 lucky individuals receiving clemency today can be found here. A too quick review of the list suggests that the vast majority of those receiving clemency today were convicted of crack offenses, though I did notice a couple of marijuana offenders in the group. 

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, New crack statute and the FSA's impact, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Prez Obama with big plans (finally!!) to prioritize criminal justice reform efforts

Images (11)Way back in 2007, then-Prez-candidate Barack Obama on the campaign trail made much of the need for nationwide (and especially federal drug sentencing) criminal justice reform in a speech to Howard Univesity (which I discussed in this 2010 law review article).  In that speech, candidate Obama promised that as President he would be "willing to brave the politics" to help engineer criminal justice reforms.  As long-time readers know from my commentary here and elsewhere, I have long been disappointed that Prez Obama has left us waiting a long time for the reality of his policy work to match the rhetoric of his first political campaign.  

But now, roughly eight years after making campaign proimises at Howard Univesity (and, tellingly, after the conclusion of every significant nation election in which Prez Obama is the most significant player), it appears that Prez Obama is finally poised to invest his political muscle and capital on crimnal justice reform.  This effective Bloomberg Politics article, headlined "Obama to Push U.S. Sentencing Change Backed by Koch Brothers," explains how and provides effective context:

The White House is preparing to seize advantage of bipartisan concern over the burgeoning U.S. prison population and push for legislation that would reduce federal sentences for nonviolent crimes.

President Barack Obama will champion sweeping reform of the criminal justice system during a speech to the NAACP annual convention on Tuesday in Philadelphia, press secretary Josh Earnest said Friday. Obama will present ideas to make the system “safer, fairer and more effective,” Earnest said.

Later in the week, Obama will become the first sitting U.S. president to visit a federal prison when he goes to a medium-security facility in El Reno, Oklahoma.  He’ll also sit for an interview with Vice News for an HBO documentary on the criminal justice system, Earnest said.

Obama came to office promising to reduce the number of Americans imprisoned for nonviolent drug offenses, and in 2010 he signed a law reducing disparities in sentences for possession of crack and powder cocaine. Some Republicans and police organizations criticized the moves as too lenient, but now a bipartisan coalition that includes Obama’s chief political antagonists, billionaires Charles and David Koch, have joined him to support relaxing federal sentencing guidelines.

Key lawmakers from both parties have been invited to the White House next week to discuss strategy. And Obama is expected to soon issue a spate of commutations for nonviolent drug offenders identified by a Justice Department program launched last year. Top officials from the department, including Deputy Attorney General Sally Yates, have recently met with members of Congress to express support for sentencing-reform legislation.

“Engagement with the president has been lacking for the past six years, but this is one topic where it has been refreshingly bipartisan,” Representative Jason Chaffetz, the Utah Republican who heads the House Oversight Committee, said in a telephone interview....

Chaffetz said he was optimistic that a package of bills would advance because of a diverse coalition of supporters lined up behind it. The president dubbed the legislation “a big sack of potatoes” in a meeting with lawmakers in February, Chaffetz said. The composition of the legislation isn’t final.

The Koch brothers, who are major Republican donors, support a bill introduced last month by Representatives Jim Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, that would encourage probation rather than imprisonment for relatively minor, nonviolent offenses and improve parole programs in order to reduce recidivism.

The Sensenbrenner-Scott bill is modeled on state efforts to reduce incarceration. While the federal prison population has grown 15 percent in the last decade, state prisons hold 4 percent fewer people, according to Sensenbrenner’s office. Thirty-two states have saved a cumulative $4.6 billion in the past five years from reduced crime and imprisonment, his office said in a report....

Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, held a meeting in late June to listen to proposals from lawmakers in both parties. And Chaffetz, who described the Republican leadership in the House as “very optimistic and encouraging,” scheduled hearings on the issue by his committee for July 14 and 15. “I don’t normally do two days of hearings; we’re giving it that much attention,” Chaffetz said. “So it has more momentum than anybody realizes.”

There is a significant obstacle on the other side of the Capitol: Senator Chuck Grassley, the Iowa Republican who chairs his chamber’s Judiciary Committee.... But supporters of the House legislation have reason for optimism: Last month, Grassley announced he would work on a compromise in the Senate.

While Grassley has indicated a willingness to reduce penalties for some crimes, he wants to increase mandatory minimum sentences for other offenses, a Senate Republican aide said. The person requested anonymity to discuss internal deliberations. That could make sentencing changes an easier sell to tough-on-crime voters, but endanger the support of lawmakers who see mandatory minimums as bad policy. “There does appear hope for a bipartisan compromise,” Earnest said Monday. “We obviously welcome that opportunity.”

Senator Mike Lee, a Utah Republican who has long championed criminal justice reform, is leading negotiations with Grassley. He’s backed by Patrick Leahy of Vermont, the senior Democrat on Grassley’s committee, and Dick Durbin of Illinois, the second-ranking Democrat in the Senate.

The talks remain sensitive. During a Judiciary Committee hearing on Wednesday, Leahy -- admitting he already knew the answer -- asked Yates, who was testifying before the panel, to restate her support for sentencing reform. “I was born at night, but not last night,” Grassley interjected. “And I know that question was in reference to me, and I want everybody to know that we’re working hard on getting a sentencing-reform compromise that we can introduce. And if we don’t get one pretty soon, I’ll probably have my own ideas to put forward.”

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, July 12, 2015

Seventh Circuit panel affirms as reasonable probation sentence for tax dodging Beanie Babies billionaire

Late Friday, a Seventh Circuit panel rejected the government's claim that a probation sentence given to a high-profile tax cheat was unreasonable.  The lengthy opinion in US v. Warner, No. 14 -1330 (7th Cir. July 10, 2015) (available here), gets started this way:

Defendant H. Ty Warner, the billionaire creator of Beanie Babies, evaded $5.6 million in U.S. taxes by hiding assets in a Swiss bank account.  He pled guilty to one count of tax evasion, made full restitution, and paid a $53.6 million civil penalty.  The Sentencing Guidelines provided a recommended 46- to 57-month term of imprisonment, but the district judge gave Warner a more lenient sentence: two years’ probation with community service, plus a $100,000 fine and costs.  The government claims his sentence is unreasonable because it does not include a term of incarceration.  

In a typical case, we might agree.  But this is not a typical case.  The district judge found Warner’s record of charity and benevolence “overwhelming.”  Indeed, the judge remarked that Warner’s conduct was unprecedented when viewed through the judge’s more-than-three decades on the bench.  In the district court’s opinion, this and other mitigating factors — including the uncharacteristic nature of Warner’s crime, his attempt to disclose his account, his payment of a penalty ten times the size of the tax loss, and the government’s own request for a sentence well below the guidelines range — justified leniency.  District courts enjoy broad discretion to fashion an appropriate, individualized sentence in light of the factors in 18 U.S.C. § 3553(a).  The court here did not abuse its discretion.  Rather, it fully explained and supported its decision and reached an outcome that is reasonable under the unique circumstances of this case.  We therefore affirm Warner’s sentence.

Though the panel stresses unique factors applying only in this case to support its reasonableness ruling, white-collar practitioners (especially those in the Seventh Circuit) will find a lot of broader interest and potential value in this opinion.

Prior related posts:

July 12, 2015 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

The Marshall Project covers parole realities (and life without it)

The Marshall Project has a series of notable new piece about modern parole realities, and this lead one carries the headline "Life Without Parole: Inside the secretive world of parole boards, where your freedom may depend on politics and whim." Here is an excerpt:

America's prisons hold tens of thousands of people ... primarily confined not by the verdicts of a judge or a jury but by the inaction of a parole board. Michigan is one of 26 states where parole boards are vested with almost unlimited power to decide who gets out of prison when, and why.

With more than 1.5 million people behind bars, the United States has the highest incarceration rate in the world, and the financial costs are staggering. As politicians from both parties seek alternatives to mass imprisonment, the parole process has emerged as a major obstacle.

A months-long Marshall Project investigation reveals that, in many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.

A recent revision of the Model Penal Code, an influential document written by legal scholars, declared parole boards "failed institutions."

"No one has documented an example in contemporary practice, or from any historical era, of a parole-release system that has performed reasonably well in discharging its goals," a draft of the document says....

Parole boards are vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.  In New Mexico, the law directs the board to take into account "the inmate's culture, language, values, mores, judgments, communicative ability and other unique qualities."

The boards' sensitivity to politics stems in part from the heavy presence of politicians in the ranks of board members.  At least 18 states have one or more former elected officials on the board.  In 44 states, the board is wholly appointed by the governor, and the well-paid positions can become gifts for former aides and political allies.

While some state laws require basic qualifications, these statutes are often vaguely worded, with language that is easily sidestepped. Many states have no minimum requirements at all. And unlike politicians, who are bound by open records and disclosure laws and are accountable to their constituents, parole boards often operate behind closed doors. Their decisions are largely unreviewable by courts — or anyone else.

"Not only are they closed, they're paranoid closed," said Janet Barton, the former operations manager of Missouri's parole board. "Closed to the extreme."  Few others in the criminal justice system wield so much power with so few professional requirements and so little accountability.

Here are the other pieces in the series so far:

July 12, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

DA planning to charge Boston Marathon bomber with murder under Massachusetts law

As reported in this new Reuters article, a "Massachusetts district attorney plans to bring state murder charges against Dzhokhar Tsarnaev, who has been sentenced to death in a federal trial for a deadly bomb attack on the 2013 Boston Marathon, her office said on Saturday." Here is why:

Middlesex District Attorney Marian Ryan said she would charge Tsarnaev with murdering MIT police officer Sean Collier and for other crimes in the aftermath of the marathon attacks. Ryan said a guilty verdict in Massachusetts could keep Tsarnaev in prison if he successfully appeals his federal convictions.

"When you come into Middlesex County and execute a police officer in the performance of his duties and assault other officers attempting to effect his capture, it is appropriate you should come back to Middlesex County to stand trial for that offense," Ryan said in a statement.

July 12, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, July 11, 2015

Would a Prez Hillary Clinton lead to the judicial abolition of the death penalty in the US?

The question in the title of this post is prompted by this notable new opinion piece by Scott Lemieux headlined "How a President Hillary Clinton could help end the death penalty." The whole piece is worth a full read, and here are excerpts:

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, in a separate dissent [in the Supreme Court's recent Glossip ruling] concluded: "I believe it highly likely that the death penalty violates the Eighth Amendment." Breyer's dissent is important, leading some to even conclude that the Supreme Court might actually rule that way in the near future. But this probably won't happen unless a Democratic president replaces one of the Republican-appointed justices on the court, which is another reason the Supreme Court will be a top issue in the 2016 presidential race.

A majority of the Supreme Court has never held that the death penalty is categorically unconstitutional — indeed, there have never been more than two justices at any one time who supported this view. In the 1972 case Furman v. Georgia, the Supreme Court suspended executions, but three of the five justices in the majority held that the death penalty would be constitutional if applied fairly. Only two justices — William Brennan and Thurgood Marshall — held that the death penalty was always unconstitutional, a position they held for the rest of their tenures.

Two other justices, Harry Blackmun and John Paul Stevens, wrote opinions shortly before their retirement suggesting that the death penalty might be unconstitutional. But otherwise every justice has supported the compromise the court reached in 1976: The death penalty is constitutional if applied in a more fair and rational manner. It is possible that Breyer's opinion will be seen as a fraying of this compromise and a crucial step towards a ruling that the death penalty is unconstitutional. But if so, it is likely to be a process that plays out over a fairly long period.

At Slate, Robert J. Smith gives the most optimistic reading of Breyer's dissent from the perspective of death penalty opponents, suggesting that there might be five votes on the current court to abolish the death penalty. His argument is superficially persuasive ...[but] fails to withstand scrutiny.... Glossip itself provides powerful evidence against this possibility. Among other things, Justice Samuel Alito's majority opinion represents a sort of obscene gesture to death penalty opponents: "If you use legal methods to prevent states from carrying out a particular form of execution, it therefore has the right to carry out less humane ones." This is nothing less than a justification for torture. It is very hard to imagine someone who opposes the death penalty in principle joining this opinion, which is exactly what Kennedy did.

It is thus vanishingly unlikely that this court will hold the death penalty unconstitutional. The interesting question is what might happen should a justice nominated by a Democrat become the median vote of the court. In a recent paper, the University of Maryland legal scholar Mark Graber suggests that we are about to see a much more polarized Supreme Court that, rather than hewing towards centrist opinions, swings well to the left or right depending on who has the fifth vote.

The death penalty is one area where this may be most evident. Unless popular opinion shifts strongly in favor of the death penalty, Breyer's opinion may very well reflect the default position of Democratic nominees, even the most conservative ones. If President Hillary Clinton can replace one of the Republican nominees on the court, we could ultimately see a decision declaring that the death penalty violates the Eight Amendment's ban on cruel and unusual punishments.

But there's a dark side to the polarized court from the perspective of death penalty opponents. If President Scott Walker or Marco Rubio replaces Justice Ginsburg and/or Breyer, states might aggressively expand the death penalty to encompass homicides committed by minors or the sexual assault of children — and these laws would likely be upheld.

Breyer's dissent does not reflect a court that is going to rule the death penalty unconstitutional in the short term. But it does suggest that it is a medium-term possibility — and that the stakes of future presidential elections are about to get even higher, with control of the median vote of the Supreme Court accruing a greater policy impact than it's ever had.

Prior related post:

July 11, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Friday, July 10, 2015

Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution

As reported in this local article, headlined "Kane asks court to end Wolf's death-penalty ban," the top lawyer and prosecutor in Pennsylvania does not think much of her Governor's decision earlier this year to declare a moratorium on executions. Here are the details on the latest chapter concerning the continuing constitutional commotion over capital punishment in the Keystone state:

Calling Gov. Wolf's moratorium on the death penalty "an egregious violation" of the state constitution, Pennsylvania's top prosecutor is asking its Supreme Court to clear the path for the state's first execution in more than a decade.

In a filing Wednesday, Pennsylvania Attorney General Kathleen G. Kane asked the court to allow the execution of Hubert L. Michael Jr., who confessed to murdering a York County teenager two decades ago. Kane argued that it is "blatantly unconstitutional" for Wolf to stay all death sentences, and that allowing Wolf's moratorium to stand would effectively grant him the authority to ignore any laws with which he does not agree.

"In this case, it would allow him to negate a death sentence authorized by the General Assembly, imposed by a jury, and subjected to exhaustive judicial review . . . based on nothing more than personal disapproval and personal public policy beliefs," said the 25-page brief, filed by the attorney general and two of her top deputies. It added: "The governor must execute laws, not sabotage them."...

Wolf spokesman Jeff Sheridan said the governor had no immediate comment but would soon be "responding to the filing." Wolf in February imposed a moratorium on executions until he receives the report of a task force studying the future of capital punishment, unleashing a new round of praise and criticism. At the time, 183 men and women were on death row, confined to their cells 23 hours a day. Michael, of Lemoyne, Cumberland County, was awaiting execution for the 1993 kidnapping of Krista Eng, 16. His death warrant has been signed four times. Another convict spared by Wolf's moratorium is Terrance Williams, 48, a former star quarterback at Germantown High School sentenced to death for the 1984 murder of Amos Norwood, a 56-year-old Germantown church volunteer. He was to be executed in March.

Kane's brief asked the high court for "extraordinary relief," arguing Wolf only has constitutional power to issue reprieves of specific sentences - not an entire class of sentences - and under certain circumstances can grant a commutation or pardon. Reprieves, she argued, are meant to be temporary - usually to allow inmates to pursue legal remedies. When Wolf announced his moratorium, he wrote that he would lift it after seeing the report's recommendations and after "all concerns are addressed satisfactorily."

"What constitutes the point at which 'all concerns are addressed satisfactorily?' What are the concerns? Who is going to determine whether and when they are satisfactorily addressed?" said the filing, signed by Lawrence M. Cherba, who heads the office's criminal division, and Amy Zapp, who oversees the appeals section. "In law and in reality, the governor . . . seeks to replace judicial review of capital sentencing with his own review based on his own personal standard of satisfaction, namely an infallible judicial process that can never be attained," it argued. "Such a roadblock to death-sentence executions is impermissible."

Some prior related posts:

July 10, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, July 09, 2015

ACLU and Koch reps make pitch for SAFE Act and federal sentencing reforms

This notable new Politico commentary advocating for federal criminal justice reform is authored by Anthony Romero, executive director of the American Civil Liberties Union, and Mark Holden, general counsel of Koch Industries. The piece is headlined "A New Beginning for Criminal Justice Reform," and here are excerpts:

The U.S. criminal justice system is in a state of crisis — and Congress is finally moving to address it. On June 25, Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced the bipartisan Safe, Accountable, Fair and Effective Justice Act. Known as the SAFE Justice Act, the legislation is an important step in addressing America’s ballooning, costly and ultimately unjust federal sentencing and corrections system, which needlessly throws away lives and decimates entire communities.

The criminal justice system’s problems are evident all around us.  Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety.  From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes.  Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable.  Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer.  In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large....

The SAFE Justice Act would incorporate lessons learned in [reform] states and apply many of them at the federal level. It seeks to address several specific issues with the current criminal justice system. Four areas of reform are particularly promising: First, it begins the process of reversing over-criminalization and the over-federalization of the criminal code.  The act forces the federal government to disclose the creation of new criminal offenses — a common-sense action that would clarify just how large the criminal code is and how fast it has grown.  It also empowers the victims of federal over-criminalization to seek redress via the Office of the Inspector General.  It also contains various reforms to protect against wrongful conviction, reduce pre-trial detentions, and eliminate federal criminal penalties in state jurisdictions, including penalties for actions such as drug possession.

Second, it would reform sentencing.  Today, mandatory minimums force too many people to plea to lengthy prison sentences — punishments that may not fit the crime.  The act seeks to undo this broken system by encouraging judges to offer probation to low-level offenders, while increasing pre-judgment probation.  It also would restrict mandatory minimums to specific categories of people — such as high-level members of drug-trafficking organizations rather than street dealers — as originally intended by Congress.

Third, it would reduce recidivism. Too often, the criminal justice system’s flaws turn federal prisons into revolving doors for repeat offenders.  The legislation proposes to address this problem with a number of reforms, including shorter sentences for people who participate in specific educational and vocational programs.  These reforms can ensure that people who leave federal prison are better equipped to rejoin their communities and contribute to society.

Fourth, it would increase transparency.  The bill would require that federal agencies issue regular reports on recidivism rates, prison populations and other key statistics. It also would require that cost analyses be presented to judges prior to sentencing to help them make prudent decisions.

This is only a partial list of the reforms proposed in the SAFE Justice Act. They are a good start — but they are not enough to reverse the damage, financially and in terms of human lives, caused by decades of misguided policies.  In particular, members of Congress from both parties should continue to devote particular attention to ensuring that criminal laws penalize only the people who intend to commit crimes, an important distinction that many new federal criminal laws miss.  More broadly, they must identify and pass targeted policies that are smarter on crime, rather than just tougher.

Prior related post:

July 9, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Wednesday, July 08, 2015

"Retribution is a valid societal interest" says local DA in advocacy for death penalty

Download (4)The quote in the title of this post is from Louisiana District Attorney Dale Cox, who is profiled in this interesting front-page New York Times article.  The piece is headlined "The Prosecutor Who Says Louisiana Should ‘Kill More People’," and here are excerpts:

Within Louisiana, where capital punishment has declined steeply, Caddo [Parish] has become an outlier, accounting for fewer than 5 percent of the state’s death sentences in the early 1980s but nearly half over the past five years. Even on a national level Caddo stands apart. From 2010 to 2014, more people were sentenced to death per capita here than in any other county in the United States, among counties with four or more death sentences in that time period.

Caddo ... has bucked the national trend in large part because of one man: Dale Cox. Mr. Cox, 67, who is the acting district attorney and who secured more than a third of Louisiana’s death sentences over the last five years, has lately become one of the country’s bluntest spokesmen for the death penalty. He has readily accepted invitations from reporters to explain whether he really meant what he said to The Shreveport Times in March: that capital punishment is primarily and rightly about revenge and that the state needs to “kill more people.” Yes, he really meant it.

And he has been willing to recount his personal transformation from an opponent of capital punishment, a belief grounded in his Catholic faith, to one of the more prolific seekers of the death penalty in the nation. “Retribution is a valid societal interest,” Mr. Cox said on a recent afternoon, in a manner as calm and considered as the hypothetical he would propose was macabre. “What kind of society would say that it’s O.K. to kill babies and eat them, and in fact we can have parties where we kill them and eat them, and you’re not going to forfeit your life for that? If you’ve gotten to that point, you’re no longer a society.”

Mr. Cox later clarified that he had not seen any case involving cannibalism, though he described it as the next logical step given what he at several points called an “increase in savagery.”...

Mr. Cox’s personality has been under scrutiny here since he returned to being a prosecutor after two decades in insurance law. Lawyers who knew him as a congenial and adroit trial lawyer said that in recent years he had become sullen and solitary. They also have described him as becoming increasingly aggressive in the courtroom, in some cases even threatening defense lawyers with criminal contempt for filing opposing motions.

“It’s such a dramatic change,” said Ross Owen, a former Caddo prosecutor and assistant United States attorney who now practices defense law in Shreveport. “The behavior in and of itself might not be a big deal,” he said. But given Mr. Cox’s position, and the fact that the defendants in most of these capital cases are poor and black in a part of the state with a deep history of racism, Mr. Owen added, “He’s got a loaded gun and he’s pointing it at a lot of people.”

Several said this was not so much Mr. Cox as the culture of the office. They point to a historical racial disparity in the application of the death penalty in Caddo. Or they cite an incident in 2012, when two senior assistant district attorneys, both of whom continue to prosecute capital cases elsewhere in the state, were forced to resign from the office after they obtained machine guns from a military surplus program through what an inspector general found to be falsified applications. The men had belonged to a group of prosecutors who participated in firearms exercises as part of a unit known as the Caddo Parish Zombie Response Team, sporting arm patches around the office and specialty license plates on their trucks.

Mr. Cox, who rose from first assistant to acting district attorney after his boss died unexpectedly in April, was never part of that group and disapproved of it. But he did not dispute that the work he does had changed him and left him more withdrawn.

He describes this as a natural result of exposure to so many heinous crimes, saying that “the nature of the work is so serious that there’d be something wrong if it didn’t change you.” He went on to describe violent child abuse, murders and dismemberments in extended detail, pointing to a box on his desk that he said contained autopsy photographs of an infant who was beaten to death. He volunteered that he took medication for depression.

“The courts always say, ‘Evolving standards of decency tell us we can’t do this or that,’ ” he said in an interview at his office, where he had been considering whether to seek death in one case and preparing to seek it in two others. “My empirical experience tells me it’s not evolving decently. We’ve become a jungle.”

The number of murders in Shreveport has decreased by more than 67 percent since the early 1990s. But Mr. Cox insisted that if the numbers were down, the nature of crimes had become more depraved and that it demanded a different approach.

Defense lawyers conceded that the approach was different. Mr. Cox had refused even to entertain pleas of life without parole in homicide cases for which he deemed death the only fitting remedy. In other cases, the office has prosecuted people for ancillary crimes even after they had made plea agreements. After a man was convicted in 2014 of smothering his infant son, a case that hinged almost entirely on differing interpretations of complicated forensic evidence, Mr. Cox wrote that the man “deserves as much physical suffering as it is humanly possible to endure before he dies.”

Alluding to Rousseau and Shakespeare, Mr. Cox remained unapologetic, insisting that he believed what he was doing was right. But he was not entirely untroubled. “I am humble enough and fearful enough,” he said, considering the biblical commandment not to kill and his own place in the afterlife, “that my God may say to me, ‘I meant what I said, and you’re out.’ ”

July 8, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Sixth Circuit holds Ohio condemned must have his Atkins claim properly considered

As reported in this local AP piece, headlined "Death row inmate wins appeal in Warren murder case," a Sixth Circuit panel yesterday issued a notable federal capital habeas rulin in Williams v. Mitchell, Nos. 03-3626/12-4269 (6th Cir. July 7, 2015) (available here). Here are the basics via the press report: 

A Warren man on death row for the brutal beating of an elderly couple may get his chance to escape the death penalty. An appeals court ruled that Andre Williams can continue to appeal his sentence claiming he was mentally disabled at the time of the 1988 crime.

George Melnick was killed and his wife Katherine was blinded in the attack.

The U.S. 6th District Court of Appeals ruled Tuesday that state courts failed to properly apply federal law governing claims of mental disability in capital punishment cases. The federal court said a lower court ruled improperly when it refused to recognize evidence of the 48-year-old Williams’ disabilities dating to when he was a teenager.

July 8, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, July 07, 2015

"Sex Offender Registries And Calls For Reform"

The title of this post is the title of this recent extended segment on NPR's Diane Rehm Show. Here is how the program is previewed and the guests on the program:

Sex offender registries are designed to protect the public from pedophiles and others who have committed sexual crimes. But some say those guilty of much lesser offenses don’t belong on the list. We look at sex offender registries and calls for reform.

Guests

  • Abbe Smith, professor of law and co-director of the Criminal Justice Clinic and E. Barrett Prettyman Fellowship program at Georgetown University; author of "Case of a Lifetime."

  • Jill Levenson, associate professor, social work, Barry University and clinical social worker

  • Brenda V. Jones, executive director, Reform Sex Offender Laws, Inc.

  • Victor Vieth, founder and senior director, Gundersen National Child Protection Training Center

July 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

New research highlights racial and gender skew in elected prosecutorial ranks

Infographic-1As reported in this New York Times piece, headlined "A Study Documents the Paucity of Black Elected Prosecutors: Zero in Most States," new research spotlights that the persons most responsible for the administration of state criminal justice systems are likely the least diverse actors in the system.  Here are the basics:

Sixty-­six percent of states that elect prosecutors have no blacks in those offices, a new study has found, highlighting the lack of diversity in the ranks of those entrusted to bring criminal charges and negotiate prison sentences.

About 95 percent of the 2,437 elected state and local prosecutors across the country in 2014 were white, and 79 percent were white men, according to the study, which was to be released on Tuesday by the San­Francisco­based Women Donors Network.  By comparison, white men make up 31 percent of the population of the United States....

While the racial makeup of police forces across the country has been carefully documented, the diversity of prosecutors, who many law enforcement experts say exercise more influence over the legal system, has received little scrutiny.  Prosecutors decide in most criminal cases whether to bring charges. And, because so many criminal cases end in plea bargains, they have a direct hand in deciding how long defendants spend behind bars.

“What this shows us is that, in the context of a growing crisis that we all recognize in criminal justice in this country, we have a system where incredible power and discretion is concentrated in the hands of one demographic group,” said Brenda Choresi Carter of the Women Donors Network, who led the study.

The data was compiled and analyzed by the Center for Technology and Civic Life, a nonpartisan group that specializes in aggregating civic data sets.  The Women Donors Network, which undertook the project, is composed of about 200 female philanthropists who promote a variety of causes, including diversification of elected officials by race, class and sex.

Researchers looked at all elected city, county and judicial district prosecutors, as well as state attorneys general, in office across the country during the summer of 2014. Kentucky had the most elected prosecutors, 161, and three states — Alaska, Hawaii and New Hampshire — had none.

The study found that 15 states had exclusively white elected prosecutors: Colorado, Connecticut, Delaware, Idaho, Maine, Montana, Nebraska, New Jersey, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington and Wyoming.  In Kentucky and Missouri, which also has more than 100 elected prosecutors, all but one was white, according to the analysis.  The study also found that 16 percent of elected prosecutors were white women, 4 percent were minority men and 1 percent were minority women.

“I think most people know that we’ve had a significant problem with lack of diversity in decision­making roles in the criminal justice system for a long time,” said Bryan A. Stevenson, the founder of the Equal Justice Initiative, a group that offers legal representation for poor defendants and prisoners. “I think what these numbers dramatize is that the reality is much worse than most people imagine and that we are making almost no progress.”...

Mr. Stevenson questions whether it is possible to diversify the ranks of prosecutors, given that most of them are elected and incumbents often serve long tenures.  With 85 percent of incumbent prosecutors re­elected without opposition, according to a study, sitting prosecutors will either need to start making diversity a priority in vetting their successors or the system will need to be significantly altered to give state bar associations and other legal entities more of a say, he said.

The new study did not look at federal prosecutors, who are appointed, or other state or local appointees.

This website provides colorful representations and related information about the study and data discussed in this New York Times article. This press release retreived via that webpage highlights these data points:

Other key findings of Justice for All*? include:

  • 3/5 of states, including Illinois, have no elected Black prosecutors.
  • In 15 states, all elected prosecutors are white. 
  • Outside of Virginia and Mississippi, only 1% of elected prosecutors are Black.
  • Latinos are 17% of the population, and only 1.7% of elected prosecutors.
  • Only in New Mexico are white men less than 50% of elected prosecutors
  • There is only one state (Maine) where the percentage of women prosecutors matches their percentage of the population (50%)

July 7, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, July 06, 2015

"Dividing Crime, Multiplying Punishments"

The title of this post is the title of this interesting article by John Stinneford which was recently updated on SSRN. Here is the abstract:

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will.

This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a systemic bias against overpunishment.  A punishment was deemed excessive under the Cruel and Unusual Punishments Clause if it was greater than an offender’s retributive desert, as measured against longstanding punishment practice.  Prior to the twentieth century, if prosecutors proposed a novel unit of prosecution for a given crime, judges asked two questions: (1) Does this unit of prosecution give the government the opportunity to bring multiple charges based on a single course of conduct?; and (2) If so, would the bringing of multiple charges create an arbitrary relationship between the offender’s culpability and his cumulative punishment, measured in light of prior punishment practice?  If the answer to both questions was yes, judges would declare the punishment invalid under the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, or the rule of strict construction of penal statutes (the forerunner to today’s rule of lenity).  By recovering this methodology for addressing prosecutorial efforts to divide crime and multiply punishments, we can ameliorate our current mass incarceration crisis and make the American criminal justice system more just. 

July 6, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Did Justice Department during AG Eric Holder's tenure really do "as much as [they] could" on criminal justice reform?

The question in the title of this post is my (somewhat muted) reaction to a key quote from this newly published Q&A interview with former Attorney General Eric Holder.  Let me quote the Q&A passage of interest here and then provide a somewhat less muted reaction thereafter:

Q: Back to the criminal side, during your tenure, you made criminal justice reform a big priority. Are you frustrated with how far you got or didn't get, and is that something you can work on at Covington also?

A: I'm actually kind of satisfied with where we got.  The job's not done.  You know, I think we did as much as we could using executive branch discretion, but now it's up to Congress to put in place measures that will last beyond this administration.  We made a sea change from the policies that I inherited and consistent with kind of my own experience as just a line lawyer at the Justice Department for 12 years.  Put more discretion in the hands of those line lawyers, who I have great respect for.  But now Congress needs to act.

I am happy and eager to credit former AG Holder for doing significant criminal justice reform work while heading the Justice Department through "executive branch discretion" on topics ranging from mandatory minimum charging policies to marijuana enforcement to drug sentencing reform advocacy.  But the claim that DOJ under AG Holder did "as much as we could" genuinely leads me to wonder, if being a bit intemperate, "What the **%&$^# are you talking about or smoking, Eric!?!?!?!?."  On "executive branch discretion" fronts ranging from implementing the Fair Sentencing Act to DOJ clemency policies and practices to executive branch advocacy in other branches, Holder's Justice Department could have (and, in my view, should have) done so much more to transform the modern structures and systems that have produced modern mass incarceration.

I am inclined to agree with former AG Holder that a "sea change" on criminal justice policies has transpired, but I believe AG Holder and his Justice Department were, generally speaking, much more content to ride along with the changing tides rather than taking a leading role in directing this change.  Consequently, in my view, a more fitting and honest statement from former AG Holder would have had him saying something like: "Given the limited political capital I was willing to spend on significant criminal justice reforms, especially during Prez Obama's first Term, and my own disinclination to lead on this front until I decided exactly when I wanted to resign, I think we ended up getting more done than some people might have expected and we effectively avoided stirring up too much political backlash (except from folks like Bill Otis)."

July 6, 2015 in Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Florida prosecutors (for suspect reasons?) seeking 2.5 years in prison for sex-on-beach guy

As previously discussed in prior posts linked below (starting with this one), a couple engaged in some consentual, but seemingly inappropriate, behavior on a public beach lead to a state criminal conviction and a seemingly extreme potentially mandatory imprisonment term for the fellow involved who had a criminal record.  This local article, headlined "Man convicted of sex on the beach in Bradenton Beach learns his punishment Monday," reports on where matters stand today on the morning of the (gentle?)man's scheduled sentencing:

The notorious Bradenton Beach sex-on-the-beach case is back in court Monday.

In a case that drew national and international attention, Jose Caballero, the man caught video having sex with a woman on Cortez Beach last July, will learn his punishment, after a jury found him and Elissa Alvarez guilty of two counts of two counts each of lewd and lascivious behavior. Prosecutors said soon after the verdicts were announced that they would not seek the maximum possible punishment: 15 years.

Alvarez, who didn't have a prior criminal record, in May was sentenced to time served since her arrest July 20, and required to register as a sex offender.

Prosecutors said last month they will recommend that Caballero, who previously served 8 years in prison for cocaine trafficking, be sentenced to 2 1/2 years in prison. He is currently in the Manatee County jail awaiting sentencing.

The tougher punishment, they said, is warranted because of Caballero's behavior before he was arrested on the beach. "We had a real good tone of what to give Ms. Alvarez after the case was over in terms of the testimony that came out, which created a vast difference in the demeanor that Mr. Caballero reacted to the fellow beachgoers versus the demeanor of Ms. Alvarez and how she reacted," said Assistant State Attorney Anthony DaFonseca, after Alvarez was sentenced.

Though I can understand, somewhat, why Caballero's criminal history might prompt prosecutors to seek a somewhat tougher sentence than his co-defendant received, I do not quite understand how the female defendant's "good tone" and distinct reaction justifies such an extreme different in recommended sentences. Ultimately, because I know very little about Florida sentencing law, I am unable to say with certainty that there is something problematic about the Florida prosecutors' recommended sentence here. But I do know 30 months is prison would be a pretty steep price to pay for some sandy sex.

July 6, 2015 in Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Former US District Judge Nancy Gertner talks about drug war casualties she had to create

As reported in this Atlantic posting, headlined "Federal Judge: My Drug War Sentences Were ‘Unfair and Disproportionate’," former US Strict Judge Nancy Gertner recently gave a provocative speech about her federal sentencing history and the impact of the drug war.  The posting provides a link to a video of the speech, and Conor Friedersdorf provides this summary account:

Former Federal Judge Nancy Gertner [recently] stood before a crowd at The Aspen Ideas Festival to denounce most punishments that she imposed. Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said. “I left the bench in 2011 to join the Harvard faculty to write about those stories –– to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy.”

No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.

She went on to savage the War on Drugs at greater length. “This is a war that I saw destroy lives,” she said. “It eliminated a generation of African American men, covered our racism in ostensibly neutral guidelines and mandatory minimums… and created an intergenerational problem –– although I wasn't on the bench long enough to see this, we know that the sons and daughters of the people we sentenced are in trouble, and are in trouble with the criminal justice system.”

She added that the War on Drugs eliminated the political participation of its casualties. “We were not leveling cities as we did in WWII with bombs, but with prosecution, prison, and punishment,” she said, explaining that her life’s work is now focused on trying to reconstruct the lives that she undermined –– as a general matter, by advocating for reform, and as a specific project: she is trying to go through the list of all the people she sentenced to see who deserves executive clemency.

July 6, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, July 04, 2015

"Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders"

The title of this post is the headline of this encouraging lengthy front-page New York Times article. Here are excerpts:

Sometime in the next few weeks, aides expect President Obama to issue orders freeing dozens of federal prisoners locked up on nonviolent drug offenses. With the stroke of his pen, he will probably commute more sentences at one time than any president has in nearly half a century.

The expansive use of his clemency power is part of a broader effort by Mr. Obama to correct what he sees as the excesses of the past, when politicians eager to be tough on crime threw away the key even for minor criminals.  With many Republicans and Democrats now agreeing that the nation went too far, Mr. Obama holds the power to unlock that prison door, especially for young African-­American and Hispanic men disproportionately affected.

But even as he exercises authority more assertively than any of his modern predecessors, Mr. Obama has only begun to tackle the problem he has identified.  In the next weeks, the total number of commutations for Mr. Obama’s presidency may surpass 80, but more than 30,000 federal inmates have come forward in response to his administration’s call for clemency applications.  A cumbersome review process has advanced only a small fraction of them.  And just a small fraction of those have reached the president’s desk for a signature.

“I think they honestly want to address some of the people who have been oversentenced in the last 30 years,” said Julie Stewart, the founder and president of Families Against Mandatory Minimums, a group advocating changes in sentencing. “I’m not sure they envisioned that it would be as complicated as it is, but it has become more complicated, whether it needs to be or not, and that’s what has bogged down the process.”...

“It’s a time when conservatives and liberals and libertarians and lots of different people on the political spectrum” have “come together in order to focus attention on excessive sentences, the costs and the like, and the need to correct some of those excesses,” said Neil Eggleston, the White House counsel who recommends clemency petitions to Mr. Obama.  “So I think the president sees the commutations as a piece of that entire process.”

The challenge has been finding a way to use Mr. Obama’s clemency power in the face of bureaucratic and legal hurdles without making a mistake that would be devastating to the effort’s political viability.  The White House has not forgotten the legacy of Willie Horton, a convicted murderer who raped a woman while furloughed from prison and became a powerful political symbol that helped doom the presidential candidacy of Gov. Michael S. Dukakis of Massachusetts in 1988.

But with time running short in Mr. Obama’s presidency, the White House has pushed the Justice Department to send more applicants more quickly.  Mr. Eggleston told the department not to interpret guidelines too narrowly because it is up to the president to decide, according to officials.  If it seems like a close case, he told the department to send it over.

Deborah Leff, the department’s pardon attorney, has likewise pressed lawyers representing candidates for clemency to hurry up and send more cases her way. “If there is one message I want you to take away today, it’s this: Sooner is better,” she told lawyers in a video seminar obtained by USA Today. “Delaying is not helpful.”...

In his second term, Mr. Obama embarked on an effort to use clemency and has raised his total commutations to 43, a number he may double this month. The initiative was begun last year by James M. Cole, then the deputy attorney general, who set criteria for who might qualify: generally nonviolent inmates who have served more than 10 years in prison, have behaved well while incarcerated and would not have received as lengthy a sentence under today’s revised rules....

Margaret Love, who served as pardon attorney under the first Mr. Bush and Mr. Clinton and now represents prisoners applying for clemency, said the process had become a mess. “It’s really poor management,” she said. “These are people who don’t have any history with sentence reduction. They’ve been putting people in prison all their lives. They don’t know how to get them out.”...

In December, Mr. Obama commuted the sentences of eight drug offenders, and in March he followed up with 22 more.  If he accepts most of the latest applications sent to the White House, some officials said it would probably double that last batch of 22, exceeding the 36 commutations Mr. Clinton issued at one time on his last day in office. Among those Mr. Obama granted clemency in March were eight prisoners serving life sentences for crimes like possession with intent to distribute cocaine, growing more than 1,000 marijuana plants or possession of a firearm by a convicted felon.

Needless to say, I am pleased to hear this report that dozens of additional clemency grants for nonviolent drug offenders may be coming soon from the Obama Administration.  But even if Obama were, after 18 months of lots of big talk about a clemency push, to now commute next week as many as 80 federal drug prisoners, this would still be not be as substantively consequential for the federal prison population as the 400+ drug defendants who will sentenced to lengthy federal prison terms the very same week!  Roughly speaking, in the months since the clemency talk got started, perhaps as many as an additional 35,000 drug offenders (many of whom are nonviolent) have been sentenced to significant federal terms. 

One of many reasons I have been distinctively skeptical and cynical concerning Clemency Project 2014 and related clemency work generated by the Obama Administration's clemency talk was my fear that Prez Obama would lack the courage and desire to commute many thousands of federal sentences. Practically speaking, unless and until the President starts talking about mass commutations, truly significant and consequential sentencing reforms and relief have to come from Congress, the Sentencing Commission or the courts.  (Indeed, rather than worry too much about clemency particulars, I wish the New York Times and all those concerned about mass incarceration in the federal system would focus on the profound impact that the Supreme Court's recent Johnson ruling could have if (and only if) Obama's Department of Justice and the US Sentencing Commission and lower courts apply it broadly and enhance its potential impact.)

July 4, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Celebrating "the blessing of liberty" as the big winner in the SCOTUS Term just completed

Download (2)Lots of folks are already spending lots of time seeking to summarize the Supreme Court Term just ended.  This Washington Post review, headlined "The court’s liberals prevailed in most important cases, but it may not last," provides one example of the left-right SCOTUS political accounting that is common around this time of year. Meanwhile, this NPR segment, headlined "'Fractures' In The Supreme Court Revealed In This Year's Decisions," discusses different divides among the Justices and gives extra attention to the Chief Justice as he wraps up a decade as our nation's top jurist.

For an especially dynamic take on the Term that was, I recommend this Slate SCOTUS Breakfast Table entry by Marty Lederman.  The piece explores the "biggest surprises" of the Term and begins with the observation that the "vast majority of the outcomes were predictable in light of the questions presented [as] at least 95 percent of the justices’ votes conformed to expectations." The piece goes on to explore the ocassional unexpected SCOTUS development and ends with a great account of "the single most surprising and heartening development of the term":

[I]n Davis v. Ayala (a case involving whether it was a harmless error for a trial judge to convene an ex parte “Batson” hearing to assess whether the prosecution’s peremptory challenges to a jury pool were race-based), Kennedy wrote separately to raise an issue that had nothing to do with the question before the court....

This [concurrence] is Kennedy’s pronouncement that he is now prepared to recognize at least some constitutional limits on the horrific practice of extended solitary confinement — after many decades during which the court showed little or no inclination to do anything of the sort.  (Way back in 1890, the court took note of the fact that under the experience of solitary confinement in the 18th century, “a considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”  Yet here we are in 2015, and not much has changed — in large measure because the court has been reluctant to second-guess prison administrators with respect to the practice.)

Kennedy’s Davis concurrence (as well as congressional testimony to similar effect that he gave three months earlier) is an invitation to defense lawyers to bring such constitutional challenges to the court, where they are likely to receive a much more receptive audience than they have in the past.  There are several such cases currently being litigated in the lower courts, including in California and in Arizona.  Perhaps one of them will turn out to be as important, as momentous, next term as King and Obergefell were this term....

This is, I think, by far the most encouraging surprise of the term — the prospect that we might finally bring to an end, or at least materially limit, this barbaric and shameful practice, and thereby come just a bit closer — as the court did this term — to securing the blessings of liberty to ourselves and our posterity.

I share Marty Lederman's perspective that Justice Kennedy's opinion in Davis could and should be the start of something big for further constitutional protection for those subject to the most extreme deprivations of liberty.  More broadly, as I reflect on those cases I am most likely to remember from the Term just concluded — from Obergefell to Johnson to Elonis to Yates (and perhaps even to Glossip) — I cannot help but see liberty as the biggest and most consistent winner.  So, as I finish up this post on the morning of the Fourth of July, I suggest that all devotees of our "nation conceived in liberty" (including Lady Liberty herself) should have an extra wide smile as we watch the rockets red glare tonight.

July 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, July 02, 2015

Varied perspectives on the varied challenges facing varied victims

I am sometimes inclined to say to my sentencing students that crime victims, especially victims of violent crimes, are often the most important and least understood players in the criminal justice system.  Helpfully, these two new lengthy and very different pieces about different violent crime victims can help enhance our understanding:

From the New York Times here, "Full Toll From Aurora Theater Shooting Goes Untold at Trial"

From Slate here, "He Killed Her Daughter. She Forgave Him. Linda White believes in a form of justice that privileges atonement over punishment. She practices what she preaches."

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, July 01, 2015

Despite Glossip, hope for judicial abolition of the death penalty endures

This new Slate commentary by Robert J. Smith highlights that, despite the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol, at least some still believe there could soon be five SCOTUS votes to do away with the death penalty altogether. The lengthy piece is headlined "The End of the Death Penalty?: Recent Supreme Court opinions suggest there are five votes to abolish capital punishment." And here is how it starts and ends:

On the surface, the Supreme Court’s opinion in Glossip v. Gross appears to give death penalty proponents something to celebrate.  After all, the court allowed states to continue to use the sedative midazolam as part of a multidrug formula for lethal injections, despite Justice Sonia Sotomayor’s warning that such executions “may well be the chemical equivalent of being burned at the stake.”  But the bitterly divided 5–4 opinion has implications that extend far beyond the narrow question.  This case may become an example of winning a battle while losing the war.

In a dissent, Justices Stephen Breyer and Ruth Bader Ginsburg concluded that it is “highly likely” that the death penalty violates the Eighth Amendment’s prohibition on cruel and unusual punishments.  While acknowledging that the Supreme Court settled the constitutionality of the death penalty 40 years ago, Breyer wrote that the “circumstances and the evidence of the death penalty’s application have changed radically since then.”

They are not the first sitting justices to call capital punishment’s constitutionality into question.  Justices Thurgood Marshall and William Brennan routinely dissented from decisions upholding a death sentence on the grounds that capital punishment is always a cruel and unusual punishment.  Shortly before his retirement, Justice Harry Blackmun famously wrote that he would “no longer tinker with the machinery of death.”  Justice John Paul Stevens similarly concluded that the death penalty is an excessive punishment.

But Glossip feels different. Breyer’s dissent is more of an invitation than a manifesto. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” It also feels different because it is no longer unthinkable that there are five votes for ending the death penalty....

[Justice] Kennedy has embraced a view of societal norms that is much more holistic than a simple exercise that counts state legislative decisions.  For instance, in Graham v. Florida, the case in which the Supreme Court barred sentences of life without parole for nonhomicide juvenile offenders, Kennedy looked beyond the law on the books to see how the law was used in practice.  Even though most states allowed the sentence, Kennedy found that sheer infrequency reflected a consensus against its use, as did the fact that sentences were concentrated in a handful of states.  Most recently, in Hall v. Florida, Kennedy counted Oregon, a state that formally retains capital punishment, “on the abolitionist side of the ledger” because it “suspended the death penalty and executed only two individuals in the past 40 years.”

In Glossip, Breyer fine-tuned Kennedy’s approach, looking not only at how infrequently states resort to the punishment but also at how “the number of active death penalty counties is small and getting smaller.” (It might be particular personalities within counties as much as it is particular counties responsible for most death penalty sentences.)...

After Kennedy’s opinion in Obergefell, the flashlight is shining brightly on Kennedy’s death penalty jurisprudence. His road map for considering the evolution of contemporary societal norms, coupled with Breyer’s invitation to challenge the death penalty in its entirety, plausibly heralds the twilight of the death penalty in America.

In a similar vein, Cassandra Stubbs, director of the ACLU Capital Punishment Project, has this new MSNBC commentary headlined "The death penalty has an innocence problem — and its days are numbered."

July 1, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Want does Johnson mean for the past, present and future of the career offender guidelines?

As first reported in this post, the the Supreme Court late last week in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  In this initial post, I quickly explored Johnson's appliction to those previously sentenced under ACCA, and I will have more to say on that topic in the future.  But in this post, I wanted to flag the possibility that Johnson could impact past, present and future sentencing pursuant to the career offender guideline of the US Sentencing Guidelines.  

The possible impact of Johnson on guideline sentencing arises because the key phrase declared unconstitutionally vague in Johnson — the phrase which defines predicate offenses to include any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" — is also used in the definition of a career offender predicate under USSG 4B1.1 and 4B1.2.  And, critically, many more federal defendants get sentenced pursuant to the career offender guidelines than pursuant to ACCA.  Indeed, according to Sentencing Commission data, it appears as many as four times more defendants on average each year (roughly 2,200 as opposed to 550) are subject to the career offender guideline than are subject ot ACCA.  

But, importantly, even though the career offender guideline uses the same phrasing as the ACCA statute as the basis of a big sentencing enhancement, this part of the guideline is not necessarily going to be deemed unconstitutionally vague in all cases because lower courts have suggested traditional vagueness doctrines simply do not apply to guidelines in the same way the apply to statutes.  Morevoer, the arguments against applying vagueness doctrines to the application of the federal sentencing guidelines would seem to be even stronger in a post-Booker world in which the guidelines are only advisory.

Moreover, even if the Johnson ruling and vagueness doctrines apply to the federal sentencing guidelines, defendants sentenced in the past under the career offender guideline may be able to get (or even seek) any sentencing relief comparable to ACCA-sentenced defendants.  As noted in prior posts, ACCA's application is such a big deal because it changes a 10-year statutory max sentencing term into a 15-year statutory minimum.  In contrast, the career offender guideline only changes a calculated guideline range within an otherwise applicable statutory range.  That difference certainly means that the best a career offender defendant can hope to get from Johnson is a chance at resentencing, not an automatically lower sentence.

Beyond the interesting and intricate question about Johnson's impact on past career offender sentences, I also think the present and future of this guideline's application remains uncertain.  Given that vagueness doctrine might not apply to the guideline, perhaps district judges could (and even should) still keep applying as it did in the past the phrasing found problematic in Johnson.  Or perhaps district judges ought to now just adopt the approach to the probelmtic clause that was advocated by Justice Alito in dissent in Johnson (discussed in this post).  Or perhaps the US Sentencing Commission needs to use its emergency amendment authority ASAP to just delete or revise the phrase that Johnson addressed because, if it does not, it is near certain different courts nationwide will take different approaches to how to implement the guideline now in light of Johnson.

In sum: Johnson + career offender guideline = lots and lots of uncertainty and interpretive headaches.

Some prior posts on Johnson and its possible impact:

July 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

"Anti-Death Penalty Activists Are Winning The Fundraising Battle In Nebraska"

The title of this post is the headline of this intriguing new BuzzFeed piece providing a "follow-the-money" update on who is really concerned about reversing or preserving the repeal of the death penalty in Nebraska.  Here are excerpts: 

After the Nebraska legislature successfully abolished the death penalty in the state, an expensive battle has begun to bring it back.  But so far, the side against the death penalty is winning the fundraising battle.  The money is all about the potential for a statewide vote on the death penalty.

In May, the state’s conservative legislature narrowly overruled Republican Gov. Pete Rickett’s veto of the measure that abolished the death penalty. Ricketts vowed there would be a referendum to give voters the option to bring it back.  Nebraskans for the Death Penalty will need to collect 57,000 signatures by August to get the vote on the ballot.  If they can manage to collect 114,000 signatures, the death penalty will remain on the books until voters weigh in.

The group estimates that it would need to spend about $900,000 to do so....  [So far] Nebraskans for the Death Penalty raised $259,744 — and more than 75% of that came from the governor’s family. Ricketts and his father, the founder of TD Ameritrade, have given $200,000 to the group.  Another $10,000 was given to the pro-death penalty organization by an Omaha police union.

Nebraskans for the Death Penalty has spent almost all of the money it has currently raised in starting the signature collecting process.  The group has $26,000 in cash remaining, but has $25,000 in unpaid legal and consulting bills.

On the other side, Nebraskans for Public Safety (an anti-death penalty group) has not yet filed its full campaign finance report as of Tuesday evening.  But the group has disclosed receiving a $400,000 contribution from a progressive organization called Proteus Action League.  The group is a 501c(4), meaning it does not disclose its donors. This isn’t the first time Proteus Action League has spent money against the death penalty — the group spent more than $3.4 million on anti-death penalty efforts in 2012, according to an IRS filing.

The anti-death penalty group Nebraskans for Public Safety, which is affiliated with Nebraskans for Alternatives to the Death Penalty and the American Civil Liberties Union of Nebraska, has spent some of the money on television ads urging voters to not sign the petition.

Regardless of the outcome, Ricketts believes he will still be able to carry out the executions of the 10 men on death row.  In pursuit of that, his Department of Correctional Services has spent more than $50,000 on execution drugs from a seller based in India.

July 1, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Reviewing the energies and intricacies involved in Clemency Project 2014

Download (1)The July 2015 issue of the ABA Journal has this very lengthy new piece reporting on the work of Clemency Project 2014.  The piece, headlined "Clemency Project 2014 is out to help prisoners doing excessive time due to inflexible sentencing," and here are excerpts:

[L]ast year, the Department of Justice announced an extraordinary project that could provide relief to ... perhaps thousands of [federal prisonsers]. In January 2014, the department announced a plan to shorten thousands of long sentences handed down for nonviolent drug crimes, using President Barack Obama's clemency power.

It's a radical departure from the way modern presidents have used clemency. Rather than correcting injustices here and there, the project seeks to systematically reduce sentences handed down during an era of inflexible sentencing.

Equally extraordinary was the Justice Department's call for help from the private bar. Because an influx of pro se petitions could overwhelm Justice's small Office of the Pardon Attorney, the DOJ asked private attorneys to volunteer their help.

Enter Clemency Project 2014. About 1,500 volunteer attorneys have come forward to help eligible prisoners submit the best possible clemency petitions. This small volunteer army is being led by five groups of criminal justice stakeholders: the American Bar Association's Criminal Justice Section, the American Civil Liberties Union, Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, and a group of federal defenders—the heads of the 84 offices of federal public or community defenders.

"It is unprecedented, it is important — and the chance of a lifetime for a defense attorney to be able to walk someone out the prison doors this way," says Donna Lee Elm, the federal defender for the Middle District of Florida and part of the CP14 management.

Clemency cases move slowly; FAMM says an answer typically takes from two to seven years. But CP14 doesn't have that much time. Because the project relies on Obama's power to grant clemency — and there's no guarantee his successor will embrace the project — all decisions have to be made before January 2017.

That stress was increased last July when one fertile source of volunteers was cut off. A memo from the Administrative Office of the U.S. Courts forbade federal public defenders from actively representing CP14 clients, though they may still do administrative work. And although there is increasing bipartisan support for sentencing reform, CP14 has drawn criticism from both the right and the left. Among other complaints, critics say the federal government shouldn't allow nongovernmental groups to be so heavily involved in making policy....

CP14 relies on the constitutional power to grant clemency — pardons, sentence commutations and other actions that ease the consequences of a conviction. Though Obama's past statements have suggested he's concerned about unduly harsh drug sentences, he's made little use of his clemency powers. That's the case in general for presidents serving from 1980 onward....

Submissions come after a lengthy review process. Normally, clemency seekers submit their petitions directly to the [Office of the Pardon Attorney] OPA (either pro se or by using one of the few lawyers who specialize in clemency). An OPA lawyer then scrutinizes the petition closely, typically calling the prosecutor's office and judge involved in the original case for an opinion. Once that work is done, the deputy attorney general (currently Sally Quillian Yates) examines it and sends it to the White House with the office's recommendations.

Though petitioners are still free to take that direct route, those going through CP14 get additional review. For those without [any] close relationship to a former attorney, the process started with a survey sent out last year by the Bureau of Prisons, asking whether the prisoner meets the DOJ's clemency criteria. As of early June, CP14 had received more than 30,000 of them. Any volunteer attorney who has completed CP14's training — a six-hour online course — may take up one of those surveys. Volunteers dig through old documents to investigate whether the prisoner really meets the criteria, then create an executive summary. That goes to a screening committee, whose job is to thoroughly double-check whether the case meets the DOJ's criteria.

If the case gets through that round, it goes to a CP14 steering committee, which is responsible for ensuring that each of the project's five partner organizations is comfortable signing off on the case. That's a lot of layers of approval, but Felman says organizers felt each was necessary because they all have different functions. If the case is approved, the volunteer attorney drafts the actual petition. The petition goes to the Office of the Pardon Attorney with a cover letter from CP14, saying the project organizers believe this prisoner meets the criteria. From there, it's out of CP14's hands.

"I'm not saying that that [letter] gives that petition any special weight over there," Felman explained at the midyear meeting. "Our hope is it gives them a little more confidence. But there's no question that they will put it through their regular, routine process."

If the OPA approves a case, it goes to the Office of the White House Counsel. From there, Felman says, CP14 doesn't know what happens. Several emails to the White House press office were unreturned. Clemency Project 2014 petitions began going to the OPA at the end of 2014. In March, the president issued the first four commutations with project involvement, as part of a group of 22 commutations. Though it's hard for CP14 to predict what the president might do, Felman says he's been told the White House would like to start approving cases on a quarterly or even rolling basis. He notes that the March commutations were issued at the end of the year's first quarter and says he would not be surprised to see more issued at the end of the second quarter. This would be another departure from modern presidents' standard practice of granting clemency at Christmas or the end of their terms.

Even when petitions are approved, it's not clear whether clemency recipients will be able to go home right away. No government representative has commented on the issue, but Felman says CP14 has assumed the president will shorten sentences to what they would have been if handed out today. But the March commutations didn't follow that formula; all but one recipient were slated for release at the same time, in July....

[T]he loss of the defenders exacerbated another problem: insufficient volunteers. The project has quite a lot already — about 1,500 as of early June — and is recruiting from large law firms and law school clinics. But with roughly 30,000 prisoner surveys to review — and the end of President Obama's term looming — CP14 needs more.

Another problem, which is endemic to old cases, involves getting the paperwork. Because the Justice Department requires petitioners to have served at least 10 years in prison, the cases are at least that old. That makes it tough to establish a prisoner's eligibility, especially if no former attorney can forward the case file. Many of the cases require an in-person trip to a courthouse because older documents are not on PACER. Even tougher to get are the presentence investigative reports, or PSRs, which are usually sealed. Felman said at the midyear meeting that a handful of judges have denied requests to unseal them; and in one case, a prosecutor opposed it....

[C]ritics of CP14 aren't just law-and-order advocates. In fact, the project has been criticized by some of the most ardent supporters of clemency. On the political right, one critic has been Iowa Republican Sen. Charles Grassley.... Another conservative organization, the watchdog group Judicial Watch, has sued the DOJ under the Freedom of Information Act in an effort to get records of its communications with CP14 partner organizations. Judicial Watch president Tom Fitton says this is a rule of law issue. "There's this effort to abuse the clemency power of the president, to bypass Congress' sentencing laws," he claims. "The whole project by itself is an affront to the idea that the clemency power of the president is exercised on a case-by-case basis."...

Law professors Mark Osler of the University of St. Thomas (who runs a commutation clinic) and Rachel Barkow of New York University ... argued in a November Washington Post op-ed that the clemency process has far too many layers of bureaucracy and creates a conflict of interest because the Justice Department reviews convictions won by its own prosecutors. They called for a stand-alone, bipartisan agency like those used for clemency in many states.

Other critics from the left contend that the DOJ criteria leave too many prisoners out—particularly those who meet all criteria except the 10-year requirement. Felman says CP14 organizers pushed back a little on this issue, but to no avail.

Lots of prior related posts about Clemency Project 2014:

July 1, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 30, 2015

Might Pope Francis shame Prez Obama into doing more about mass incarceration?

The question in the title of this post is a bit of a riff off of this notable new commentary from Philadelphia magazine, headlined "Will the Pope Shame City Hall Into Fixing Its Atrocious Prison Problem?".  Here are excerpts:

The Cool Pope is visiting Philadelphia’s Curran-Fromhold Correctional Facility during his trip to the city this fall, the Vatican announced Tuesday.  

When Pope Francis tours the jail, he’ll find a prison system that has been sued over its crammed conditions almost non-stop for the past 45 years.  In fact, a judge ordered the city to build CFCF in the nineties in order to alleviate overcrowding.  Today, the city's prison system houses nearly 8,200 inmates — about 1,700 more than it was built to hold. At CFCF, 400 to 500 prisoners live in "triple cells," which are jam-packed, three-man cells that are intended to hold only one or two people.  

Will city officials allow the Pope to see the prison's lackluster conditions?  Will he pop into a triple cell?  Or will his impending visit pressure the city to finally get its stuffed jails under control?

We asked Mark McDonald, a spokesman for Mayor Michael Nutter, if there are plans to change the setup of CFCF or move inmates to other jails in the city's system during the Pope's visit.  "There are no plans to change the 'setup' at the prison.  The Pope will see the facility as it is.  He will visit with a group of inmates and also speak to a group of staffers," he said, adding, "No, inmates will not be moved from CFCF."

There's a good chance that this might light a fire under the city to cut down on the prison population, though.  Throughout Nutter's tenure, the city has taken several steps to reduce the number of inmates in the city's jails — and, at times, has been very successful.  In early 2011, the prison system's population fell to 7,700, a recent low. Still, it has never reached that magic number — 6,500, which is the maximum number of inmates that the system was constructed to hold — under Nutter.

The prison population has often fallen under Nutter shortly after the city has been sued due to overcrowding.  Likewise, it has risen after such lawsuits were put on hold.... Won't the upcoming visit by Pope Francis — and all of the international media attention that will come with it — give the city an even bigger incentive to cut down on overcrowding?...

It's also noteworthy that Pope Francis is touring CFCF, which opened in 1995 and is one of the city's newest prison facilities, as opposed to, say, the House of Correction, which is nearly 150 years old and lacks air conditioning.

My post title and question is actually prompted by the fact that I could not remember the last time Prez Obama (or, for that matter, any sitting or former Prez) ever visited a US prison.  Notably, as this article reports, Prez Obama did visit in 2013 the South African prison cell which long housed Nelson Mandela. 

As a general matter, I wonder if any Presidential historians can help me figure out if or how many sitting or former Presidents have ever made an official visit to a US prison or jail facility.  In the meantime, I will here call it notable and telling, and ultimately shameful, that modern mass incarceration in the United States apparently is more of a Papal than a Presidential concern.

June 30, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Virginia Gov creates commission to study bringing back parole in state sentencing scheme

DownloadI have long thought and feared that the broad move in the 1980s and 1990s to abolish parole in the federal sentencing system and in many state systems was a significant (and rarely recognized) contributor to modern mass incarceration problems.  Consequently, I am intrigued and pleased to see this recent press report headlined "McAuliffe creates commission to study bringing parole back to Virginia." Here are the details of what is afoot in Virginia, as well as some highlights of the enduring political issues and debates that surround parole abolition and reforms:

Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country.... McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.

“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”

The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign. It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s....

Carl Wicklund, the executive director of the American Probation and Parole Association, said research suggests that the laws of the 1990s were not necessarily effective, and politicians from both parties are embracing change. Parole gives inmates motivation to better themselves in hopes they could be let out early, he said. “People are starting to look at that, how do you incentivize people when they’re in prison to actually start to get their act together?” Wicklund said.

But others say that crime declined in Virginia in the two decades since parole was abolished and that the prisons are not overflowing with nonviolent first-time offenders. “I want to ask them which murderer, rapist or armed robber they want to get out of jail,” said former Virginia attorney general Jerry Kilgore (R), a lawyer in private practice who was Allen’s secretary of public safety. “Under the old system, murderers were serving a fourth to a third of their time.”

C. Todd Gilbert (R-Shenandoah), a former prosecutor, said Virginia tends to lock up what he called “the right people”: violent offenders, repeat offenders, chronic probation violators and drug dealers. “Why the governor would want to tinker with undoing a good thing is beyond me,” he said. “It’s pure politics. I’m sure he’s getting a tremendous amount of pressure from the base of his party to tear down the criminal justice system. Criminal apologists would love nothing more than to have no one serve any time for practically anything.”

In the interview with WTOP (103.5 FM), McAuliffe said it is his job to protect citizens, but also safeguard taxpayer dollars. The state houses 30,369 inmates at a cost of $27,462 per year per inmate and a total of $833 million annually, he said. Inmates must serve at least 85 percent of their sentences before they can be released for good behavior. “The question now, 20 years later, is has it made us safer or have we spent a lot of money and we haven’t done what we need to do for rehabilitation?” he said.

Former Virginia attorney general Mark L. Earley Sr. — a Republican whom Allen once portrayed as an ally in abolishing parole — will chair the commission with McAuliffe’s secretary of public safety, Brian Moran, and his secretary of the commonwealth, Levar Stoney. The Commission on Parole Review must complete a final report by Dec. 4. “I want everybody just to relax here. We’re not saying let everybody out. We’re not doing that. We’re going to do a comprehensive study,” McAuliffe said.

The effects of parole abolition were also the subject of a study by the Senate Finance Committee released in November, which deemed the policy change a success. “Virginia has the third-lowest rate of violent crime and the second-lowest recidivism in the nation,” the 74-page report concluded. “Sentencing reform is working as intended.”

But the American Civil Liberties Union of Virginia said there is little evidence that parole abolition has made Virginians safer. In fact, the state’s incarceration rate has increased and crime rate has declined at a slower rate than states that have reduced their incarceration levels, the group said. “By removing the opportunity for parole, the commonwealth has also compounded the disproportionate impact that our criminal justice system has on people of color,” said ACLU executive director Claire Guthrie Gastañaga.

Democrats generally praised McAuliffe for revisiting the policy. “It’s an issue of public safety and our commitment to rehabilitation, are we actually doing that in Virginia?” said Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic caucus. Virginia House Minority Leader David J. Toscano (D-Charlottesville) said the commission could recommend relaxing parole for some offenders, but not others. “I don’t believe the governor has any interest in encouraging any policy that’s going to release hardened criminals in advance of their sentence being served,” he said.

But Republicans denounced any effort to roll back one of the landmark reforms of Allen’s governorship. Del. Robert B. Bell (R-Albemarle), a criminal lawyer and former prosecutor who is planning to run for attorney general in 2017, said changing the state’s policy “would be an enormous step back for public safety in Virginia” and would create a “backdoor out of prison” after jurors, detectives and victims have left the courtroom.

House Speaker William J. Howell (R-Stafford) said he agreed that the current system has served the commonwealth well and has become a national model. “While there are always improvements to be made, the notion that Virginia needs wholesale criminal justice reform seems to be more about politics than policy,” he said.

Parole abolition was popular in Virginia when Allen pushed for it, said Chris LaCivita, a Republican strategist who worked on Allen’s 1993 campaign. Allen won the governor’s office that year by an 18-point margin on the promise to abolish parole, and the General Assembly, then controlled by Democrats, passed it his first year in office, he said. “When Allen abolished parole in 1994, it was for violent offenders,” LaCivita said. “And the primary reason was because so many of those who were convicted of violent crimes were only serving a part of their sentence.”

As of 2000, 16 states had done away with discretionary release on parole, and four other states had gotten rid of the practice for certain crimes, according to the Bureau of Justice Statistics. Experts said few, if any, states seem to have reversed course. If Virginia were to do so completely, it might be the first, said Keith Hardison, the chief administrative officer of Association of Paroling Authorities International, which represents parole board staffers. “It’s not unexpected, because it seems like a logical extension of some of the changing, perhaps backing off somewhat of the ‘get tough’ era, and the ‘nothing works’ era,” he said.

Arlington Commonwealth’s Attorney Theo Stamos (D) said it “makes abundant sense” to revisit the policy but noted that she did not feel abolishing parole was a mistake. Crime has dwindled in Virginia since parole was abolished, and while she said there might not be a causation, it was a factor to be considered. “It’s a function of a lot of things, but clearly, the bad folks who are in for a long time . . . for the time that they’re in for, they’re not committing crimes on the street,” she said. Stamos noted that no matter what the commission finds, it would be up to the Republican-controlled General Assembly to restore parole — an unlikely outcome.

June 30, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term.  That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Some prior posts on Johnson and its possible impact:

June 30, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, June 29, 2015

"A Place to Call Home: Courts are reconsidering residency restrictions for sex offender"

The title of this post is the headline of this notable article from the July 2015 issue of the ABA Journal.  Here are excerpts:

[T]he California Supreme Court struck down the blanket application of [the state's] Jessica’s Law in March’s In re Taylor (PDF).  The justices noted that parole officers may impose residency restrictions on a case-by-case basis.  But they unanimously agreed that universal application of the law violates offenders’ constitutional rights — and doesn’t keep children safe.

The law “has hampered efforts to monitor, supervise and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators,” now-retired Justice Marvin Baxter wrote.  Though the decision applied only to parolees in San Diego County, the California Department of Corrections and Rehabilitation soon extended it to parolees statewide. CDCR spokesman Luis Patino says the state attorney general’s office believes courts would apply Taylor to every county.

California is not the only such state.  Later in March, a Michigan federal court struck down application of that state’s “geographic exclusion zones” to six plaintiffs, saying the law is unconstitutionally vague.  And in February, the New York Court of Appeals ruled that all local sex offender residency laws are pre-empted by state law, which does not include residency restrictions.

Courts weren’t always so friendly to these challenges. The highest court to rule on residency restrictions, the 8th U.S. Circuit Court of Appeals at St. Louis, ruled in 2005’s Doe v. Miller (PDF) that Iowa’s residency restrictions did not violate offenders’ constitutional rights.  That’s an important case, says professor Wayne Logan of Florida State University College of Law.  Most courts considering federal challenges on the issue have followed it.

But there are signs that things are changing.  Responding to compelling personal stories and mounting evidence that residency restrictions don’t work — and might even hurt public safety — courts are casting a more critical eye on these laws.  “There’s a public appetite for [sex offender laws], but there’s no evidentiary support that either registries or exclusion zones work,” says Miriam Aukerman, a lawyer for the American Civil Liberties Union of Michigan who represented the plaintiffs in the Michigan case. “And as a result, you’re seeing judges starting to rethink this.”

The facts of Taylor point to one of the biggest criticisms of residency restrictions: They often eliminate so much housing that they force ex-offenders into homelessness.  A 2011 report from the California Sex Offender Management Board expressly noted that “nearly 32 percent of sex offenders on parole are homeless due to Jessica’s Law.”...

And perhaps most damning, Levenson says the consensus among social science researchers is that residency laws don’t reduce recidivism. “We know from decades of research that most child sex abuse victims are well-known to their perpetrators,” she says. “So a person’s residential proximity … is really irrelevant.”

June 29, 2015 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Providing great reading (and little else of consequences), concurring and dissenting Justices use Glossip to debate death penalty's constitutionality

As noted in this prior post, states eager to move forward with challenged execution protocols got a big win on the merits from the Supreme Court this morning in Glossip v. Gross.  And while the substantive ruling from the Court will be of considerable consequence for states eager to move forward with scheduled executions, commentators (and law professors and death-penalty advocates) will likely take more note of the back-and-forth between Justice Breyer and Justices Scalia and Thomas in their separate Glossip opinion.  

Justice Breyer uses Glossip as an occassion to write a 40-page dissenting opinion (with Justice Ginsburg along for the ride) explaining why he now believes "it highly likely that the death penalty violates the Eighth Amendment" and that "the Court should call for full briefing on the basic question." Unsurprisingly, this disquisition prompts both Justice Scalia and Justice Thomas to author separate (and much shorter) concurring opinions seeking to explain why they think Justice Breyer's constitutional views are all washed up.

The work of these Justices debating the constitutionality of capital punishment as a categorical matter makes for great fun for those who enjoy constitutional debate as blood-sport (and for those eager to read the latest, strongests (policy) arguments against the modern death penalty). But the fact that seven current Justices apparently do not question the death penalty's essential constitutionality, including the five youngest Justices, suggests to me that abolitionists still have a lot more work to do before they can reasonable hope to see a majority of Justices find compelling a categorical constitutional ruling against capital punishment in all cases.

June 29, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

SCOTUS rules 5-4 against capital defendant's challenge to execution protocol in Glossip v. Gross

The Supreme Court handed down this morning the last big opinion of likely interest to sentencing fans via Glossip v. Gross, No. 14-7599 (S. Ct. June 29, 2015) (available here).  Here is how Justice Alito's opinion for the Court gets started:

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U.S.C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain.  They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain.  After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective.  The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.

For two independent reasons, we also affirm.  First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims.  See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion).  Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

Based on a too-quick read, the majority opinion seems like a big win for states seeking to move forward even with new and questionable execution methods. I doubt Glossip will halt all the lower-court litigation on state execution protocols, but it certainly should provide lower court judges a much clearer standard and basis for rejecting Eighth Amendment claims in this setting.

June 29, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Two distinct SCOTUS dissents from the denial of cert in capital federal habeas cases

Though a forthcoming opinion from the Supreme Court in Glossip v. Gross concerning executions methods is likely to highlight the Justices' distinct views on capital punishment, another example of this reality appears in this morning's SCOTUS order list.  At the end, one can find two lengthy dissents from the denial of cert: one, authored by Justice Thomas (and joined by Justice Alito), laments the Court's failure to take up a case from the Fourth Circuit that required further review of a North Carolina death sentence; the other, authored by Justice Sotomayor (and joined by Justices Ginsburg and Kagan), laments the Court's failure to take up a case from the Fifth Circuit that upheld a Mississippi death sentence.

Based on a quick read of both opinions, I must say I am generally content that the full Court did not bother to take up these cases as a prelude to seemingly inevitable 5-4 split capital decisions.  More generally, with so many interesting and important non-capital criminal law and procedure issues churning in lower courts, I hope the majority of Justices persistently resist what I see as a too-common tendency to get too-deeply engaged in what too often ends up as one-case-only, deeply-divided capital case error-correction (as I think we saw this term in Brumfield v. Cain and Davis v. Ayala).  

June 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA

This past weekend afforded me the opportunity read more closely the various opinions in the big SCOTUS constitutional sentencing ruling in Johnson v. US striking down a provision of the Armed Career Criminal Act (ACCA) as unconstitutionally vague.  Looking forward, it will be interesting to see how many federal prisoners will claim Johnson demands they receive a lower sentence and also to see how various lower courts sort through such claims.  (I flagged some post-Johnson litigation issues in this prior post, and I will say more on this front in future posts.)  Here I want to look back a bit to explain why I think Justice Alito was unable to get a single colleague to support his suggested ACCA jurisprudence revision to preserve the sentencing provision stuck down in Johnson.

The Court is Johnson finds so much uncertainty in the ACCA residual clause because it "requires a court to picture the kind of conduct that the crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury."  The Court stressed that it "is one thing [and presumably constitutional] to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction."  I think the Johnson majority is basically right on this front, especially seeing how lower courts have struggled greatly mapping various offenses abstractly onto ACCA's residual clause.

But Justice Alito has a readily response: noting ACCA "makes no reference to 'an idealized ordinary case of the crime," he contends the "residual clause can [and should] be interpreted to refer to 'real-world conduct'."  In other words, Justice Alito has a solution to the interpretive problems lamented by the majority: rather than looking at prior convictions in the abstract, sentencing courts could and should engaging in a "conduct-specific inquiry" to assess whether a prior offense presented a "serious potential risk of physical injury."

But while sounding like a viable and reasonable solution, I suspect Justice Alito's suggestion was rejected by all the other Justices because they could see many real-world challenges posed by a "conduct-specific inquiry" in this ACCA setting.  For starters, if a factual inquiry determined ACCA predicates, sentencing courts would have to conduct mini-trials to look at all the real-world conduct behind (long-ago) priors. The mini-trials of priors would implicate an array of complex Fifth and Sixth Amendment procedure issues --- e.g., what would be the burden of proof for the judge (or jury)? would the defense be able to call witnesses and assert confrontation rights?  what review standard applies for the (factual/legal?) determination of "serious potential risk"?

Moveover, with each ACCA case hinging on factual rulings about "real-world conduct," there could be no firm ACCA precedents: even after one court decided defendant Al's real-world drunk driving or flight from the police triggered ACCA, defendant Bert could and would still litigate the same issue in the next case based on his own distinct "real-world conduct."  Even in cases that facially should be easy ACCA calls, the prosecution or the defense might try to argue unique "real-world" conduct made, say, an offense of littering especially risky or an offense of sexual imposition especially safe.

Finally, Justice Alito's own concluding approach to Johnson's case itself reveals how ipse dixit the analysis of "real-world conduct" would still be under ACCA.  Obviously eager to trump up the seriousness of Johnson's shotgun possession offense, Justice Alito asserts "drugs and guns are never a safe combination" and posits that "collateral damage" and "carnage" were real possibilities.  But he seems to be making suppositions as a means to an end no more firm or determinate than considering shotgun possession in the abstract.

In short, I suspect Justice Alito was unable to convince any of his colleagues to embrace his "real-world conduct" approach to ACCA because they understood that this approach would likely create more real-world problems than it would solve.

Some prior posts on Johnson and its possible impact:

June 29, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, June 28, 2015

When might a modern marijuana reform issue get on the SCOTUS docket?

The question in the title of this post is prompted not only by the fact that the Supreme Court is expected to issues its final opinions of the current Term on Monday, but also because some commentators have noticed parallels between quickly changing voter opinions and state laws on gay marriage and quickly changing voter opinions and state laws on marijuana.  Of course, the SCOTUS already has before it the challenge brought directly by Oklahoma and Nebraska assailing the spill-over harms from Colorado's reforms.  But I believe most informed Court-watchers expect that the Justices will refuse to hear the suit brought by Colorado's neighbors

While we all await the final rulings from SCOTUS on Monday and anticipate some future SCOTUS Term with cases addressing new modern marijuana reforms, here are some recent posts of note from Marijuana Law, Policy and Reform (including a few reporting on events that could generate some significant litigation): 

June 28, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2)

"Reducing Racial and Ethnic Disparities in Jails: Recommendations for Local Practice"

The title of this post is the title of this notable new report authored by Jessica Eaglin and Danyelle Solomon for the Brennan Center for Justice. Here is how the report is summarized:

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial disparities in our jails lays out common sense reforms to reduce this disparity, including increasing public defense representation for misdemeanor offenses, encouraging prosecutors to prioritize serious and violent offenses, limiting the use of pretrial detention, and requiring training to reduce racial bias for all those involved in running our justice system.

June 28, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Gearing up for the next SCOTUS death penalty case while awaiting Glossip ruling

Though the Supreme Court has saved for last its decision in the still-pending Glossip case concerning execution protocols, I still am not expecting that Glossip will prove to be a blockbuster ruling.  I am guessing the decision will focus principally on Oklahoma's history with various execution drugs (and, if lower courts are lucky, will provide a clearer script for resolving Eighth Amendment challenges to execution protocols).  

Consequently, an especially for those who are even more concerned about the imposition of death sentences than how they get carried out, it is perhaps not too soon to look ahead to future SCOTUS death penalty cases.  One such case already on the near horizon comes from Florida, as this new local press article highlights.  The article is headlined simply "Fla. death penalty faces scrutiny from Supreme Court," and here are excerpts:

Thirteen years after the U.S. Supreme Court ruled that juries, not judges, should decide death sentences, Florida stands alone in how its justice system imposes capital punishment....  Now the nation’s highest court is poised to consider in its next term whether Florida needs to change its system for deciding whom to execute.  The issue concerns the role of juries in death penalty decisions. It’s an aspect of the state’s system of capital punishment that courts have struggled with for years.

In Florida, as in other states, when defendants are convicted of murder in a death penalty case, juries hear evidence regarding the existence of “aggravating factors,” or aspects of the case that weigh in favor of a death sentence, as well as “mitigating factors,” information that favors a sentence of life in prison without the possibility of parole.  In recommending a sentence, a jury determines whether aggravating factors in a case outweigh the mitigating circumstances and justify the imposition of a death sentence.

But Florida juries, unlike most other states, are told their decisions are merely advisory, and that the judge will make the ultimate determination over whether to sentence a defendant to death.  Trial judges in Florida are required to make their own, independent findings and are permitted to impose sentences different from jury recommendations. Juries in Florida also are not required to reach unanimous decisions on the existence of specific aggravating factors or on whether to recommend a death sentence.

No other state allows the imposition of a death sentence without jurors either finding unanimously that a specific aggravating factor has been established or unanimously finding that capital punishment is appropriate.  The American Bar Association, which takes no position on the overall constitutionality of the death penalty, is urging the U.S. Supreme Court to direct Florida to make changes and require jurors to specify which aggravating factors they have unanimously found to be present.  The association wants the high court to require jurors to unanimously agree on the imposition of death sentences....

The U.S. Supreme Court in 2002 threw out Arizona’s system of capital punishment, ruling it was unconstitutional because judges, not juries, determined the existence of aggravating factors and sentenced defendants to death.  Months later, the Florida Supreme Court left intact the state’s system of capital punishment, concluding that the U.S. Supreme Court had repeatedly reviewed it and found it constitutional.  The state’s high court noted that the U.S. Supreme Court had refused to hear the appeal of one of the Florida defendants challenging the state system, even after it made the Arizona decision....

The state Supreme Court called in 2005 for the state Legislature to make changes to the state’s death penalty law to require unanimity in jury recommendations.  But state lawmakers didn’t act.  In the ensuing years, the state Supreme Court continued to hold that the state’s death penalty system is constitutional.  One of those rulings came in the Escambia County case of Timothy Lee Hurst, convicted of murdering coworker Cynthia Harrison in a robbery at Popeye’s restaurant on May 2, 1998....

At the conclusion of the second sentencing hearing [in Hurst's case], jurors returned a verdict of 7-5 in favor of death.  Hurst appealed again to the state Supreme Court, which upheld his death sentence, rejecting arguments that included assertions the jury should have been required to unanimously find a specific aggravating circumstance and unanimously decide his sentence.

The state Supreme Court noted in its Hurst ruling that it has previously concluded that the U.S. Supreme Court ruling in the Arizona case did not require juries to make specific findings of aggravating factors or to make unanimous decisions regarding death sentences. The Florida court refused to revisit its prior rulings.

Hurst also argued the jury should have been required to determine whether he was mentally disabled, a finding that would have barred the implementation of the death penalty.  After hearing testimony from witnesses and experts, the trial judge ruled that Hurst was not mentally disabled.  The state Supreme Court ruled that although some states require such findings be made by juries, Florida is not one of those states, and the U.S. Supreme Court has not mandated that procedure.

Hurst appealed to the U.S. Supreme Court, which agreed to hear the case in its next term, which begins in October.

June 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, June 27, 2015

"Will New Bipartisan Criminal Justice Reform Plan Fly?"

The question in the title of this post is the headline of this notable new Crime Report piece by Ted Gest discussing the prospects for the newly introduced SAFE Justice Act (basics here). Here are excerpts:

As support for criminal justice reform has spread, many states have left the federal government behind when it comes to reducing their prison populations. There were 208,598 federal inmates as of yesterday, dwarfing the state with the most in the last national count: Texas, with about 168,000. Prisons are consuming at least a quarter of the U.S. Justice Department's budget, putting a squeeze on other spending.

Until yesterday, most discussion of the issue in Congress has taken place in the Senate, where several members, ranging from conservative Republican Rand Paul of Kentucky to liberal Democrat Cory Booker of New Jersey have filed competing bills that would change federal sentencing laws and help inmates return successfully to society.

Now, two key House members from both major political parties are weighing in with a "Safe, Accountable, Fair, and Effective Justice Act"-- dubbed SAFE -- they suggest could go even farther than the Senate measures.

They are James Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, who have long headed the House subcommittee dealing with crime. (Scott recently moved from the panel, officially called the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and turned his role over to Rep. Sheila Jackson Lee of Texas.)...

Sensenbrenner and Scott headed a House over-criminalization task force that has spent the last year and a half holding hearings on the issue that led in large part to the new bill. Sensenbrenner contended yesterday that over-criminalization is a "major driver" of the federal prison count, although he conceded that no one know how many such cases are filed.

Liberals are much more interested in drug cases, arguing that mandatory minimum penalties dating from the 1980s have ensnared thousands of Americans serving terms of five or ten years or longer for relatively minor violations. Scott said that two-thirds of federal inmates serving mandatory terms in drug cases are not narcotics kingpins. He argued that in the end, the nation's high incarceration rate "generates more crime than it stops."

One notable aspect of yesterday's announcement was the presence of a wide range of organizations supporting the bill, including the American Civil Liberties Union, the conservative Koch Industries, the American Conservative Union Foundation, Families Against Mandatory Minimums, and the Police Foundation.

Helpfully, this article provides this link to this full text of the new House proposal which is formally the "Sensenbrenner-Scott Over-Criminalization Task Force Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015."

Prior related post:

June 27, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?

Gay Prison MarriageLots of folks a lot more invested in gay rights and broad constitutional jurisprudence likely have a lot more important things to say than I do about the Supreme Court's landmark marriage ruling in Obergefell v. Hodges.  But given that, as noted in this prior post, the Oklahoma Corrections Department halted all prison weddings while awating the Obergefell ruling, I could not resist here wondering aloud about whether prison officials will be long struggling with the reach of the ruling as the intersection of prisoner rights and the fundamental right to marry creates new and complicated administrative concerns. 

As the opinion for the Court in Obergefell mentioned, decades ago in Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court "held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry." The Obergefell ruling further mentions Turner in a notable passage that perhaps takes on extra meaning when one considers the loneliness and fear that surely accompany long-term incarceration for many prisoners:

And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U.S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14).  Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

Of course, Supreme Court jurisprudence has long explained that prisoners have greatly diminished rights (e.g., they have no reasonable expectation of privacy and thus few if any traditional Fourth Amendment rights), and that the rights they retain behind prison walls must give way to reasonable prison regulations. More specifically, in Turner, the Court expressly stated that "legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry."

Nevertheless, in Turner the Court rigorously questioned claims by Missouri officials rationales for strict limits on prisoner marriages and concluded that an "almost complete ban on the decision to marry is not reasonably related to legitimate penological objectives." Consequently, in the wake of the the Obergefell ruling, I read Turner to preclude prison officials from simply asserting, without substantial evidence, that it will never allow prisoners to have a same-sex marriage. (Notably, only one current Justice was on the Court when Turner was decided, and Justice Scalia joined the opinion for the Court authored by Justice O'Connor striking down the Missouri prison's "almost complete ban on the decision to marry.")

June 27, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

Friday, June 26, 2015

How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?

After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US.  (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.

But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences.  I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims.  But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim.  In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.

That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid. 

Some prior posts on Johnson and its possible impact (last two from before the opinion)

June 26, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (17)

A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson

As noted here, the US Supreme Court issued a (very?) big constitutional criminal procedure ruling today in Johnson v. US.  I will need at least a few hours (if not a few days and certainly many reads) to really figure out how big a deal Johnson is.  But I can and will here, at the risk of prioritizing speed over accuracy, quickly type out the first big 5 thoughts that have come to mind concerning the  line-up of jurists in the Johnson ruling:

1.  It is truly amazing (and quite significant) that Justice Scalia was able to convince five of his colleagues (including three of the four newer Justices) to issue a big pro-defendant constitutional criminal procedure ruling in Johnson.

2.  It is very significant that Chief Justice Roberts joined Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.

3.  It is interesting that Justice Kennedy briefly concurred separately and did not join Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.

4. It is notable that the concurrence authored by Justice Thomas is longer than the majority opinion (and I suspect it was going to be the opinion for the Court before Justice Scalia convinced his colleagues to order rehearing on the constitutional issue the majority addressed).

5. It is not at all surprising Justice Alito alone dissents, and I may start formally counting how many (non-capital) criminal cases have been (and will in the coming years) be defined by that reality.

June 26, 2015 in Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague

In a very important Fifth Amendment criminal procedure ruling, though one certain to be overlooked because of an even more important Fourteenth Amendment ruling issued right before it, the Supreme Court this morning in Johnson v. United States, 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  Justice Scalia wrote the main opinion for the Court (which carried five other Justices, including the Chief), and here is a key paragraph from the begining of the opinion's legal analysis:

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause [of ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.

I will need some time to review and reflect to figure out how big a ruling Johnson may prove to be. But the basic reality that the defendant prevailed here on the broadest constitutional ground (and especially the fact that only Justice Alito was prepared to rule for the federal government on appeal) further proves a point I have been making since Blakely was handed down over a decade ago: The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

That all said, and of particular significance for ACCA sentences that are built on convictions that do not depend on interpretations of the residual clause, the Court's opinion in Johnson ends with this critical and clear discussion of the limits of the holding:

We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.

June 26, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders

SS-602x399As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill.  Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population.  The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms.  The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years.  Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted.  The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott.  He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime.  “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress.  Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, June 25, 2015

Seeking SCOTUS predictions: what should we now expect in Glossip and Johnson?

I feel like the Supreme Court did me a solid this morning by deciding two non-criminal cases and continuing to keep everyone waiting for the two sentencing cases I have been following most closely this term: Glossip concerning execution protocols and Johnson concerning the constitutionality and application of the federal Armed Career Criminal Act.  I say that because I am due to be off-line and out-of-the-office most of the rest of today, and I am somewhat relieved I do not yet need to read and react to the (many divided and lengthy?) opinions to come from the Justices in these two cases.

In part because I am going to be off-line for a while, and in part because SCOTUS gave us a few more tea leaves to read with its rulings today and earlier this week, I am eager to hear from folks about what they are now expecting in Glossip and/or Johnson.  I think it is now a near certainty that we are going to get (deeply?) divided rulings in both cases, and I have long assumed Glossip would come down to a 5-4 vote and that Johnson might end up the same.  But as the days go by without a ruling, I am getting more and more excited (or should I say concerned) that both Glossip and Johnson will be big, lengthy and consequential.  

Do others agree?  Do folks expect the rulings tomomrrow?  Monday?  Later?

Do folks now have predictions about who will be writing for the Court and will be writing the main dissents in each case?

Does anyone share my fear that we might get a badly splintered Court in both cases?

June 25, 2015 in Who Sentences? | Permalink | Comments (11)