Wednesday, June 11, 2014

Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform

Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events.  Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:

The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics.  Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues.  Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment."  In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.

June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Could the Tea Party take down of Eric Cantor increase the chances of more federal sentencing reform?

The huge federal political news this week is the suprising and noteworthy primary defeat of House Majority leader Eric Cantor to relative unknown college professor David Brat, who seems to be a variation on the Tea Party brand.  This Fox News piece provides a good review of what may and may not explain Cantor's defeat and what this outcome may or may not mean for national politics.  

As the title of this post highlights, and as regular readers will not be surprised to see, I am already thinking about what the notable new GOP election news and the shakeup in GOP House leadership could mean for federal sentencing reform.  To my knowledge, neither out-going leader Cantor, nor any of the names being discussed as his possible replacement, have been vocal opponents or proponents of the Smarter Sentencing Act or other recent statutory sentencing reform proposals working their way around Capitol Hill.  But, as regular readers know well, the Tea Party wing of the GOP has emerged as a significant supporter of significant federal sentencing reforms. 

Senator Rand Paul, as this new local article highlights, continues to tour the nation talking up "criminal-justice reforms, sentencing reform, restoration of voting rights."  Another Tea Party favorite, Senator Mike Lee, is a cosponsor of the Smarter Sentencing Act, and Senator Ted Cruz supported the SSA in the Senate Judiciary Committee.  In addition, most of the members of the House who have talked at all about sentencing reform have tended to be on the Tea Party rather than on the establishment side of the GOP.

Because I have never been able to understand, let alone reasonably predict, inside-the-Beltway happenings, I am not going to assert that the Smarter Sentencing Act or other federal sentencing reform proposals have a much greater chance of passage now than they did earlier this week.  But I am going to keep reminding folks that any good news for the more-libertarian-leaning Tea Party wing of the GOP is likely also good new for those eager to see changes in the federal criminal justice status quo.

Some older and recent posts on the "new politics" of sentencing reform:

June 11, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, June 10, 2014

DOJ advocates for "limited retroactivity of the pending drug guideline amendment"

As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board.  And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.  

As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines.  Here are the basics of the compromise advocated by DOJ via its submitted testimony:

After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....

Assessing whether the amendment should be applied retroactively requires balancing several factors.  The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders.  While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....

Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....

Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.

With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.

Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.

Some recent related posts:

June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Noting SCOTUS continues to dodge (inevitable?) ruling on Miller retroactivity

This Philadelphia Inquirer article, headlined "U.S. Supreme Court won't hear case of Pa. juveniles serving life," reports on the only significant sentencing news that has come from the Supreme Court so far this week. Here are the details (with original paragraphs re-ordered a bit for exposition):

Pennsylvania has more inmates convicted as juveniles for murder and sentenced to life without parole than any other place in the world.  Pennsylvania has more than 500 people convicted as juveniles and given mandatory life sentences — 300 of them from Philadelphia, advocates say.  The United States is the only country that doles out mandatory life sentences to juveniles. And Pennsylvania has 25 percent of such offenders, advocates say - more than any other state or nation....

Monday [the] U.S. Supreme Court ... declined to hear an appeal by juvenile-justice advocates to revisit the sentences of those prisoners.  "We are obviously disappointed," said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, a national, nonprofit, public-interest law firm for children, based in Center City. The center had brought the appeal to the high court....

In June 2012, the Supreme Court ruled that children under 18 convicted of homicide could no longer receive mandatory sentences of life without parole.  Such automatic sentences, the court found, are unconstitutional, violating the Eighth Amendment's prohibition against cruel and unusual punishment.  Life sentences for juveniles committing murder are allowable; they just cannot be mandatory....

The ruling caused confusion, however.  While it said that juveniles committing murder could not receive mandatory sentences of life without parole in 2012 and beyond, it did not address inmates already serving such sentences.

In October 2013, the Pennsylvania Supreme Court stepped into the void. It found that the U.S. Supreme Court's ruling could not be applied retroactively. Anyone given a mandatory sentence of life without parole who had exhausted all appeals by 2012 would not fall under the federal ruling, the state court said.

Advocates were troubled by the notion that the year a person was sentenced would determine whether he or she would face life without parole.  "The vagaries of timing should not determine if a juvenile should spend the rest of his or her life in prison with no possibility of parole," according to a Juvenile Law Center statement last year.

The center, along with the Defender Association of Philadelphia, appealed the Pennsylvania decision to the U.S. Supreme Court.  Monday's nondecision was the result. "This is a surprise, and not a very good one," said Bradley Bridge, an assistant defender with the association. "It's puzzling."  Bridge said Pennsylvania had become the third state to say the U.S. Supreme Court ruling is not retroactive.  Six states have gone the other way.

Such a split cannot stand for long, said Emily Keller of the Law Center.  Bridge agreed, saying it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas [one of the six states that allows the ruling to be retroactive] gets relief.  That is not a just result." At some point, Keller and Bridge said, the U.S. Supreme Court will have to make a ruling that will stand for every state.

Hugh Burns, chief of the appeals unit of the Philadelphia District Attorney's Office, agreed that "it's not fair" that "those who take a life after a certain date get a break others do not." But, he added, "law is all about line drawing."

More important, Burns said, he takes issue with the U.S. Supreme Court's saying that a juvenile's young brain can't determine right from wrong.  "The idea that a person's brain isn't developed to understand that murdering someone is wrong and subject to serious penalty is to me very odd," he said.

As the title of this post is meant to suggest, I think it is probably only a matter of time before the Supreme Court takes up the issue of whether its 2012 Miller ruling is to be applied retroactively.  But I am not too surprised that the Justices have decided to continue to dodge this issue for the time being, especially in the context of a direct appeal from a state Supreme Court ruling as in Pennsylvania.  I expect the Justices will eventually take up this issue via a traditional habeas appeal from a federal circuit court, but only if and when a significant circuit split develops on this issue in the federal courts.

June 10, 2014 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, June 09, 2014

"Retuning Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis"

The title of this post is the title of this notable essay by Jonathan Rapping that I just came across on SSRN. Here is the abstract:

The Gideon Court recognized a truism: until we ensure that poor people have access to the same quality of counsel that people with means can pay for, we cannot have equal justice. But fifty years later, the promise of equal justice has not materialized. In so many ways, our criminal justice system is less fair; less equal; less humane.  Since Gideon was decided, the U.S. imprisonment rate has nearly quadrupled, and the percentage of people charged with crimes who are poor has roughly doubled.  As compared to 1963, poor people today are more likely to be arrested, convicted, and sentenced to lengthier prison terms than their wealthier counterparts.

Given these depressing developments, some have questioned whether the right to counsel has made much of a difference for indigent defendants and whether it is even worth defending as a force to end the injustices of the system.  This Essay takes a different view of the problem and argues that a strong public defender system is necessary to achieve systemic reform.  This is so both because of the role the public defender plays in interrupting a process that is increasingly designed to convict and punish poor people en masse, and because of the potential of a strong community of public defenders to galvanize the movement needed to push for important policy reform.

June 9, 2014 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity

As reported in this official notice, a public hearing of the United States Sentencing Commission is scheduled for Tuesday, June 10, 2014, and the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Amendment 782."  That Amendment, in short form, reduces the guidelines applicable to drug trafficking offenses by two levels in most settings.  And, as set forth in this detailed USSC staff analysis, as many as "51,141 offenders sentenced between October 1, 1991 and October 31, 2014, would be eligible to seek a reduction in their current sentence if the Commission were to make the 2014 drug guidelines amendment retroactive.

The hearing agenda and the list of the 16 witnesses scheduled now to testify at this hearing is available here. I am pretty confident that most of these witnesses will advocate that the new drug guidelines be made retroactive, but I am not entirely certain about what positions will be advocated by the Department of Justice and some of the law enforcement witnesses. In addition, advocates on both sides likely will articulate in different ways with distinct emphasis why they think retroactivity for these new reduced drug guidelines would be a good or bad idea.

I am hopeful that by this time tomorrow the written testimony to be submitted by the witnesses with be linked on the USSC's website.  In the meantime, I will be re-reading  this detailed USSC staff analysis in order to have a better understanding of the 50,000+ federal prisoners whose fates could be impacted by the retroactivity decision.

June 9, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"What Is Federal Habeas Worth?"

The title of this post is the title of this interesting new piece on SSRN authored by Samuel Wiseman. Here is the abstract:

Federal habeas review of state non-capital cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is widely regarded as deeply flawed, producing a huge volume of costly litigation and very little relief.  Many scholars have called for AEDPA’s repeal and a return to more robust federal review, but recently, several prominent commentators have suggested more dramatic change — radically limiting federal habeas in exchange for more fruitful reform efforts. In an era of limited criminal justice budgets and an increasing focus on efficiency, these proposals are likely to proliferate.  This article lays out a needed empirical and theoretical foundation for the debate over habeas’s future.  To date, no one has estimated how much federal habeas actually costs (and thus the potential savings from eliminating it), a figure necessary for assessing the feasibility and desirability of any radical reform scheme.  This article fills that gap, using available budget data, public records requests, and correspondence with state officials to estimate that figure at roughly $260 million per year.

This sum, a tiny fraction of criminal justice spending and barely a blip in state and federal budgets, places recent reform proposals in a new light: it is possible that these proposals have failed to gain more traction because they would not free up sufficient funds to please either habeas proponents or opponents.  The federal habeas system is one of the only mechanisms through which federal courts may reveal state violations of defendants’ constitutional rights, and it retains both instrumental and symbolic value.  Further, getting rid of the watered-down version of individual review that remains under AEDPA would likely be difficult to reverse, making a more robust system harder to realize in the future. Any proposals to curtail this system in exchange for state reforms therefore have a high barrier to overcome with habeas proponents.  For federal habeas opponents, the current federal system is not particularly costly, either financially or otherwise, since so few petitioners obtain relief.  Given the small cost of the current system, and thus the financial savings available, radical form is probably unlikely, regardless of the desirability of any individual proposal.  The article therefore proposes more modest reforms to make the current system more functional.  One such step is ensuring that federal habeas under AEDPA, despite statutory silence, is not blind to the quality of state postconviction processes.

June 9, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Two years after Miller, Iowa still muddling through juve sentencing

As highlighted by this local article, headlined "Iowa juvenile sentencing rules in legal limbo," the Hawkeye state is still struggling with how to revamp its juvenile sentencing rules to comply with modern Eighth Amendment restrictions. Here are the details:

Iowa prosecutors want clarification on the state’s sentencing laws for juveniles convicted of murder. The U.S. Supreme Court in 2012 struck down the use of mandatory life terms in prison for defendants who committed murder when they were under 18. The court ruled that judges have to take a person's age and the severity of crime into consideration.

Iowa legislators have been working since then to determine whether to change state sentencing rules. Rep. Chip Baltimore, R-Boone, chairman of the House Judiciary Committee, said lawmakers are struggling to decide the best approach given the “hodgepodge of judicial rulings” that have left in question what is the minimum number of years a juvenile who commits first-degree murder should be required to serve in prison before being eligible for parole.

“It’s a situation that we’re trying to deal with the amorphous concept of cruel and unusual punishment not only as it’s interpreted through the federal constitution but the Iowa Supreme Court has decided that the cruel and unusual punishment provision in the Iowa Constitution means something different that what it means at the federal level,” he said.

Iowa Assistant Attorney General Kevin Cmelik said prosecutors want clear guidelines. “There is no clear answer as to what is required by the law right now because we don’t have a statute that’s applicable anymore," he said.

Prosecutors like Black Hawk County Attorney Tom Ferguson tried to get lawmakers to set a mandatory minimum of at least 35 years for juveniles convicted of first-degree murder, but it failed to gain traction last legislative session....

Prosecutors say judges should have discretion to re-impose a life sentence with or without parole but they worry that lesser penalties potentially could create a situation where someone sentenced for second-degree murder could be facing more prison time that an offender found guilty of a Class A crime.

Forty-eight youth in Iowa who have been sentenced to life in prison without the possibility of parole since 1964, state data shows.

June 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, June 08, 2014

"The Failure of Mitigation?"

The title of this post is this notable new paper by Robert J. Smith, Sophie Cull and Zoe Robinson now available via SSRN. Here is the abstract:

A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders.  For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma?  The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime.

This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America.  Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders.  Though only a first step, our findings suggest the failure of the Supreme Court’s mitigation project to ensure the only offenders subjected to a death sentence are those with “a consciousness materially more depraved” than that of the typical murderer.  Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rival — and perhaps outpace — those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility. 

June 8, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, June 07, 2014

Highlighting challenges when alternatives to incarceration become state priorities

The front-page of my own Columbus Dispatch has this interesting article about the Ohio's sentencing reform efforts and the challenges posed by a troublesome offender for a sentencing system that now seeks to emphasize alternatives to incarceration.  The article is headlined "Church theft case tests rule on sentencing," and here are excerpts:

Cash Yoakem admitted that he broke into 29 churches and stole pretty much anything he could find — even communion trays — to fuel his drug habit. He has pleaded guilty to 44 counts of breaking and entering, all fifth-degree felonies, and the 26-year-old Chillicothe man will stand before a judge on Thursday and ask for leniency. Ross County Prosecutor Matt Schmidt will seek four years in prison for him instead.

Schmidt says that if any thief deserves to go to prison, it is Yoakem, who robbed from some of the churches more than once: “He broke into, damaged and stole from places of worship that many in this community consider sacred, thereby damaging their sense of sanctity.”

But under Ohio’s revamped criminal-sentencing laws, Yoakem doesn’t qualify for prison. Probation, yes, or a community-based therapeutic program, but he doesn’t meet the state’s latest criteria for prison for low-level, nonviolent, first-time offenders. Schmidt and Yoakem’s attorney each say this case sets the stage for what could be the first real test of the constitutionality of Ohio’s sweeping criminal-sentencing reforms that took shape in 2011.

At issue is a provision of the law that says that if a court cannot find a suitable sanction for a defendant who does not qualify for prison under the new guidelines, the judge can ask the Ohio Department of Rehabilitation and Correction to make a suggestion as to what local programs are available. The department then can either make a recommendation — which the judge is bound by law to follow — or say it doesn’t have a suggestion, in which case the judge then can send that person to prison if he chooses.

State records show that since the reforms took place, judges in 11 counties have sought a state recommendation a total of 27 times; 12 defendants went to prison as a result and 15 got probation. In Yoakem’s case, the Ross County Common Pleas Court asked for such a recommendation and the state gave none. As a result, it is expected that Judge Scott Nusbaum will sentence Yoakem to prison when he’s due in court on Thursday.

Some judges and prosecutors have long complained about this provision of the sentencing reform. Because one goal of the legislature when it enacted the changes was to see fewer people go to prison, defense attorneys have hailed the changes as positive. In this case, however, it is the defense attorney challenging the constitutionality of the law.

James Szorady, an assistant state public defender and Yoakem’s attorney, said the state prisons department’s involvement is a clear violation of the constitutional requirement for a separation of powers by the legislative, executive and judicial branches of government. “My argument is that the department is now holding sway over the court,” Szorady said. In his sentencing memo to the judge, he writes: “This is clear co-mingling of government branches ... and it is unconstitutional beyond a reasonable doubt.”

State Sen. Bill Seitz, a Cincinnati Republican who was instrumental in writing the changes, said there’s nothing unconstitutional about it because the Department of Rehabilitation and Correction is taking only an advisory role....

The Ohio Judicial Conference, a judges’ association created by state law, opposed this part of the sentencing reform since its inception and has asked the legislature several times to remove it because it’s a clear conflict, said Mark R. Schweikert, executive director of conference. “Frankly, I’m surprised a case hasn’t yet made it to the Ohio Supreme Court,” he said.

Schmidt said he thinks this is exactly where this one will end up. He said the reforms have hampered prosecutors and judges in their ability to punish certain offenders properly, simply to save the state money on housing prisoners, and this case is the best illustration of that so far.

“I’ve been beyond frustrated,” Schmidt said. “The sentencing reforms are not solving crimes and not rehabilitating people. They’re just making it harder to punish people, which is part of what a criminal sentence is about.”

June 7, 2014 in Criminal Sentences Alternatives, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, June 06, 2014

More critical analysis of NRC mass incarceration analysis from John Pfaff

As I highlighted in this post late last week, through a series of astute posts at PrawfBlawg, Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the National Research Council's analysis of mass incarceration.  John's first five posts in that series are linked here, and now below I have linked his latest in this important series:

June 6, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Notable new federal drug war frontier: "DEA targets doctors linked to medical marijuana"

The title of this post comes from the headline of this lengthy Boston Globe report, which gets started this way:

US Drug Enforcement Administration investigators have visited the homes and offices of Massachusetts physicians involved with medical marijuana dispensaries and delivered an ultimatum: sever all ties to marijuana companies, or relinquish federal licenses to prescribe certain medications, according to several physicians and their attorneys.

The stark choice is necessary, the doctors said they were told, because of friction between federal law, which bans any use of marijuana, and state law, which voters changed in 2012 to allow medical use of the drug.

The DEA’s action has left some doctors, whose livelihoods depend on being able to offer patients pain medications and other drugs, with little option but to resign from the marijuana companies,where some held prominent positions.

The Globe this week identified at least three doctors contacted by DEA investigators, although there may be more. “Here are your options,” Dr. Samuel Mazza said he was told by Gregory Kelly, a DEA investigator from the agency’s New England Division office. “You either give up your [DEA] license or give up your position on the board . . . or you challenge it in court.”

Cross-posted at Marijuana Law, Policy and Reform

June 6, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Why those who follow sentencing and corrections reform should be following drones

Drone-615x345Regular readers and all my students know that I generally believe any and every important public policy issues is related in some significant way to sentencing and/or corrections issues.  More support for this view comes from this local article highlighting why and how drone law and policy could have am impact on sentencing law and policy.  The article is headlined "Drones over Ohio prisons? Officials mull the idea," and here are excerpts:

The Ohio Department of Rehabilitation and Correction has expressed interest in using drones to monitor the grounds around prisons, said Andrew Parker, director of WSRI. Drones would be able to not only sense if inmates were trying to escape, but also if people on the outside are trying to smuggle items into the prison.

“We’ve heard a lot of information about the precision agriculture uses of drones but this is another example of a use people might not have originally envisioned,” Parker said.

Drone sensor systems such as infrared sensors would be able to detect movement around the prisons in a less expensive way than setting up security sensors around the perimeter of the grounds. ODRC has considered using such drones as a service, Parker said, adding such a service could begin before the end of the year.

A spokesperson for the Ohio Department of Corrections confirmed officials were on site in Wilmington today for a demonstration, but said they would need to evaluate and discuss the demonstration before they could comment further on the idea.

I am not sure what civil liberties groups and Senator Rand Paul and others who've expressed concerns about drones might have to say about this use of the technology. But I suspect that prison guard unions are not likely to be too excited by the prospected of some other their jobs being replaced by the latest brave-new-world innovation.

June 6, 2014 in Prisons and prisoners, Technocorrections, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, June 05, 2014

Will Canada's courts continue to strike down mandatory minimums as unconstitutional?

The question in the title of this post is prompted by this interesting recent commentary in a Canadian paper sent my way by a helpful reader.  The piece by Lisa Kerr is headlined, "Mandatory minimums for drug crimes have no future in Canada: As the B.C. Court of Appeal prepares to hear the first major challenge to mandatory minimums, there’s reason to think the policy will be rightly short-lived."  Here are excerpts:

This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.

New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.

In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S....

The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.

Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.

In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.

Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.

June 5, 2014 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Split Fourth Circuit highlights ugly mess of SCOTUS "crime of violence" jurisprudence

If you are sentencing nerdy like me, you often wonder what crimes are properly considered "crimes of violence" under federal law.  And, if you are sentencing nerdly like me, you also know the Supreme Court's work on this issue sometimes makes very hard to answer whether a particular state crime is a "crime of violence" for federal sentencing law purposes.  This reality is on stark display in a 40-page opinion handed down today by a Fourth Circuit panel in US v. Martin, No. 12-5001 (4th Cir. June 5, 2014) (available here).

At issue in Martin is the seemingly simple question of whether the defendant's prior Maryland conviction "for fourth-degree burglary constituted a crime of violence under U.S.S.G. § 2K2.1(a)(2)."  But each judge on the panel had something distinct to say on the matter: "Chief Judge Traxler wrote the majority opinion, in which Judge Diaz joined.  Judge Diaz wrote a separate concurring opinion. Judge O’Grady wrote a dissenting opinion."   Gluttons for jurisprudential punishment will want to read the entire Martin ruling, but others will get a feel for this story from portions of Judge Diaz's concurrence:

This case raises a vexing question regarding the application of the crime of violence enhancement found in the Guidelines: To what extent does Begay’s “similar in kind” test for analyzing offenses under the residual clause survive Sykes v. United States, 131 S. Ct. 2267 (2011)?  Specifically, would the Supreme Court apply that test in determining whether Martin’s fourth degree burglary conviction under Maryland law qualifies as a crime of violence? Or would the Court again change course?...

“[T]o put it mildly,” the residual clause is “not a model of clarity.” See James, 550 U.S. at 217 (Scalia, J., dissenting).  The clause “is nearly impossible to apply consistently,” and the Supreme Court’s jurisprudence “has created numerous splits among the lower federal courts.” See Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J., concurring in the judgment); cf. United States v. Vann, 660 F.3d 771, 797 (4th Cir. 2011) (en banc) (Davis, J., concurring) (“At the end of the day, it may well be that Justice Scalia is right: that the residual clause of the Armed Career Criminal Act is unconstitutionally vague.”)

The Supreme Court has struggled mightily to make sense of this sphinx-like provision, but the clause remains an elusive target.  We are told that a prior conviction triggers the sentencing enhancement when “the risk posed by [the offense at issue] is comparable to that posed by its closest analog among the enumerated offenses.”  See James, 550 U.S. at 203 (majority opinion).  But, at least in some cases, the offense must also be “roughly similar, in kind as well as in degree of risk posed, to the [enumerated] examples.”  See Begay, 553 U.S. at 143.  To be roughly similar in kind, the crime must be “purposeful, violent, and aggressive.” See id. at 145.  Fear not though, because “[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk.” See Sykes, 131 S. Ct. at 2275.  As Justice Scalia noted in dissent in Sykes, however, why the inquiry will often be redundant, and when it will not be, “are not entirely clear.” See 131 S. Ct. at 2285....

Beyond this case, however, “[t]he Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come.” Id. at 2287 (Scalia, J., dissenting).  I urge Congress or the Court to shed light on this “black hole of confusion and uncertainty.”  See Vann, 660 F.3d at 787 (Agee, J., concurring).

June 5, 2014 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

New poll purports to show "New Low in Preference for the Death Penalty"

This new ABC News article, which has the headline quoted above, reports that a "majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls." Here is more about the latest findings from this latest poll:

Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty – the fewest in polls dating back 15 years. The result follows a botched execution by lethal injection in Oklahoma in late April.

Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That’s down sharply from 80 percent in 1994....

Another result finds that most supporters of capital punishment hold that position even if lethal injections became unavailable or were outlawed. Just 16 percent of death penalty supporters say either of those would constitute grounds for doing away with capital punishment; eight in 10 would shift to another method, e.g., the electric chair or gas chamber....

Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....

Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.

There’s also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that’s generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.

Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It’s 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It’s 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.

In terms of change, preference for the death penalty vs. life in prison is down by 8 points since 2006, with the most pronounced drops (by 10 to 20 points) among non-evangelical white Protestants, seniors, nonwhites, less-educated adults, liberals and independents.

June 5, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, June 04, 2014

Over 1000 faith leaders sign letter in support of Smarter Sentencing Act

As highlighted by this article, over "1,100 clergy and faith leaders urged Congress to pass legislation reducing federal mandatory minimum sentences for drug offenses in a June 3 letter to party leaders in the House and Senate."  Here is more about the prominent voices joining the chorus advocating for federal sentencing reform:

A total of 1,129 signers asked Senate Majority Leader Harry Reed (D-Nev.), Senate Minority Leader Mitch McConnell (R-Ky.), House Speaker John Boehner (R-Ohio) and House Minority Leader Nancy Pelosi (D-Calif.) to support the Smarter Sentencing Act, a bipartisan measure that passed the Senate Judiciary Committee in January. The faith leaders said tough sentencing laws passed in the 1980s “war on drugs” disproportionately affect minorities....

“For too long, Congress has ignored the consequences of the harsh sentencing policies it approved during the 1980s and the disproportionate harm it has caused people of color and those convicted of low-level offenses,” the letter said. “The Smarter Sentencing Act is a step towards addressing racial injustice as well as reducing mass incarceration that characterizes our current justice system.”

Roy Medley, general secretary of American Baptist Churches USA, was a lead signer for the letter coordinated by the Faith in Action Criminal Justice Reform Working Group, a coalition of 43 faith organizations chaired by the United Methodist General Board of Church & Society.

June 4, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3) | TrackBack

Defendant's appeal gets his sentence increased(!) from 30+ years to LWOP

The First Circuit handed down a remarkable ruling in US v. Sevilla-Oyola, No. 12-1264 (1st Cir. June 3, 2014) (available here).  As the start and end of the 30+ page majority opinion highlights, this case provides a remarkable reminder to becareful what you ask for when pursuing an appeal:  

Sometimes it's better to quit while you're ahead. The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola ("Sevilla"), each one shorter than the last.  Still dissatisfied, Sevilla asks us for another bite at the sentencing apple before a different district judge.  To support his claim before this court, Sevilla says the district judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment.  Alternatively, he says that even if the judge's later actions were authorized, they were plagued by additional errors.

We agree that the district judge lacked statutory authority to act after he entered the original sentence and that the initial plea colloquy was flawed.  But we cannot say that the imperfections Sevilla cites justify setting aside the first judgment.  Nor can we say, based on the arguments Sevilla puts forth before us, that the first sentence was unreasonable. Accordingly, the first and most severe sentence imposed by the district judge — 327 months plus a consecutive term of life imprisonment — stands.  And Sevilla — who until today was facing a total sentence of 405 months — will likely find himself wishing he had left well enough alone....

We acknowledge that our result may seem harsh.  Where Sevilla once faced 405 months' imprisonment, now he must grapple with a life sentence.  But Sevilla chose to proceed with this appeal knowing he risked a higher sentence.

At oral argument, we explicitly asked Sevilla's counsel if Sevilla understood that this appeal could subject him to a sentence based on consideration of his alleged involvement in the Pitufo murder and longer than the 405-month term ultimately imposed by the district judge. We sought confirmation that Sevilla wished to appeal anyway.  On the spot, counsel asserted that Sevilla understood these risks, but he agreed to call Sevilla to confirm.

A few days later, counsel filed an unresponsive motion that did not address whether Sevilla understood the risks he faced by seeking vacation of the third and most favorable 405-month sentence. We then entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though "re-sentencing in this matter presented the risk to [Sevilla] of receiving a sentence greater than his current sentence of 405 months and up to life imprisonment, particularly if the district court were to consider either [Sevilla's] alleged involvement in the 'Pitufo' murder or calculate a base sentencing level and make appropriate upward departures." (Emphasis in original.) Counsel filed a second motion saying he had explained those risks to Sevilla and Sevilla still wished to proceed.

While our order focused on the risk of a life sentence upon re-sentencing before the district court, the propriety of a life sentence was clearly before us in this appeal. And because we expressly warned Sevilla that a life sentence remained on the table, though the outcome we reach is not what Sevilla hoped for, at least it should come as no surprise.

Judge Torruella authored a lengthy dissent to the majority ruling, which gets started and ends this way:

Carlos Sevilla-Oyola ("Sevilla") was sentenced by the district court to 405 months in prison. On appeal, he brings to our court's attention numerous errors. The majority, finding several of these claims meritorious, has granted a most unusual form of "relief" — life in prison. From that irrational result, I respectfully dissent....

Sevilla's sentencing was fraught with mistakes, misstatements, and omissions on the part of the sentencing judge.  The unique posture of this case, arising from a sentencing replete with errors of the court's own making, and concerning an error that no party seeks to defend, is well fit for a simple resolution: remand for a correction of the Rule 11 error and imposition of a new sentence.  Instead, the majority now sua sponte chooses to summarily impose the first sentence, which the district court judge himself determined to be erroneous and improper, and which no party has sought to defend on appeal.  In so doing, the majority — from a cold appellate record, and in contravention of the intent and discretion of the sentencing judge — has increased Sevilla's sentence from just under thirty-four years to life in prison.  This life sentence is based in no small part upon uncharged conduct which the district court, in its discretion, ultimately deemed improper to consider in this case.

In attempting to defend this resolution, the majority states that Sevilla was put on notice of the fact that, upon remand and resentencing, his ultimate sentence might be greater than the 405 months on appeal.  That notice, however, never so much as hinted at the idea that our court might short-circuit the accepted practice of remand, which would have provided Sevilla with a chance to be heard at a new sentencing hearing, and instead simply impose a sentence significantly higher than that from which he appealed.[FN 36]

From this result, a pyrrhic victory if there ever was one, I respectfully dissent.

[FN 36] I know of no other case — and the majority cites to none — in which an appellate court undertook to put in place a higher sentence than that from which the defendant's appeal was taken.  The unusualness of this situation is surely cold comfort to Sevilla, who (as the majority suggests) will undoubtedly "wish[] he had left well enough alone."  I hope, however, that it might mitigate the chilling effect of this result, such that future defendants are not made fearful of bringing even meritorious claims on appeal. While the majority seems to chide Sevilla for not "quit[ting] while [he was] ahead," I see no humor or harm in a defendant attempting to bring to our court's attention a heavily flawed sentencing process.  If Sevilla is seeking "another bite at the sentencing apple," our court would do well to recognize that this is because his first was so thoroughly rotten.

I presume and expect that this defendant will not pursue en banc review and/or Supreme Court review. I wonder if he should worry that such further appellate efforts might risk earning him a death sentence.

June 4, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, June 03, 2014

After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?

The old saying goes, "If at first you don't succeed, try, try again."  But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again.  The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:

Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.

Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.

His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein.  Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed.  An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.

Broom's appeals in federal court are on hold while the state court hears the constitutional arguments.  Broom has been back on death row since.  No new execution date has been set.

In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work.  The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments.  A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.

Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing....  The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins. 

For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky.  In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence.   But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence.  Stay tuned.

June 3, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Michigan Supreme Court holds that Gov cannot revoke a valid sentence commutation

Today in Makowski v Governor, No. 146867 (Mich. June 3, 2014) (available here), the Michigan Supreme Court declared unanimously that "the Michigan Constitution does not grant the Governor the power to revoke a valid commutation."  Here is an excerpt from the start of the syllabus to the decision which provides context for and summarizes the context of the ruling:

Matthew Makowski filed an action in the Court of Claims against the Governor and the Secretary of State, seeking a declaratory judgment and injunctive relief to reverse then Governor Jennifer Granholm’s decision to revoke her commutation of plaintiff’s nonparolable life sentence that had been imposed for his first-degree murder and armed robbery convictions.  The Governor had signed the commutation on December 22, 2010, after which it was signed by the Secretary of State and affixed with the Great Seal; however, four days later, the Governor decided to revoke the commutation order, and all copies of the commutation certificate were destroyed.  Plaintiff alleged that the commutation was final when it was signed, sealed, and delivered to the Department of Corrections, and argued that the Governor lacked the authority to revoke a completed commutation.  The court, Richard D. Ball, J., granted defendants’ motion for summary disposition, concluding that it lacked jurisdiction to review the governor’s exercise of discretion over commutation decisions.  Plaintiff appealed.  The Court of Appeals, O’CONNELL, P.J., and CAVANAGH and DONOFRIO, JJ., affirmed, holding that the Governor’s exercise of the commutation power presented a nonjusticiable political question.  299 Mich App 166 (2012).  The Supreme Court granted plaintiff’s application for leave to appeal. 494 Mich 876 (2013).

In an opinion by Justice CAVANAGH, joined by Chief Justice YOUNG and Justices MARKMAN, KELLY, AND VIVIANO, the Supreme Court held:

The interpretation and exercise of the Governor’s powers under Const 1963, art 5, § 14 were justiciable questions properly before this Court.  The Constitution did not give the Governor the power to revoke a validly granted commutation.  A commutation is complete when it is signed by the Governor and the Secretary of State and affixed with the Great Seal. Because the Governor signed plaintiff’s commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence.

June 3, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Empirical explorations of modern capital clemency

Michael Heise has recently posted on SSRN two intriguing pieces concerning the modern patterns of capital clemency. Here are links and abstracts:

The Death of Death Row Clemency and the Evolving Politics of Unequal Grace

While America’s appetite for capital punishment continues to wane over time, clemency for death row inmates is all but extinct.  Moreover, what little clemency activity that persists continues to distribute unevenly across gender, racial and ethnic groups, geography, governors’ political affiliation, and over time. Insofar as courts appear extremely reluctant to review — let alone interfere with — clemency activity, little, if any, formal legal recourse exists.  Results from this study of clemency activity on state death rows (1973-2010) suggest that potential problems arise, however, to the extent that our criminal justice system relies on clemency to function as coherent extrajudicial check.

The Geography of Mercy: An Empirical Analysis of Clemency for Death Row Inmates

Conventional wisdom notes persistent regional differences in the application of the death penalty, with southern states’ appetite for capital punishment exceeding that of non-southern states.  Scholars analyzing the distributions of death sentences and state executions find a geographic influence.  Less explored, however, is a possible regional difference in the distribution of executive clemency even though clemency is an integral component of a criminal justice system that includes capital punishment.  If geography influences the distribution of the death penalty, geography should also influence the distribution of clemency.  Data, however, reveal some surprises.  Using a recently-released data set of all state death row inmates from 1973 to 2010, this paper considers whether clemency is exercised in southern and non-southern states in systematically different ways.  No statistically significant differences exist between southern and non-southern states when it came to clemency, even though southern states were more prone to execute and less prone to disturb death sentences through reversal on appeal than northern states.  When it comes to the influence of geography in the death penalty context, the findings provide mixed support and convey a complicated picture.

June 3, 2014 in Clemency and Pardons, Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, June 02, 2014

Conservative Justices debate treaty powers, local crimes and constitutional connections

The sole criminal justice ruling from the US Supreme Court this morning comes in Bond v. US, No. 12-158 (S. Ct. June 2, 2014) (available here), and conservative con law thinkers are likely to enjoy the lengthy read much more than sentencing fans.  Writing for the Court, Chief Justice Roberts starts this way in Bond:

The horrors of chemical warfare were vividly captured by John Singer Sargent in his 1919 painting Gassed. The nearly life-sized work depicts two lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.

The painting reflects the devastation that Sargent witnessed in the aftermath of the Second Battle of Arras during World War I. That battle and others like it led to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings. Today that objective is reflected in the international Convention on Chemical Weapons, which has been ratified or acceded to by 190 countries. The United States, pursuant to the Federal Government’s constitutionally enumerated power to make treaties, ratified the treaty in 1997. To fulfill the United States’ obligations under the Convention, Congress enacted the Chemical Weapons Convention Implementation Act of 1998.  The Act makes it a federal crime for a person to use or possess any chemical weapon, and it punishes violators with severe penalties. It is a statute that, like the Convention it implements, deals with crimes of deadly seriousness.

The question presented by this case is whether the Implementation Act also reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach.  The Chemical Weapons Convention Implementation Act contains no such clear indication, and we accordingly conclude that it does not cover the unremarkable local offense at issue here.

Notably, all the Justices agree that the federal prosecution and conviction in Bond must be reversed, but Justices Scalia, Thomas and Alito write concurrences to explain why they view Bond's treatment as unconstititional not merely statutorily unauthorized. And while I suspect con law scholars will have a grand time debating the virtues and vices of the different perspectives of the different conservative Justices, I fear that criminal law practitioners are unlikely to find much in Bond to use in more traditional federal cases.

June 2, 2014 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

House votes to preclude funding for clemency efforts as well as for pot prosecutions

I was amazed and pleased upon learning that a majority of members of the US House of Representative voted for an appropriations measure that would preclude the Justice Department from using funds to prevent states from implementing their medical marijuana laws (basics here and here).  But I was also amazed and peturbed upon learning that a majority of members of the US House of Representative also voted for an appropriations measure that would preclude the Justice Department from using funds to have more DOJ attorneys screen clemency petitions in conjunction with efforts to bring old excessive sentences in line with current laws and norms. This MSNBC article, headlined "House Republicans vote to block Obama’s new pardon attorneys," explains:

The U.S. House voted Thursday to block the Obama administration’s plan to add staff to the Pardon Attorney’s office, a potential barrier to the Justice Department’s efforts to scale back some lengthy prison sentences handed down in the war on drugs. The measure, sponsored by Republican North Carolina Rep. George Holding, bans any funding for staff who would conduct the administration’s planned review of applications from inmates seeking early release.

The measure is attached to a new Justice Department funding bill that passed on a party-line vote of 219-189. A Justice Department official told msnbc that Attorney General Eric Holder considers the new funding restriction “absurd.”

The department in April launched a new effort to review more clemency applications and expand the criteria for releasing inmates, particularly those still imprisoned under harsh sentencing laws that have since been reformed. Holding said he pushed the funding ban because he believes Obama is intent on using his presidential pardon power “solely on behalf of drug offenders.”

Speaking on the House floor, Holding also accused the administration of bulking up the Pardon Attorney’s office as a “political ploy” in order to “bypass Congress” and drug laws that are still on the books.

House Democrats objected, saying the funding ban would hamper the research and expertise of the Pardon Office. “If there were a resignation in the office and if you needed to have a temporary detailee, it would be prohibited from this amendment,” Pennsylvania Democratic Rep. Chakah Fattah said. “The last thing we would want is the President using such extraordinary power without the benefit of proper staff and due diligence,” he added.

Virginia Republican Rep. Bob Goodlatte, the House Judiciary Committee chairman, said that while “no one denies the constitutional power of the president to grant clemency,” the Justice Department’s encouragement of “thousands” of clemency appeals is an improper use of the clemency power.  “Congress should not fund that office for that purpose,” Goodlatte said.

To date, President Obama has granted ten clemency petitions out of 11,218 clemency petitions received.

I am inclined to use the word asinine rather than absurd to describe this funding restriction and vote. Congress ought to pass a resolution if it is eager to provide advice or express concerns about how Prez Obama (or any other president for that matter) may be planning to use the constitutional clemency authority. But to prevent DOJ from having adequate resources to better screen the huge number of petitions coming from a huge number of federal prisoners serving now reformed sentences seems more likely to encourage misuse rather than better use of the clemency power.  Sigh.

June 2, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, June 01, 2014

"Death penalty in Kansas: Will the state ever execute another prisoner?"

The title of this post is the headline of this lengthy article in the Lawrence Journal World. And though focused on the modern story of capital administration in the Sunflower State, there are likely at least a dozen other states which still have the death penalty on the books and a number of prisoners on death row (ranging from California to Pennsylvania, from North Carolina to Washington) for which the same question could be reasonably asked given the lack of execution in these states for more than half a decade.  Here are excerpts abut the modern capital story in Kansas that is similar (though with distinct facets) to what happen in a number of states :  

Moments before he was hung to death, George York expressed contrition for his sins....

The state of Kansas had not forgiven York, convicting him of one of several murders he had confessed to as part of a cross-country killing spree with fellow Army deserter James Latham. So on June 22, 1965, York was led up the 13 steps of the gallows at the Kansas State Penitentiary in Lansing. A prison chaplain read from the 23rd Psalm as the noose was placed around York's neck. At 12:53 a.m., the trap door dropped. The 22-year-old was pronounced dead 19 minutes later.

York was the last person executed by the state of Kansas. In recent years, several states have banned capital punishment. It is on hiatus in some states because of problems obtaining the drugs used in lethal injections, which has led to botched executions, mostly recently in Oklahoma.  But in Kansas, the death penalty is in a sort of legal limbo: still on the books, just not being carried out.

There have been no executions in the 20 years since the death penalty was reinstated in Kansas, due, observers say, to an exhaustive appeals process, a cautious state Supreme Court dealing with a fairly new and restrictive law, and the state's relatively low murder rate. Nine men are currently on death row in Kansas.

Only two other states besides Kansas — Nebraska and California — have a lethal injection chamber that has never been used. The only death penalty state that has gone longer without an execution is New Hampshire, which last killed a prisoner in 1939 and has only one person on death row. Kansas doesn't even have lethal injection drugs in stock because a possible execution is so far in the future....

Earlier this year, the Kansas legislature debated a bill that proponents said would speed up the appeals process in capital cases.  The legislation didn't pass. One of its supporters, state Sen. Greg Smith, R-Olathe, was asked why there have been no executions in Kansas in recent years. "Four words: the Kansas Supreme Court," he said.  "It's not that we don't use the death penalty in Kansas.  It's that the Kansas Supreme Court refuses to apply the law and allow a lawful sentence to be carried out."

Smith, whose daughter was murdered in Missouri in 2007, refuses to name death row inmates, instead invoking the names of victims when discussing cases.  "What we tend to forget is the people who do this had zero mercy for the people they killed," he said. "The people who are murdered go through hell.  After they're murdered, we forget about the victim. People say, let's not be inhumane, but what about the people they killed?" He said the drawn-out appeals process puts families of victims "right back into that emotional mess they were in when they loved ones were killed."

The state's top prosecutor, Attorney General Derek Schmidt, also supported the changes, saying the Supreme Court should review only the sentencing rather than the whole case and that defendants' ability to file successive, unnecessary motions clogs up the appellate system. "Attorney General Schmidt has a long record of supporting Kansas’ narrowly tailored death penalty," said his spokesman, Clint Baes.  "In addition, our office this year supported a legislative proposal which would have held the courts accountable to their own procedural rules.  A lack of adherence to these rules by our appellate courts has led to the long delays in death penalty appeals."

The state Supreme Court not only declared Kansas' death penalty statute unconstitutional in 2004 (a decision later reversed by the U.S. Supreme Court), it has overturned the death sentences in all five of the modern capital cases it has issued opinions on....

Some legal experts say the Supreme Court takes so much time reviewing death penalty cases because the law in its current form has only existed for 20 years....

Jeffrey Jackson, a Lawrence attorney and law professor at Washburn University, said he believes that the death penalty statute has a deterrent effect.  The state's murder rate has declined since capital punishment was reinstated, from 170 in 1994 to 84 in 2012, though that mirrors a similar drop in homicides across the country.

He also noted that as the state Supreme Court continues to work through the issues surrounding Kansas' death penalty statute, the appeals process will likely quicken.  "Unless the Legislature repeals the death penalty, I think there will eventually be an execution," he said. (A recent bill to abolish capital punishment in Kansas would not have applied to the nine men already on death row). "The more cases you have, the better the judges get at figuring out how to do these things.  They're still going to take a lot of time, but it's not going to increase. It's almost assured that we will have an execution as long as the statute is in place."

That execution, if it comes, probably won't be happening in the near future. Even if the Kansas' high court affirms a death sentence, it will then have make its way through the federal appeals system.  "The death penalty is by far the most complex set of laws there could be in criminal law," said Ron Wurtz, the former chief of the state's Death Penalty Defense Unit, who doesn't see a Kansas inmate being put to death anytime soon. "It's not even close right now. I'd say it's probably 10 more years out, at the very least."

June 1, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, May 31, 2014

"Why Republicans are slowly embracing marijuana"

The title of this post is the headline of this recent Los Angeles Times article, which includes these excerpts:

Marijuana is a political conundrum for the GOP, traditionally the stridently anti-drug, law and order party. More than half the voters in the country now live in states where medical marijuana is legal, in many cases as a result of ballot measures. The most recent poll by the Pew Research Center found most Americans think pot should be legal, a major shift from just a decade ago when voters opposed legalization by a 2-to-1 margin.

Most GOP stalwarts, of course, continue to rail against liberalization of the laws. Rep. Andy Harris of Maryland, a physician, declared during floor debate that medical marijuana is a sham. Real medicine, he said, “is not two joints a day, not a brownie here, a biscuit there. That is not modern medicine.”

But in a sign of how the times are changing, he found himself challenged by a colleague from his own caucus who is also a doctor. Rep. Paul Broun (R-Ga.) spoke passionately in favor of the bill. “It has very valid medical uses under direction of a doctor,” he said. “It is actually less dangerous than some narcotics prescribed by doctors all over the country.” Georgia is among the many states experimenting with medical marijuana. A state program there allows its limited use to treat children with severe epileptic seizures.

The rise of the tea party, meanwhile, has given an unforeseen boost to the legalization movement. Some of its more prominent members see the marijuana component of the War on Drugs as an overreach by the federal government, and a violation of the rights of more than two dozen states that have legalized cannabis or specific components of it for medical use.

Pro-marijuana groups have lately taken to boosting the campaigns of such Republicans, even those running against Democrats. A notable case is in the Sacramento region, where the Marijuana Policy Project recently announced it was endorsing Igor Birman, a tea partier seeking to knock out Democrat Ami Berra in a swing congressional district.

Cross-posted at Marijuana Law, Policy and Reform

May 31, 2014 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 30, 2014

US House hearing on "Penalties" as part of Over-Criminalizaiton Task Force

Taking place as I write this post is a notable hearing (which I am watching live via this link) of the Over-Criminalizaiton Task Force of the Judiciary Committee on the topic of "Penalties." Here is the witness list, with links to their written statements: 

A quick scan of the submitted testimony linked above reveals that regular readers of this blog will not find all that much which is new from the witness. But the submitted statements still provide a very effective review of all the essential elements of the modern debate over federal mandatory minimum sentencing provisions.

UPDATE:  TheHouse hearing adjourned just before 11am, after most of the usual suspects had the opportunity to stake out their usual positions.  I doubt this hearing moved the needle in any significant way, though I still found notable and telling that the US House Representatives arguing against the modern drug war and sentencing status quo generally seemed much more passionate and animated than those eager to support the status quo.

May 30, 2014 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

A "true political game changer" as House votes to preclude feds from going after state-legal medical marijuana?!?!?

The question and/or statement in the title of this post is my reaction to Alex Kreit's reaction here at MLP&R to the notable vote late last night in the US House of Representatives concerning an amendment to an appropriation bill.  This MSNBC story provides the context and head-count:

It had all the markings of a measure that would no one notice: an obscure amendment to a low-profile bill, receiving a vote after midnight, the same week as a national holiday. It’s hardly a recipe for generating national headlines.

But the U.S. House of Representatives nevertheless did something overnight that Congress has never done. The House passed an amendment late Thursday night to restrict the Drug Enforcement Administration from targeting medical marijuana operations in states where it is legal.

The 219-189 decision came on a bipartisan appropriations amendment spearheaded by California Republican Rep. Dana Rohrabacher and California Democrat Sam Farr. The amendment still faces several procedural hurdles before it is ratified, but this is the first time such an amendment has succeeded in the House.

The roll call on the vote is here. Note that it passed largely with Democratic support – the vast majority of Dems voted for it; a clear majority of Republicans voted against it – but the measure was backed by a bipartisan group of co-sponsors.

At issue is a routine spending bill: providing federal funding for a variety of agencies, including the Justice Department, which occasionally enforces federal drug laws by raiding marijuana facilities in states where medical pot sales are legal.  The amendment intends to block federal law enforcement from doing so in the future.

In the process, as German Lopez reported, the House acted without precedent: “The bill is the first time in history that any chamber of Congress has acted to protect medical marijuana businesses and users.”  As Lopez’s report makes clear, the practical effect of the amendment means the House now believes that if states want to implement their own medical marijuana laws, they shouldn’t have to fear interference from the FBI.

“Congress is officially pulling out of the war on medical marijuana patients and providers. Federal tax dollars will no longer be wasted arresting seriously ill medical marijuana patients and those who provide to them,” Dan Riffle, director of federal policies at the Marijuana Policy Project, said in a statement. “This is a historic vote, and it’s yet another sign that our federal government is shifting toward a more sensible marijuana policy.”

Looking ahead, it’s not yet a done deal. The same spending bill has not yet been taken up by the Senate, and we don’t yet know how the upper chamber will feel about the DEA amendment. The measure would also need President Obama’s signature.

I share Dan Riffle's perspective that this is a historic vote, but I am not sure it really is a "game changer" as much a sign of the modern drug-war times. Whatever labels are used for the vote, though, it is certainly interesting and exciting for those eager to see a move away from the status quo with respect to federal pot prohibition and the broader federal drug war.

May 30, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 29, 2014

"Funding Favored Sons and Daughters: Nonprosecution Agreements and 'Extraordinary Restitution' in Environmental Criminal Cases"

The title of this post is the title of this recent article authored by Paul Larkin that a helpful reader altered me. Here is the abstract:

Over the past eight years, the federal government has entered into more than two hundred nonprosecution agreements with corporations in white-collar crime cases.  In such agreements the government promises to cease its investigation and forego any potential charges so long as the corporation agrees to certain terms.  And there’s the rub: given the economic realities of just being charged with a white-collar crime these days, corporations are more than willing to accept nonprosecution agreements.

Prosecutors are cognizant of this willingness, as well as of the fact that these agreements are practically insulated from judicial review.  This results in the prosecution possessing a seemingly unfettered discretion in choosing the terms of a nonprosecution agreement.  The breadth of this discretion is nowhere more apparent than in environmental criminal cases. Nonprosecution agreements in such cases have begun to require corporations to donate monetarily to a nonprofit of the government’s choosing.  Indeed, in 2012 British Petroleum agreed to pay more than $2.394 billion to nonprofit agencies.

This Article critiques this practice by highlighting the inconsistencies between nonprosecution agreements and plea bargaining — the latter are subject to judicial review while the former are not — and unearthing the differences between these payments and any common-law understanding of restitutionary principles.  The Article then suggests that the practical result of these nonprosecution agreements is that prosecutors are diverting money that ought to be paid to the Treasury to government-chosen nonprofit agencies, a power constitutionally granted to legislative actors.  Finally, the Article concludes by suggesting a modest reform: judicial review by a United States magistrate judge, so as not to run into any Article III concerns, to ensure that prosecutors do not take advantage of the nonprosecution agreement process.

May 29, 2014 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Terrific Posnerian disquisition on supervised release challenges and "best practices"

The always-interesting Judge Richard Posner has another one of his always-interesting discussions of federal sentencing policies and practices today on the Seventh Circuit's opinion in US v. Siegel, No. 13-1633 (7th Cir. May 29, 2014) (available here). The topic du jour is federal supervised release, and the full Siegel opinion is a must-read for all who work within the federal criminal justice system. And this paragraph from the start of the opinion and then a later passage highlight why:

We have consolidated these two criminal appeals because (with an exception discussed at the end of the opinion) both challenge only conditions of supervised release, imposed by the district court, and because the challenges raise closely related issues concerning such conditions. The issues ramify far beyond these two cases, however, which exemplify common but largely unresolved problems in the imposition of such conditions as a part of federal criminal sentencing....

In summary, these cases must be remanded for reconsideration of the conditions of supervised release imposed on these defendants that we have raised questions about. And for the future we recommend the following “best practices” to sentencing judges asked to impose (or minded on their own to impose) conditions of supervised release:

1. Require the probation service to communicate its recommendations for conditions of supervised release to defense counsel at least two weeks before the sentencing hearing.

2. Make an independent judgment (as required in fact by 18 U.S.C. § 3553(a)) of the appropriateness of the recommended conditions—independent, that is, of agreement between prosecutor and defense counsel (and defendant) on the conditions, or of the failure of defense counsel to object to the conditions recommended by the probation service.

3. Determine appropriateness with reference to the particular conduct, character, etc., of the defendant, rather than on the basis of loose generalizations about the defendant’s crime and criminal history, and where possible with reference also to the relevant criminological literature.

4. Make sure that each condition imposed is simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.

5. Require that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release. That would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the defendant’s experiences in prison.

May 29, 2014 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (8) | TrackBack

AG Holder urges fellow prosecutors to back his sentencing reform advocacy

This new NPR piece reports that "Attorney General Eric Holder took his case for overhauling the criminal justice system to an unlikely location on Wednesday — a closed-door conference of prosecutors, who were meeting at their national training center in Columbia, South Carolina." Here is more:

According to a person familiar with Holder's unpublicized remarks, Holder urged an audience of criminal division chiefs from U.S. Attorney's offices to support Smart on Crime initiatives that would reduce some drug sentences and to open up the clemency process to hundreds of inmates with clean records in prison.

Earlier this year, the Senate Judiciary Committee approved a bill that would cut some mandatory minimum penalties for non-violent drug offenders.  But in recent weeks at least three prominent groups have attacked the legislation, including nearly 30 former Justice Department officials who served under Republican administrations; longtime Sens. John Cornyn, R-TX, Charles Grassley, R-IA, and Jeff Sessions, R-AL; and even Holder's own DEA administrator.

The attorney general addressed those concerns by pointing out that the bill, known as the Smarter Sentencing Act, would leave in place tough mandatory minimum sentences for most drug traffickers, with add-ons for people who possess weapons, are repeat offenders, or those who are considered leaders of an ongoing criminal racket.

"These changes represent anything but a softening of our stance against crime and those who perpetrate it, or a relaxing of our unwavering commitment to combat the drug-fueled violence that plagues far too many communities," Holder said, according to a law enforcement source in the audience.  "On the contrary: in all our activities, we remain committed to the robust enforcement of federal anti-drug laws, and to focusing federal resources on the most significant threats to our communities," he said, according to the source.

May 29, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 28, 2014

"Judge orders temporary moratorium on Ohio executions"

The title of this post is the headline of this notable capital news emerging in my local legal arena.  Here are the basics:

A federal judge has ordered a temporary moratorium on executions in Ohio while legal issues related to new lethal injection protocol are worked out. The order issued yesterday by U.S. District Judge Gregory L. Frost stops the scheduled July 2 execution of Ronald Phillips of Summit County and the Aug. 6 execution of William Montgomery of Lucas County. Two other executions scheduled later in the year are not affected for the time being, but Frost left his order open-ended.

Frost said an execution can be scheduled no earlier than Aug. 15. The delays are repercussions from the troubled execution of Dennis McGuire on Jan. 16. Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville.

As a result, the Ohio Department of Rehabilitation and Correction announced April 28 that it would use the same drugs, but in higher doses in future executions.... Frost ordered the attorneys representing condemned inmates and the state to “work together to coordinate efforts so that the court can set necessary deadlines following expiration of the stay.”

May 28, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Paul Ryan joins chorus of GOP young guns supporting sentencing reform and Smarter Sentencing Act

Tucked within this interesting Daily Beast discussion of (former VP candidate) Representative Paul Ryan's war on poverty tour is the revelation that Ryan is now the latest prominent GOP official to support reform of federal mandatory minimum sentencing laws. As the article recounts:

I asked the representative from Janesville, Wisconsin, if he could reflect on a previously held ideological view that had changed over the course of his learning tour.

Without hesitation, Ryan delved into the need to reform federal sentencing guidelines. “I think our sentencing guidelines need to be revisited with an eye towards what actually works to make sure a person can hit their upward potential,” Ryan said. “Is it better to send someone to a successfully proven drug rehab program so they can knock the habit and get back on their feet again, or is it [better to] put them away for 16 years?”

Reflecting on past congressional efforts to limit discretion on the part of federal judges in imposing strict sentences—a reflection that will be sure to raise eyebrows in the House Republican Cloakroom—Ryan said: “I think we had a trend in America for a long time on mandatory minimums where we took away discretion from judges. I think there’s an appreciation that that approach has some collateral damage—that that approach is missing in many ways…I think there is a new appreciation that we need to give judges more discretion in these areas.”

Specifically, Ryan hailed the bipartisan work of Sens. Mike Lee (R-UT) and Dick Durbin (D-IL) to dramatically overhaul the federal sentencing guideline structure now in place. Dubbed the “Smarter Sentencing Act,” the legislation, which passed the Senate Judiciary Committee this year, would cut mandatory minimum sentences in half for certain drug offenses. It also would reduce crack cocaine penalties retroactive to 2010 and expand the discretion of federal judges to sentence defendants in certain cases to less time in jail than mandatory minimum guidelines permit.

Some older and recent posts on the "new politics" of sentencing reform:

May 28, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

"Candidates for Maryland governor seek votes by helping ex-convicts"

The title of this post is the headline of this recent Baltimore Sun article which serves as more proof that the modern politics of crime and punishment have changed. Not long ago, candidates for governor would seek votes by talking up who could hurt lawbreakers more. Now the theme is helpping, and here is how this article starts:

When Democrat Douglas F. Gansler stopped by a Baltimore sports bar recently, the ex-convict behind the bar struck up a conversation. It's a tough road, the worker told Gansler, to get any job.

"I'm trying to turn my life around," he said. "I've got a newborn son." Gansler nodded emphatically, and dove into the wonky details of a seemingly unconventional plank in a former prosecutor's platform for governor. Gansler, like all the Democrats vying for the state's top political job, has a detailed plan to ensure ex-offenders do not go back to prison. The issue resonates in heavily Democratic Baltimore.

As public perception shifts about whether the "war on drugs" has succeeded, and as prison populations rise to unprecedented and costly levels, political experts say many candidates across the country have traded a tough-on-crime attitude for a more nurturing approach.

The three Democrats in Maryland's primary race for governor emphasize proposals for programs such as job training to help inmates successfully rejoin their communities. At forums, in policy papers, to community groups and on the campaign trail, each is pushing ideas to reduce recidivism.

"Compared to the candidates four years ago, it's a very different tone," said Jason Perkins-Cohen, executive director at Job Opportunities Task Force, which tries to help ex-offenders get work. "Candidates are sensing the mood has changed."

Nationwide, re-entry has become a bipartisan talking point, though Maryland's Republican candidates for governor have not made helping former inmates a top issue leading up to the June 24 primary.

May 28, 2014 in Elections and sentencing issues in political debates, Reentry and community supervision, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 27, 2014

"Intellectual disability is a condition, not a number. See DSM–5, at 37."

The title of this post is the sentence and cite that perhaps best summarized the work of the majority of the Supreme Court this morning in Hall v. Florida (opinion here, basics here).  In Hall, the Court rejects as violative of the Eighth Amendment Florida's use of a bright-line IQ test cut-off set at 70 for defining who is eligible for execution (while dodging whether a cut off set at 75 would be okay) based principally on the medical community's consensus view that IQ tests are just one factor in assessing intellectual disability and are necessarily imprecise.  Here are just a few excerpts from the majority opinion in Hall that highlight these themes:

That this Court, state courts, and state legislatures consult and are informed by the work of medical experts in determining intellectual disability is unsurprising.  Those professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities.  Society relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue....

Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence.  It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise....

It is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework.  Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession....

This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowl­edged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disa­bility, including testimony regarding adaptive deficits.

Not surprisingly, the dissent in Hall recognizes and criticizes the majority's heavy reliance on the medical community's approach to determining intellectual disability.  Here is a snippet of this criticism from the dissent:

Under our modern Eighth Amendment cases, what counts are our society’s standards — which is to say, the standards of the American people — not the standards of professional associations, which at best represent the views of a small professional elite....

The Court’s reliance on the views of professional associ­ations will also lead to serious practical problems.

May 27, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity

I just received a notice from the US Sentencing Commission which highlights that the USSC has some new research that can and should help inform the on-going discussion of whether and how the new reduced drug guidelines ought to be made retroactive. Here is the text of this notice I got via e-mail, which includes links to two important new research documents:

As previously noted, the Commission is seeking public comment on the issue of whether to apply its recent amendment to the drug quantity table retroactively.  The Commission will receive public comment on this issue through July 7, 2014.  Public comment can be emailed to  public_comment@ussc.gov.  To facilitate public comment on this issue, the Commission is making available the following materials:
 
In April, Commissioners directed staff to analyze the impact of retroactivity should the Commission vote to authorize retroactive application of the 2014 drug guidelines amendment.
 
The Commission also released an updated recidivism analysis of crack cocaine offenders who were released early after implementation of a 2007 guidelines amendment which retroactively reduced by two levels the base offense levels assigned by the Drug Quantity Table for crack cocaine.  In this five-year study, these offenders were compared with similarly situated offenders who served their original sentences.

May 27, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Fascinating research on federal mortgage fraud prosecutions and sentencing in Western PA

20140525mortgage-fraud-thumbI am pleased and excited to have learned over the long weekend that the Pittsburgh Post-Gazette and the Duquesne University School of Law collaborated on an innovative Fact Investigations class, led by associate professor and Criminal Justice Program director Wesley Oliver, to study the modern work of Western Pennsylvania's federal prosecutors in response to modern mortage fraus.  As explained in this first article of a series about this work, this group "identified 144 prosecutions alleging mortgage-related crimes in the Pittsburgh area ... [and then] analyzed 100 prosecutions in which sentence had been pronounced and for which the federal sentencing guidelines could be discerned." Before getting into the findings, I want to heap praise on everyone involved in this project because it shows what valuable work can be done when law schools and traditional media team up to examine intricate and dynamic issues concerning the federal criminal justice system.

Here, from the start of the first article in the series, are the basic findings of this terrific project:

In 2008, as the housing market dragged the world economy down, orders came from Washington, D.C., to federal prosecutors nationwide: Bust the people whose lies contributed to the mess.

Six years later, the effort by Pittsburgh's federal prosecutors to punish fraudulent mortgage brokers, appraisers, closing agents, property flippers and bank employees can claim 144 people charged, more than 100 sentenced and no acquittals.

That undefeated record, though, came at a price: Some of the worst offenders got extraordinary deals in return for their testimony against others.

A review by the Pittsburgh Post-Gazette and Duquesne University School of Law students of 100 completed cases showed that the sentences of mortgage-related criminals in the Pittsburgh area were driven more by their degree of cooperation with prosecutors than by the number of people they scammed, the dollars they reaped or the damage they did to the financial system.  Some of the most prolific offenders used their central places in the fraud conspiracy to secure light sentences.

• Leniency for cooperation was doled out liberally.  At least 30 of the 100 defendants were the beneficiaries of prosecutorial motions to reward "substantial assistance" to the investigation.  That cooperation rate is nearly double that seen in fraud cases nationwide, suggesting that prosecutors here rewarded more defendants than normal.

• Most of the mortgage criminals who assisted prosecutors got no prison time, and the average amount of incarceration for those 30 defendants was a little more than three months.  By contrast, defendants who pleaded guilty but didn't provide substantial assistance to prosecutors, got average sentences of three years in prison.  Those few who went to trial faced an average of 6½ years behind bars.

•  Several of the figures most central to the region's mortgage fraud problem cooperated with prosecutors, and got non-prison sentences.  For instance, Kenneth C. Cowden, formerly of McKees Rocks and now of Florida, performed unlicensed appraisals that exaggerated real estate values in the region to the tune of hundreds of millions of dollars. He cooperated and got nine months in a halfway house.  Jay Berger of Fox Chapel, who recruited Cowden and lived lavishly from fraudulent mortgages, was sentenced in 2012 to 15 months in prison, but died this month at age 49 without serving time.

Here are links to all the article in the series:

Regular readers will not be at all surprised to hear me say that I view this terrific bit of investigative journalism as further proof that those who are really concerned about suspect disparities in federal sentencing ought to be much more focused on the application of (hidden and unreviewable) prosecutorial sentencing discretion than about the exercise of (open and reviewable) judicial sentencing discretion.

May 27, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Big criminal justice decision day for SCOTUS, including 8th Amendment reversal of Florida's Aktins approach

Clearly the Justices decided to celebrate the Memorial Day week by reminding everyone that the Bill of Rights has a lot of provisions concerning the administration of our criminal justice systems.  Returning from the long weekend, the Supreme Court handed down five opinions this morning (four in argued cases, one per curiam), and all but one of the rulings has a criminal justice element.  The big one for sentencing fans is the 5-4 Eighth Amendment ruling in Hall v. Florida, No. 12–10882 (S. Ct. May 27, 2014) (available here), which gets started this way: 

This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Atkins v. Virginia, 536 U. S. 304, 321 (2002).  Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is fore­ closed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.

The other criminal justice rulings in argued cases today concern police use of force and immunity, and the per curiam concerns when jeopardy attaches for the application of the Double Jeopardy clause. How Appealing has its always terrific review of all the essentials (with links) assembled here, and SCOTUSblog is sure to have a lot on all this action in coming posts.

Once I have a chance to read the Hall decision in full, I am sure I will have one or more substantive posts about the decision later today.

May 27, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 26, 2014

California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges

La-me-g-mendocino-potwebThe Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California.  The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts: 

When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.

With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."

That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.

The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")

The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."

The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.

Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.

Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.

Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."

A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.

Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....

Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.

He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.

He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.

Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)

Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...

Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program.  The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....

Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said.  He has two.  But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.

Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined.  So "they should please leave us alone and let local enforcement tackle our own marijuana problems."

Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.

I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.

Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.

Cross-posted at Marijuana Law, Policy and Reform

May 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Is public shaming fair punishment?"

The title of this post is the headline of this recent Los Angeles Times commentary by Patt Morrison on an alternative punishment topic I always find interesting. Here are excerpts:

You play the judge: How would you sentence a man who spent 15 years picking on his neighbor and her handicapped children? A Cleveland judge sentenced just such a man, Edmond Aviv, to jail, community service, anger management and mental health counseling — and to spend five hours alongside a busy street on a Sunday in April with a great big sign branding him an intolerant bully.

The 8th Amendment bans cruel and unusual punishment. Is this either one? Or can justice be fairly meted out in something other than years and months behind bars?

In 2012, a different Cleveland judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: "Only an idiot would drive on the sidewalk to avoid a school bus." The woman chose to hold the sign.

Puritan punishments like locking someone's head and hands in the stocks seem like retribution, not justice. In "The Scarlet Letter," Hester Prynne, was an adulterer, not a thief. Puritans believed in shame as a behavior corrector. But Prynne flaunted and even co-opted the "A" she was condemned to wear.

Should shame be a component of punishment? Does taking someone down a peg set a miscreant straight, any more than locking him up? And should it be at a judge's discretion?...

Judges have sentenced a La Habra slumlord to live in his own run-down building under house arrest for two months, and made an Ohio woman who abandoned 33 kittens spend a night alone in the woods. In a case that made the legal textbooks and withstood appeal in 2005, a San Francisco mail thief was ordered to stand on the post office steps with a sign that read: "I stole mail and this is my punishment."

It's hard to track the deterrent effect of such creative punishments because they happen so rarely. And judges have so much power and discretion that creative sentencing could mean wildly and unfairly different punishments for the same crime between one courtroom and the next — one reason that sentencing guidelines and laws exist in the first place.

Daniel Markel, the D'Alemberte professor of law at Florida State University and an expert on sentencing, points out that if these punishments didn't have some efficacy, "there probably wouldn't be much resistance" from miscreants, but "in fact defendants typically don't want to be publicly shamed because they realize there is something publicly humiliating about being exposed in the streets."...

The element of choice that comes up in some kinds of creative sentencing might also give us pause. In California and elsewhere, convicted sex offenders have requested castration — chemical and actual — to get out of prison. Civil libertarians object on "cruel and unusual" constitutional grounds, because it amounts to no choice, and because it gets dangerously close to the medieval notion of cutting off a thief's hands. Markel adds another objection to asking the guilty to pick their poison: "We punish to communicate censure and condemnation. It's for a democracy to make those decisions. We ought not empower defendants to be deciding their punishments."

Edmond Aviv apparently wasn't given a choice. Will public humiliation change his behavior? He had been convicted of harassment before, so it's hard to fault the judge for trying something different. And even though we don't live in Hester Prynne's world anymore, I'll cautiously side with the slice of democracy that told a Cleveland.com reporter they approved the sentence. After all, it "communicated censure and condemnation." In this case, it seems, a bad guy got his just deserts. 

A few recent and lots of older posts on shaming sentences:

May 26, 2014 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, May 24, 2014

"Sentencing Debate Reveals Divide Among Republicans"

The title of this post is the headline of a recent article by John Gramlich via CQ News (which, I fear, is trapped behind a pay-wall). Here are excerpts:

A Senate proposal to cut mandatory minimum drug sentences in half has exposed a rift between senior, establishment Republicans who stress their law-and-order credentials and junior, more libertarian-minded members of the party who want to shrink the federal role in incarceration.

Sponsored by Sens. Richard J. Durbin, D-Ill., and Mike Lee, R-Utah, the bill (S 1410) is seen as a candidate for floor action following the Memorial Day recess after being approved by the Judiciary Committee, 13-5, in January. But the measure’s prospects are uncertain, with differences among Republicans becoming increasingly apparent. The bill’s six GOP cosponsors include five first-term senators: Lee, Jeff Flake of Arizona, Rand Paul of Kentucky, Ted Cruz of Texas and Ron Johnson of Wisconsin.

Several of those lawmakers have strong tea party support and view the proposal through a libertarian lens. They cast it as a way to cut taxpayer spending on prisons while preserving individual liberties by doing away with tough penalties for low-level, nonviolent drug offenders.

By contrast, the bill’s chief Republican opponents are a trio of establishment Republicans who have long pointed to their “tough on crime” bona fides. They are Majority Whip John Cornyn of Texas, a former state attorney general and judge; Jeff Sessions of Alabama, a former federal prosecutor, and Charles E. Grassley of Iowa, the Judiciary Committee’s ranking member and arguably the Senate’s staunchest defender of mandatory minimum penalties....

Beyond the philosophical disagreement, there also appears to be a generational split among Republicans when it comes to sentencing, said William G. Otis, a law professor at Georgetown University and former special counsel to President George H.W. Bush. The average age of the Republicans who voted for the bill in committee earlier this year was 45, as Slate magazine noted in February. The average age of the Republicans who opposed it was 69.

Otis, who opposes the bill, said older Republican senators may be basing their views of the legislation on their personal recollections of the national crime wave that led to tougher criminal sentencing laws.  “For those of us that age, we remember what it was like, because we grew up in the ‘60s and ‘70s and the experience of the crime wave of those two decades is vivid,” Otis said.  “My generation remembers that.  Rand Paul’s generation, Jeff Flake’s generation and Mike Lee’s generation does not.”...

Paul, who is perhaps the Senate’s most prominent Republican supporter of shortening criminal sentences, so far has been unable to persuade Minority Leader Mitch McConnell, R-Ky., to back the plan....

Laurie A. Rhodebeck, a political science professor at the University of Louisville, said the two senators likely have different constituencies in mind. She noted that Paul may have higher political ambitions and has sought to broaden the appeal of the Republican Party by reaching out to minorities, who often face long criminal sentences for drug crimes. “The way I see the big picture is that Rand Paul seems to be speaking to a national audience right now, rather than a Kentucky audience,” Rhodebeck said. “I assume that’s in keeping with his possible interest in running for the GOP nomination in 2016.”...

To be sure, Democrats may not be united within their own ranks on the bill. Sen. Dianne Feinstein, D-Calif., and Charles E. Schumer, D-N.Y., both have expressed reservations about it, even though they agreed to advance the measure to the full Senate. GOP support for the proposal, meanwhile, is not limited only to first-term senators who are identified with the tea party. Sen. Johnny Isakson, R-Ga., is the sixth GOP cosponsor of the bill and has served in the Senate since 2005.

But the Republican split could be a consequential factor in whether the proposal reaches the floor in an election year in which control of the Senate is at stake. Majority Leader Harry Reid, D-Nev., has indicated he would like to bring up the proposal, but Durbin has suggested that there may be complications in rounding up the votes for passage. A divide among outside conservative advocates may be among the complications.

At a forum this week of conservatives in favor of overhauling the nation’s criminal justice policies, prominent figures including former House Speaker Newt Gingrich, R-Ga., and former National Rifle Association President David Keene made the case for a less punitive approach....

But a group of prominent former federal prosecutors, including two former Republican attorneys general, wrote to Reid and McConnell earlier this month to urge them not to bring the sentencing bill to the floor. Like Grassley and the other Senate Republicans, they warned it would threaten public safety.

I would put a slightly different spin than Bill Otis on the notable fact that the "average age of the Republicans who voted for the [SSA] in committee earlier this year was 45 [while the] average age of the Republicans who opposed it was 69." I would say that supporters of the bill understand that new political and legal realities may call for changing laws passed decades ago, whereas opponents of the bill see little need to update these sentencing laws for modern times.

Some older and recent posts on the "new politics" of sentencing reform:

May 24, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, May 23, 2014

Tennessee adopts electric chair as back-up execution method

Tenn executionAs reported in this AP article, "Tennessee has decided to bring back the electric chair." Here are the details:

Republican Gov. Bill Haslam on Thursday signed a bill into law allowing the state to electrocute death row inmates in the event the state is unable to obtain drugs used for lethal injections.  Tennessee lawmakers overwhelmingly passed the electric chair legislation in April, with the Senate voting 23-3 and the House 68-13 in favor of the bill.

Richard Dieter, the executive director of the Death Penalty Information Center, said Tennessee is the first state to enact a law to reintroduce the electric chair without giving prisoners an option.  "There are states that allow inmates to choose, but it is a very different matter for a state to impose a method like electrocution," he said. "No other state has gone so far."

Dieter said he expects legal challenges to arise if the state decides to go through with an electrocution, both in terms of whether the state could prove that lethal injection drugs were not obtainable and on the grounds of constitutional protections against cruel and unusual punishment....

Republican state Sen. Ken Yager, a main sponsor of the electric chair measure, said in a recent interview that he introduced the bill because of "a real concern that we could find ourselves in a position that if the chemicals were unavailable to us that we would not be able to carry out the sentence."

A Vanderbilt University poll released this week found that 56 percent of registered voters in Tennessee support the use of the electric chair, while 37 percent are against it. Previous Tennessee law gave inmates who committed crimes before 1999 the choice of whether they wanted to die by electric chair or lethal injection.  The last inmate to be electrocuted was Daryl Holton, a Gulf War veteran who killed his three sons and a stepdaughter with a high-powered rifle in Shelbyville garage in 1997.  He requested the electric chair in 2007.

A provision to apply the change to prisoners already sentenced to death has also raised a debate among legal experts.  Nashville criminal defense attorney David Raybin, who helped draft Tennessee's death penalty law nearly 40 years ago, has said lawmakers may change the method of execution but they cannot make that change retroactive.  To do so would be unconstitutional, he said.

Supporters of the bill requested a legal opinion from state Attorney General Bob Cooper, who said the law would pass constitutional muster, but there was no guarantee it would not be challenged in court....  The Supreme Court has never declared a method of execution unconstitutional on the grounds that it is cruel and unusual.  It upheld the firing squad in 1879, the electric chair in 1890 and lethal injection in 2008.

May 23, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, May 22, 2014

Newt Gingrich and Van Jones say "Prison system is failing America"

Not only has CNN brought together a 2012 Republican presidential candidate and a former advisory to President Barack Obama as co-hosts of "Crossfire," but it now has published this interesting joint commentary under the headline "Prison system is failing America."  Here are excerpts from an interesting opinion piece that goes a bit beyond just the usual standard points about the various problems with modern mass incarceration:

Thirty-eight U.S. states are home to fewer people than live under the corrections system in this country. There are about as many people behind bars as live in Chicago. That's one in every 108 Americans. One in 35 are under some form of correctional supervision.

Among African Americans, the numbers are even more horrifying. According to the NAACP, one in three black males born in the United States today is likely to spend time in prison at some point in his life. That's compared with one in six Hispanic males or one in 25 white males.

It would be hard to overstate the scale of this tragedy. For a nation that loves freedom and cherishes our rights to life, liberty and the pursuit of happiness, the situation should be intolerable. It is destroying lives and communities.

Our corrections system is not correcting. Within three years of being released from prison, nearly half of prisoners are convicted of another crime with one out of every four ending up back in prison.

When a typical bureaucracy does its job this badly, it wastes money, time and paper. The corrections bureaucracy, in failing to correct the large majority of inmates in its charge, not only wastes money but also wastes lives, families and entire cities.

The current system is broken beyond repair. It's a human, social and financial disaster. We need a radical strategy of replacement of these huge bureaucracies that lack any meaningful oversight.... We need to rethink prisons, parole and probation for the 21st century.

At a time when high-quality education is increasingly digital and in many cases free, shouldn't we provide opportunities for prisoners to learn skills that will enable them to support themselves as upstanding citizens when they are released?

We know that inmates who earn a GED while incarcerated are substantially less likely to return to prison. There are readily available online tools that our prisons could use extensively for a minimal cost to increase the number of inmates receiving valuable education and skills training.

Khan Academy has replicated virtually the entire K-12 curriculum online for free. Udacity and other online education sites offer introductions to software programming for free. Our prisons should be using tools such as these extensively. They offer the opportunity to interrupt the cycle of poverty, a failing education system, crime and incarceration....

Technology should revolutionize more than just the prisons' rehabilitation programs. It should completely transform the corrections and criminal justice systems.... [T]echnology should enable much more effective probation and community supervision, especially new options that could allow nonviolent offenders to remain with their families living productive lives under an appropriate level of restriction.

Almost any activity to which we might sentence low-level offenders --apprenticeship programs, school, literacy or computer science boot camps, community service -- would be a better use of taxpayer dollars than sticking them idle in prison with hardened criminals. Unfortunately, the current corrections bureaucracy has embraced none of this innovation -- in part because it is captive to the prison guards' unions or the private prison lobby, and in part because it lacks any incentives or sufficient competition based on the right metrics....

Years ago, Van proposed that states give wardens a financial incentive to cut the rates of recidivism for inmates leaving their prisons. More than 65% of inmates in California return to prison within three years of their release, where they will again cost taxpayers an average of $47,000 each year.

Surely it is worth giving wardens a substantial portion of the savings for every inmate that leaves their prison and does not re-offend. Such incentives would spark dramatically more innovation and investment in rehabilitation, job training and job placement programs for prisoners. That would be a revolutionary change from prison administrators' current incentives, which are often to keep as many people in custody as possible.

Finally, we need real market competition that rewards success at every step of the process -- in probation and parole offices as well as prisons. That doesn't just mean privatizing prisons or rewarding probation services with the same failed metrics. We need competition of methods and ideas based on the right criteria: When we send prisoners home, do they have the skills to reintegrate in their communities as working, law-abiding citizens? Or do they end up coming back?...

We should start by opening our prisons and probation offices to innovation to save money, achieve better outcomes for individuals and ensure better safety for us all.

May 22, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, May 21, 2014

Fascinating exploration of modern data on modern mass incarceration

7 Trends in State Incarceration RatesIf you like data and like thinking hard about what to think about data about modern mass incarceration (and who doesn't), then you will be sure to like this interesting new posting authored by Andrew Cohen and Oliver Roeder at the Brennan Center for Justice headlined "Way Too Early to Declare Victory in War against Mass Incarceration." Here are excerpts (with some links retained) from an interesting and important bit of number crunching:  

At The Week Monday, Ryan Cooper summarized some dramatic statistical work about mass incarceration undertaken by Keith Humphreys, the Stanford University professor and former Obama administration senior advisor for drug policy. The headline of the piece, “The plummeting U.S. prison admission rate, in one stunning chart,” was accompanied by Cooper’s pronouncement that “whatever the reason” for the drop it “is certainly great news.” Some of the same optimism was expressed over the weekend, in The New York Times Book Review section, by David Cole, the esteemed Georgetown law professor who has written so eloquently recently about many of the greatest injustices in American law. Reviewing Columbia University professor Robert Ferguson’s excellent book, “Inferno,” Cole proclaimed that “we may be on our way out of the inferno” and that “it is just possible that we have reached a tipping point” in the fight against mass incarceration.

Would that it were so. It is far too early, as a matter of law, of policy, and of fact, to be talking about a “plummeting” prison rate in the United States or to be declaring that the end is in sight in the war to change the nation’s disastrous incarceration policies.  There is still far too much to do, far too many onerous laws and policies to change, too many hearts and minds to reform, too many families that would have to be reunited, before anyone could say that any sort of “tipping point” has been spotted, let alone reached.  So, to respond to Humphreys’ work, we asked Oliver Roeder, a resident economist at the Brennan Center for Justice, to crunch the numbers with a little bit more context and perspective. What follows below ought to shatter the myth that America has turned a corner on mass incarceration. The truth is that many states continue to experience more incarceration than before, the drop in national incarceration rates is far more modest than Humphreys suggests, and the trend toward reform could easily stop or turn back around on itself....

[T]he incarceration rate is decreasing, but no, not by much. It’s down 5.5 percent since its 2007 peak. Since 2001, it’s up 1.6 percent. An unscientific word for this trend would be “flat.”

As for individual states’ incarceration rates, experiences over the past decade have varied greatly.... California, New Jersey, and New York have dipped over 20 percent from their 2001 levels, while West Virginia, Minnesota, and Kentucky have seen over 30 percent increases.

Incarceration is a state-specific issue in other senses as well. Clearly the trends can vary dramatically, but so can the rates themselves. In 2012, Louisiana’s incarceration rate was 873, while Maine’s was 159....

So what’s the story? Well one thing it isn’t is crime. There is a body of evidence that indicates that crime doesn’t really affect incarceration. Incarceration, rather, is a policy choice, largely independent of the actual level of crime in the world. (The incarceration rate is not a result of one single policy choice, of course, but rather is a function of many policy choices which compose essentially our willingness or propensity to incarcerate.) Admissions and thus incarceration were increasing because of increased willingness to incarcerate, or reliance on incarceration. I don’t have a good sense as to why admissions and incarceration have been dipping lately, but it does seem to be driven by a minority of (typically large) states.

May 21, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"[A]nybody who’s a limited-government conservative can’t ignore the decades-long record of all of this money wasted and how ineffectual [the drug war has] been"

MalkinThe quote that makes up the title of this post is one from this interesting and very lengthy recent profile of Michele Malkin from the Denver Post. The piece is headlined "Michelle Malkin: Conservative hero and marijuana advocate," and here are some excerpts:

Michelle Malkin is one of the most revered conservative voices in America, and yet the author, columnist and commentator also actively supports medical and recreational marijuana.

“The war on drugs has been a failure. Prohibition was also a failure,” Malkin said recently, drinking coffee at a diner near her Colorado Springs home. “And pointing out that mainstream hospitals are administering these far more pernicious narcotics to terminally ill patients undercuts this whole idea that marijuana is this dangerous gateway.”

Surprised to hear such progressive talk coming from a conservative? Join the club. If you’re not surprised you’ve likely been reading Malkin’s missives for years. The pro-marijuana conservative is a growing segment in the U.S. political spectrum, something we’ll see more of in the November elections. Malkin’s intensely personal story — dating from her time at the Seattle Times in the ‘90s to her mother-in-law’s current struggle with metastatic melanoma — is a potent example of why these two strange bedfellows are becoming increasingly familiar....

But Malkin didn’t always feel that way.  When she left the LA Daily News for The Seattle Times in the mid-90s, she was as anti-marijuana as most Republicans were at that time. But after a chance debate with the late Seattle medical marijuana advocate Ralph Seeley, who died in 1998 of a rare bone cancer after suing the state to allow marijuana to be prescribed medically, she changed her mind on the issue.  Seeley’s arguments were legitimate, Malkin said, and less than a year after his death Washington voters approved medical marijuana.

“People always ask me, ‘When have you ever changed your mind?’ I tell them, ‘Ralph Seeley changed my mind’,” said Malkin.... “I was on a local public TV debate, and at the time I was a fairly orthodox law-and-order, pro-war on drugs conservative columnist. I would accept at face value anything Bill Bennett had claimed about the war of drugs.”

“Of course it’s been an abysmal trillion-dollar failure, and anybody who’s a limited-government conservative can’t ignore the decades-long record of all of this money wasted and how ineffectual it’s been. But going back to the debate with Ralph Seeley: We were on the opposite side of the debate, him in his wheelchair and he had chordoma, an awful degenerative cancer in the spine. He was paralyzed with a trach. He was so articulate, and you couldn’t argue with his facts.”

Just like that Malkin — who jokingly refers to herself on occasion as a “right-wing nut-job” — switched over to the pro-marijuana side of the debate. And nearly two decades after her initial change of heart readers came across her recent “My trip to the pot shop” column on March 25, 2014....

There’s a philosophical and literary hook in Colorado’s mountainous landscape for Malkin, too.  “For Libertarians, of course, Colorado is a special place because it’s Galt’s Gulch, in the Ayn Rand novels,” said Malkin. “The appeal is it’s the last, best sanctuary of the bulwark against the meddling state. And it’s real — it’s not just a fictional sanctuary. It’s real for many people, and those stories of those families moving here from New Jersey underscores that, and it resonates with me because that’s how we feel about Colorado.”...

Marisol Therapeutics is a recreational pot shop in Pueblo West, just 47 miles from Uncle Sam’s Pancake House — and Malkin’s nearby home. (Colorado Springs doesn’t allow recreational marijuana shops.)  The shopping experience, from the initial decision to head south to the storm of comments that followed in the wake of the article, was a historic one for the Malkin family.

But what will Michelle remember the most from her first time buying legal weed? “What an incredible experience it was to walk into the shop and have the understanding and compassion of somebody in the business of providing healing,” Michelle said. “A lot of people from out of state, New York or DC, would parachute into our state and sneer at the so-called ‘medical veneer’ that a lot of these shops have.  But there’s no denying the reality that these places provide the services that people want and need, and that was the upshot of the column.”

The column created a whirlwind of activity on Malkin’s website, both positive and negative.  But the takeaways steeled her resolve and gave her a new found perspective. “When I was at the shop, I told my husband that the clerk seemed like a Libertarian to me,” Malkin said.  “What were they doing? They were complaining about the regulations, the bureaucracy, the taxes. Here’s your natural outreach into a nontraditional constituency, right?”

Malkin splits from party-line mob mentality in that she doesn’t believe that marijuana is a gateway drug — “but speaking of gateway drugs, I think this is a gateway policy issue. It’s a gateway for getting people to start moving beyond traditional right and left politics. And I think that’s a good thing.”...

On protecting the Second Amendment and decriminalizing drugs:  “There has been such an infantilization of citizens by the nanny state that it becomes easier and easier to swallow rationalizing increasing the power of government as a way to protect people from both social harm and self harm.  And for people who think about liberty and how the power of the state should be limited, it bothers me greatly that we’ve redefined what social harm is and that there’s been this encroachment on people’s ability to do whatever they want and in their own homes as long as it doesn’t impose social harm outside of your home.  As long as I’ve been thinking about these issues, dating back to my days in Seattle, it’s always seemed to me that there are similar arguments for fiercely protecting Second Amendment rights as there are for decriminalizing drugs, not just for medical marijuana but for recreational as well. And I have to say that my reservations are greater with regard to recreational marijuana, but the very simple point of my column was how grateful we were that the people of Colorado passed Amendment 64 because it provided an opportunity for us to circumvent the bureaucracy because we could just drop by and walk in. I’m absolutely against repealing it.”

On finding capitalism alive and well in the legal pot industry: “We were so sheepish at the pot shop. I’m sure we looked so goofy saying, ‘Are there brownies?’ And she whipped out the cheddar crackers.  And for me, as someone who believes in capitalism, I was just amazed at how many different companies are involved in producing these different products.  From the bakery to those (vape) pen things, some of it was a bit cliché — they had the Tommy Chong banner up top, the big ’70s heavy metal pounding when you went into the recreational side, but it also struck me how we felt safe. There were multiple ID checks and serious guards at the door — and contrast that with god knows what we would have had to do if we tried obtaining it on the streets.”...

On being pro-marijuana, cautiously: “While some people on the pro side who don’t ever want you to acknowledge that there are costs and consequences and abuses, I don’t have any problem with saying, ‘Of course we should be worried about what else can happen here.’ Of course I tell my kids, ‘Don’t you mess with this,’ as I would with any illicit, addictive substance. It’s not a weakness that there are always those concerns, and that’s why I stress the need for the cultural guardrails.  It bothers me to see Snoop Doggy Dogg and this big haze around all these kids — just how irresponsible that is.  And to the extent that the movement has grown up, it’s a tribute to people like Ralph Seeley, for whom it was a matter of individual liberty and principal all along. There will always be people on either side who exploit the extremes.

Just a few recent and older related posts:

May 21, 2014 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7) | TrackBack

"Guilty and Charged": NPR investigation of charges and fees imposed on criminal defendants

As detailed in this series of new pieces, National Public Radio has conducted an in-depth investigation of how states charging criminal defendants and convicted offenders a range of fees. The start of this lead piece for the special series, headlined "As Court Fees Rise, The Poor Are Paying The Price," provides this description of the NPR efforts and findings:

In Augusta, Ga., a judge sentenced Tom Barrett to 12 months after he stole a can of beer worth less than $2.  In Ionia, Mich., 19-year-old Kyle Dewitt caught a fish out of season; then a judge sentenced him to three days in jail.

In Grand Rapids, Mich., Stephen Papa, a homeless Iraq War veteran, spent 22 days in jail, not for what he calls his "embarrassing behavior" after he got drunk with friends and climbed into an abandoned building, but because he had only $25 the day he went to court.

The common thread in these cases, and scores more like them, is the jail time wasn't punishment for the crime, but for the failure to pay the increasing fines and fees associated with the criminal justice system.

A yearlong NPR investigation found that the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders.  It's a practice that causes the poor to face harsher treatment than others who commit identical crimes and can afford to pay. Some judges and politicians fear the trend has gone too far.

A state-by-state survey conducted by NPR found that defendants are charged for many government services that were once free, including those that are constitutionally required.  For example:

  • In at least 43 states and the District of Columbia, defendants can be billed for a public defender.
  • In at least 41 states, inmates can be charged room and board for jail and prison stays.
  • In at least 44 states, offenders can get billed for their own probation and parole supervision.
  • And in all states except Hawaii, and the District of Columbia, there's a fee for the electronic monitoring devices defendants and offenders are ordered to wear.

These fees — which can add up to hundreds or even thousands of dollars — get charged at every step of the system, from the courtroom, to jail, to probation.  Defendants and offenders pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment and to have their DNA samples collected.  They are billed when courts need to modernize their computers.  In Washington state, for example, they even get charged a fee for a jury trial — with a 12-person jury costing $250, twice the fee for a six-person jury.

There are already six stories assembled on this topic available here under the special series heading "Guilty and Charged." Particularly valuable for researchers may be this chart reporting the results of NPR's state-by-state survey of common fees charged to defendants.

May 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (17) | TrackBack

Eighth Circuit and SCOTUS staying (and then later unstaying?) Missouri's execution plans

As detailed in this AP story, now headlined "Missouri Inmate's Hopes Rest With Supreme Court," the federal judiciary has been getting in the way of Missouri's plans to execute a murderer today. Here are the details:

A Missouri inmate with a rare condition that affects the blood vessels was handed a reprieve less than two hours before his scheduled execution, but the state may end up killing him later Wednesday if the U.S. Supreme Court says it can.

Russell Bucklew was scheduled to be executed at 12:01 a.m. Wednesday for the 1996 killing of a romantic rival. He would have been the first U.S. inmate put to death since last month's botched execution in Oklahoma, in which the prisoner's vein collapsed while the lethal drugs were being administered.

Bucklew, 46, has a condition that causes weakened and malformed veins, and his attorneys say this and the secrecy surrounding the state's lethal injection drug combine to make for an unacceptably high chance of something going wrong during his execution.

After an 8th U.S. Circuit Court of Appeals panel suspended the execution Tuesday, only to be overruled hours later by the full court, Supreme Court Justice Samuel Alito issued his own stay, setting the stage for the full high court to weigh the appeal. If the Supreme Court rejects the appeal, Missouri would have until midnight to carry out the execution.

Mike O'Connell, a spokesman for the Missouri Department of Corrections, cautioned against reading too much into Alito's intervention. Alito handles emergency matters for states covered by the 8th Circuit, and two of the six inmates Missouri has executed since switching to a single-drug system in November had appeals that stretched well into the state's 24-hour execution window before the Supreme Court allowed the state to proceed. One of them was executed nearly 23 hours after he originally was scheduled to die....

Bucklew won't be getting help from Missouri Gov. Jay Nixon, a Democrat and death-penalty proponent who rejected Bucklew's clemency request late Tuesday....

Missouri switched from a three-drug protocol to the single drug pentobarbital late last year. None of the six inmates executed since Missouri made the change has shown outward signs of pain or suffering.

May 21, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 20, 2014

Texas teen facing 5-to-life for selling pot brownies(!) highlights prosecutorial sentencing powers

A drug war and severe sentencing story making the media rounds today emerged via this recent local report headlined "Texas man facing possible life sentence for pot brownies." Here are the basics (which have already been sensationalized a bit in some media accounts I have seen):

A Texas man accused of making and selling marijuana brownies is facing up to life in prison if convicted.  That’s because officials in Round Rock have charged him with a first-degree felony.

It’s a move that the man’s family and attorney outraged. “It’s outrageous. It’s crazy. I don’t understand it,” Joe Lavoro, the man’s father said. Like many familiar with the case, Joe does not understand why his son is in so much legal trouble....

The 19-year-old is accused of making and selling pot brownies.  He’s charged with a first degree felony.  “Five years to life? I’m sorry.  I’m a law abiding citizen.  I’m a conservative. I love my country.  I’m a Vietnam veteran, but I’ll be ****ed.  This is wrong. This is ***n wrong!” the father said.

Lavoro’s lawyer agrees. “I was outraged. I’ve been doing this 22 years as a lawyer and I’ve got 10 years as a police officer and I’ve never seen anything like this before,” Jack Holmes, Lavoro’s attorney said.

The former high school football player has a clean record.  The charge is so severe because the recipe includes hash oil.  That allows the state to use the sugar, cocoa, butter and other ingredients to determine the weight of the drugs.  “They’ve weighed baked goods in this case. It ought to be a misdemeanor,” Holmes said.

KEYE reached out to the district attorney to ask how they’re going to prosecute the case.  Our call has not yet been returned....

Jacob’s father wants what’s right. “If he did something wrong, he should be punished but to the extent that makes sense. This is illogical. I’m really upset, and I’m frightened, I’m frightened for my son,” Joe said.

Jacob Lavoro's father is right to be frightened, in large part because it would seem that his son's fate is now almost entirely in the hands of local prosecutors. Though I do not know all the ins and outs of Texas drug laws, I assume that the local prosecutors can (and probably will) ultimately allow Lavoro to plead to some less charge rather than go to trial on a first-degree felony charge carrying a 5 to life sentence. But the fact that such a severe charge with a big-time sentence is even on the table all but ensures that the local prosecutor can extract a plea on whatever terms strikes his fancy.

May 20, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

"Save money, reduce crime: Alternative sentencing works, so Ohio needs to do more of it"

The title of this post is the headline of this notable lead editorial appearing in today's Columbus Dispatch. The Dispatch has a reputation as a pretty conservative paper (e.g., it has endorsed only GOP Prez candidates for nearly a century), so I see this editorial as further significant proof that more and more traditional conservative voices are seeing the value of (and now actively making the case for) sentencing and prison reforms.  Here are excerpts from this editorial:

Ohio has made progress in easing prison crowding by offering alternatives for nonviolent offenders. But a look at the numbers shows that more can be done. The good news is, Ohio already knows what works: putting nonviolent felons in programs that make them better prepared to lead crime-free lives rather than in expensive prisons with hardened criminals.  The challenge is to find the resources for the up-front investment.

Alternative-sentencing programs, such as the 18 community-based correction facilities and other programs based on drug-and-alcohol treatment and life-skills training, have a record of reducing recidivism.  But the state hasn’t invested in them equally across the state, according to Ohio Division of Rehabilitation and Correction Director Gary C. Mohr....

A proposal contained in one of the mid-biennium budget-review bills would provide about $13 million to add 400 to 500 community-facility beds across the state.  Because stays in such programs typically are three months, each of those beds could allow three people per year to get help and treatment rather than a prison stay.  That saves taxpayers money and increases the chance that the offender will go on to a productive life — a double win.

As Ohio’s prisons grow more crowded and potentially more dangerous, the need for more alternatives becomes clearer. One in every 175 Ohio adults is in a state prison, and with nearly 51,000 inmates, the system has 30 percent more than it was designed for. Considering that each of those inmates costs taxpayers nearly $23,000 a year and that a large number are low-level, nonviolent offenders, it’s an expensive way to deal with societal problems.

A change to state sentencing law in 2011 aimed to ease the burden by steering more nonviolent offenders to community-based correction programs. The largest counties responded, and two years ago the prison population seemed to be on the decline. But Ohio’s wave of heroin and other opiate addictions, combined with too few alternative-treatment options, have swelled the prison population again.... But Mohr now finds himself with a new peak population and no reduction in sight unless the state invests more in alternatives.

Legislators should take note of the successful track record of alternative correction and steer available funds in that direction. Ohio won’t benefit from more prisons; putting low-level criminals in prison is a lousy business model with a poor return on investment. Spending less to provide the type of supportive correction that can turn around lives is a much smarter proposition. And it saves prison beds for those who pose the greatest threat to society.

Recent related post:

May 20, 2014 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, May 18, 2014

Identifying better DOJ prosecutorial priorities than low-level drug crimes

Perhaps the main reason I am a supporter of the Smarter Sentencing Act is my desire to have Congress send an important message about federal criminal justice priorities to the US Justice Department and others through a relatively modest revision of existing mandatory minimum sentencing provisions.  Notably, the preamble to the SSA makes express mention of this goal, describing the purpose of the Act as designed to "focus limited Federal resources on the most serious offenders."  By reducing (though not eliminating) mandatory minimums for various drug crimes, Congress would be effectively saying that federal prosecutors ought not prioritize federal prosecutions of first offenders who may have been involved in dealing only a few ounces of crack or meth or heroin.

Critically, under current law and after the SSA were to become law, if and whenever a drug offender has even a single prior drug offense or just possesses a firearm or causes any significant bodily harm, additional heightened mandatory sentences kick in.  Thus, the only drug dealers likely to benefit significantly from the SSA are true first-offenders who deal only a few ounces of crack or meth or heroin.  I feel confident that major dealers, repeat dealers, and those who use or threaten violence will still be a priority for federal prosecutors after passage of the SSA, and that the feds will still have plenty of prosecutorial tools to take down serious drug traffickers.  And by making sure that lengthy prison terms are mandated only for the most serious offenders, federal prosecutorial and corrections resources can and should be better focused on other crimes, especially crimes that only federal prosecutors can effectively and efficiently prosecute.

What kinds of other crimes, you might ask, would I want federal prosecutors to prioritize over going after first offenders involved in dealing only a few ounces of crack or meth or heroin?  Helpfully, old pal (and forner federal prosecutor) Bill Otis in a pair of new posts over at Crime & Consequences identifies two classes of federal fraud and corruption that ought to be a signal concern for federal prosecutors. Here I will provide links and highlights from these two posts:

A New Prosecution Priority for DOJ: "The lead story in the Washington Post today reports that possibly a million applicants for Obamacare subsidies may have 'misstated' their income.... DOJ should not allow something like that to happen again.  Whether one loves Obamacare or hates it, no one has the right to bilk it by cheating.   A few hundred highly publicized false statement prosecutions would go a long way toward keeping applicants honest and, therefore, keeping the program as solvent as it's going to get."
Another Prosecution Priority for DOJ:  "My last post suggested that the Justice Department prosecute at least some of the thousands of Obamacare applicants who have intentionally falsified statements of their income in order to bilk the taxpayers for even more than they're being bilked out of already.  There is second priority I would suggest for DOJ examination -- a priority that, it seems, the Department may have taken up.  As the New York Times reports: 'The Department of Veterans Affairs' inspector general is working with federal prosecutors who are trying to determine whether criminal violations occurred at a medical center in Phoenix accused of falsifying data or creating secret waiting lists intended to hide months long delays for veterans to see doctors, a top official told a Senate committee on Thursday.'"

I suspect Bill would be quick to assert that the federal government in general and DOJ in particular has plenty of resources to keep going after all drug offenders and to now start going after Obamacare cheats and federal executive branch liars.  Though it is surely true that federal prosecutions are not a zero-sum game, the fact remains that the sentencing laws on the books necessarily serve to structure and greatly influence the exercise of prosecutorial discretion for this Administration and others.  Plus, state prosecutors can (and still do) go after low-level (and high-level) drug dealers, whereas state prosecutors cannot go after after Obamacare cheats and federal executive branch liars.

In short, I heartily endorse Bill's suggestion that AG Holder and his prosecutorial agents start going after Obamacare cheats and federal executive branch liars.  And that endorsement of DOJ prosecutorial priorities provides an additional reason for my support of the SSA and its effort to reorient federal prosecutorial priorities accordingly.

Some prior posts about the SSA and debates over federal sentencing reform:

May 18, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Detailing the death-penalty abolitionist's strategy and vision for the path to aboilition

This local article from Oregon, headlined "Death penalty opponent sees tough legal fight ahead," provides a helpful accounting of the current game-plan embraced by many hard-core death-penalty abolitionist.  Here are excerpts:

A professor at American University made no secret of what he hoped to accomplish on a four-city visit to Oregon this week. Richard Stack, author of two books critical of the death penalty, wants to move Oregonians closer to abolishing it. Though Oregon is among the 32 states with it, the number that have abolished it grew from 12 to 18 in the past six years.

“We have a strategy of picking off a state at a time,” he said in an interview prior to a talk at Portland State University. “As we add states to the repeal column, when we hit No. 26, we will have a majority that do not have it.”

Then, he said, the NAACP Legal Defense Fund will go to the U.S. Supreme Court to argue that the death penalty violates the federal constitutional guarantee against “cruel and unusual punishment” under the 8th Amendment. “It’s the only way that some states will fall into line” such as Texas, which has executed 515 people since 1982 when current death-penalty laws were in place. Texas leads the states in executions.

Stack, an associate professor of public communication at the university in Washington, D.C., has written “Dead Wrong” and in 2013, “Grave Injustice: Unearthing Wrongful Executions.” He also spoke at events in Monmouth, Eugene and Corvallis.

Gov. John Kitzhaber, who let two executions proceed in 1996 and 1997 during his first term, has vowed there will be no further executions while he is in office. His temporary reprieve in 2011 of Gary Haugen, an inmate who sought to waive his appeals and be executed, was upheld by the Oregon Supreme Court last year.

Kitzhaber’s current term ends Jan. 12, 2015. If he is re-elected Nov. 4, that term will end Jan. 14, 2019. Washington Gov. Jay Inslee took a similar stance on Feb. 11.

Among other potential states for repeal advocates are Colorado, Delaware, Kansas, Montana and New Hampshire.

Oregon voters would have to repeal the death penalty, which since the state assumed responsibility for executions in 1903, voters have repealed twice and reinstated three times. The most recent vote was on a pair of ballot measures in 1984. They were necessitated when the Oregon Supreme Court overturned a 1978 ballot measure on grounds that juries, not trial judges, had to impose the penalty after determining guilt....

Lawmakers heard but failed to advance a proposed repeal measure in their 2013 session. Ron Steiner, who spoke for Oregonians for Alternatives to the Death Penalty, said repeal advocates seek to qualify an initiative measure for the 2016 general election ballot.

Three former Oregon chief justices dating back three decades – Edwin Peterson, Wallace Carson and Paul De Muniz – have announced their opposition to the death penalty, as has Frank Thompson, who as superintendent of the Oregon State Penitentiary oversaw the 1996 and 1997 executions. Steiner acknowledges that Oregonians sampled in a straight up-or-down poll say they support the death penalty. But he also said that support softens when they are asked more specific questions about it – including the substitution of a true life-without-release option.

May 18, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack