Monday, January 06, 2014

Lamenting the "ghosts ... still serving time under [crack] sentences that would not have been imposed under the new law"

Linda Greenhouse has this notable new op-ed in the New York Times headlined "Crack Cocaine Limbo." Here are excerpts:

President Obama earned a rare moment of bipartisan acclaim last month when he commuted the sentences of eight long-serving federal prisoners. Their crack cocaine offenses had resulted in the harsh penalties mandated by a sentencing formula that Congress repudiated when it passed the Fair Sentencing Act of 2010. The old formula, under which possession of a quantity of crack earned the same sentence as possession of 100 times that quantity of powdered cocaine, was “now recognized as unjust,” the president said.

But there were ghosts at last month’s party: thousands of federal inmates still serving time under sentences that would not have been imposed under the new law. Most are black. As is widely recognized, crack has been the cocaine of choice for African-American users and dealers even as white offenders choose powder. The racially disparate impact of the old law, which dates from the crack-cocaine panic of the mid-1980s with its now-discredited theory that crack was many times more dangerous, made reform a civil rights priority.

These prisoners remain in drug-sentencing limbo. When Congress passed the Fair Sentencing Act, which reduced the crack-to-powder sentencing ratio from 1:100 to 1:18, it was silent on retroactivity. The Supreme Court granted limited relief two years ago, ruling that those who committed their crimes before the law took effect in August 2010 but who were not sentenced until later could retroactively get the new law’s benefit....

Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, introduced a bill last summer to authorize judges to grant relief to pre-2010 prisoners on a case-by-case basis. But the Smarter Sentencing Act, as its sponsors call it, has yet to move toward a vote....

Society made a judgment, expressed in a bipartisan political consensus, that disparities of this kind were irrational and racially inequitable. Passage of the Fair Sentencing Act was preceded by years of debate, including pleas by federal judges who hated what the law made them do. Gradually, insight emerged. Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.

January 6, 2014 in Clemency and Pardons, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

Cross-posted at PrawfsBlawg

January 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Sunday, January 05, 2014

A political and media tipping point?: New York's Gov to reform state's marijuana laws

The title of this post is prompted the fact that today's New York Times has this lengthy lead story on its front page above the fold under the headline "New York State Is Set to Loosen Marijuana Laws." Here are excerpts:

Joining a growing group of states that have loosened restrictions on marijuana, Gov. Andrew M. Cuomo of New York plans this week to announce an executive action that would allow limited use of the drug by those with serious illnesses, state officials say.

The shift by Mr. Cuomo, a Democrat who had long resisted legalizing medical marijuana, comes as other states are taking increasingly liberal positions on it — most notably Colorado, where thousands have flocked to buy the drug for recreational use since it became legal on Jan. 1.

Mr. Cuomo’s plan will be far more restrictive than the laws in Colorado or California, where medical marijuana is available to people with conditions as mild as backaches. It will allow just 20 hospitals across the state to prescribe marijuana to patients with cancer, glaucoma or other diseases that meet standards to be set by the New York State Department of Health.

While Mr. Cuomo’s measure falls well short of full legalization, it nonetheless moves New York, long one of the nation’s most punitive states for those caught using or dealing drugs, a significant step closer to policies being embraced by marijuana advocates and lawmakers elsewhere. New York hopes to have the infrastructure in place this year to begin dispensing medical marijuana, although it is too soon to say when it will actually be available to patients.

Mr. Cuomo’s shift comes at an interesting political juncture. In neighboring New Jersey, led by Gov. Chris Christie, a Republican whose presidential prospects are talked about even more often than Mr. Cuomo’s, medical marijuana was approved by his predecessor, Jon S. Corzine, a Democrat, but was put into effect only after Mr. Christie set rules limiting its strength, banning home delivery, and requiring patients to show they have exhausted conventional treatments. The first of six planned dispensaries has already opened. Meanwhile, New York City’s new mayor, Bill de Blasio, had quickly seemed to overshadow Mr. Cuomo as the state’s leading progressive politician.

For Mr. Cuomo, who has often found common ground with Republicans on fiscal issues, the sudden shift on marijuana — which he is expected to announce on Wednesday in his annual State of the State address — was the latest of several instances in which he has embarked on a major social policy effort sure to bolster his popularity with a large portion of his political base....

The governor’s action also comes as advocates for changing drug laws have stepped up criticism of New York City’s stringent enforcement of marijuana laws, which resulted in nearly 450,000 misdemeanor charges from 2002 to 2012, according to the Drug Policy Alliance, which advocates more liberal drug laws. During that period, medical marijuana became increasingly widespread outside New York, with some 20 states and the District of Columbia now allowing its use....

[Mr. Cuomo's] shift, according to a person briefed on the governor’s views but not authorized to speak on the record, was rooted in his belief that the program he has drawn up can help those in need, while limiting the potential for abuse. Mr. Cuomo is also up for election this year, and polls have shown overwhelming support for medical marijuana in New York: 82 percent of New York voters approved of the idea in a survey by Siena College last May.

Still, Mr. Cuomo’s plan is sure to turn heads in Albany, the state’s capital. Medical marijuana bills have passed the State Assembly four times — most recently in 2013 — only to stall in the Senate, where a group of breakaway Democrats shares leadership with Republicans, who have traditionally been lukewarm on the issue.

Mr. Cuomo has decided to bypass the Legislature altogether. In taking the matter into his own hands, the governor is relying on a provision in the public health law known as the Antonio G. Olivieri Controlled Substance Therapeutic Research Program. It allows for the use of controlled substances for “cancer patients, glaucoma patients, and patients afflicted with other diseases as such diseases are approved by the commissioner.”

Mr. Olivieri was a New York City councilman and state assemblyman who died in 1980 at age 39. Suffering from a brain tumor, he used marijuana to overcome some of the discomfort of chemotherapy, and until his death lobbied for state legislation to legalize its medical use. The provision, while unfamiliar to most people, had been hiding in plain sight since 1980. But with Mr. Cuomo still publicly opposed to medical marijuana, state lawmakers had been pressing ahead with new legislation that would go beyond the Olivieri statute.

Richard N. Gottfried, a Manhattan Democrat who leads the assembly’s health committee, has held two public hearings on medical marijuana in recent weeks, hoping to build support for a bill under which health care professionals licensed to prescribe controlled substances could certify patient need. Mr. Gottfried said the state’s historical recalcitrance on marijuana was surprising. “New York is progressive on a great many issues, but not everything,” he said.

Mr. Gottfried said he wanted a tightly regulated and licensed market, with eligible patients limited to those with “severe, life-threatening or debilitating conditions,” not the broader range of ailments — backaches and anxiety, for instance — that pass muster in places like California, which legalized medical marijuana in 1996. “What we are looking at bears no resemblance to the California system,” Mr. Gottfried said....

Ethan Nadelmann, the executive director of the Drug Policy Alliance, praised Mr. Cuomo’s decision as “a bold and innovative way of breaking the logjam” in Albany, though it may not be the final word on medical marijuana. Mr. Cuomo “remains committed to developing the best medical marijuana law in the country,” Mr. Nadelmann said. “And that’s going to require legislative action.”

For a host of (mostly economic and practical) reasons, legal reforms and policy developments in New York often can and usually will get more than its fair share of national political and media attention from elites up and down the east coast and even around the nation. Indeed, the very fact this story in not due to break "officially" until later this week, but is still now front-page news in the first Sunday New York Times in 2014 shows how some New York stories often are treated like national and nationally-important stories from the get-go.

Especially interesting in this coverage and in the development of this issue in 2014, it seems that Gov. Cuomo has decided he needs to make a (bold?) move toward marijuana reform for political reasons. I am not surprised that recent developments in Colorado and elsewhere may change political calculations by lots of politicians on these matters over time, but I did not expect to see things moving so fast in important places like New York and involving important established state officials with national political aspirations.

Cross-posted at Marijuana Law, Policy & Reform

January 5, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, January 04, 2014

Will bipartisan momentum get Congress to enact some real and really consequential sentencing reform?

The question in the title of this post is prompted by this lengthy new AP piece, headlined "Momentum behind sentencing changes grows as supporters in Congress seek changes this year."  Here are excerpts:

An unusual alliance of tea party enthusiasts and liberal leaders in Congress is pursuing major changes in the country's mandatory sentencing laws. What's motivating them are growing concerns about both the fairness of the sentences and the expense of running federal prisons.

The congressional push comes as President Barack Obama and his Cabinet draw attention to the issue of mandatory sentences, particularly for nonviolent drug offenders. Supporters say mandatory minimum sentences are outdated, lump all offenders into one category and rob judges of the ability to use their own discretion. They also cite the high costs of the policies. The Justice Department spends some $6.4 billion, about one-quarter of its budget, on prisons each year, and that number is growing steadily....

Tough-on-crime drug policies once united Republicans and Democrats who didn't want to appear weak on crime. Now reversing or revising many of those policies is having the same effect.

The Fair Sentencing Act, passed in 2010, drew bipartisan support for cutting penalties on crack cocaine offenses. The bill reduced a disparity between crack-related sentences and sentences for other drugs, though it only addressed new cases, not old ones.  [Senator Dick] Durbin, one of that bill's chief sponsors, has written a much broader bill with [Senator Mike] Lee, called the Smarter Sentencing Act. It would expand a provision that gives judges discretion for a limited number of nonviolent drug offenders. The new law would allow judges the same latitude for a larger group of drug offenders facing mandatory sentences.

It's one of four bills dealing with sentencing that the Senate Judiciary Committee is expected to take up early in the year. The committee chairman, Sen. Patrick Leahy, D-Vt., said he wants one consensus bill to clear the committee.

Leahy is a co-sponsor on the Durbin-Lee bill but has also introduced legislation with Sen. Rand Paul, R-Ky., that would expand the safety valve even more, to all federal cases with mandatory sentences if certain conditions are met.

Sen. John Cornyn, R-Texas, introduced legislation late in December that is based on changes in Texas' state prison system.  A separate bill, sponsored by Sen. Sheldon Whitehouse, D-R.I., and Sen. Rob Portman, R-Ohio, allows inmates to earn credit for completing programs designed to reduce recidivism.

Leahy's committee delayed writing a sentencing bill several times in 2013.  But supporters noted that the last sentencing legislation took months to negotiate and said that the committee has delayed work until early 2014 in large part because behind-the-scenes talks are proving fruitful.  Durbin said he and Lee had been lobbying their fellow committee members — Durbin talking to skeptical Democrats, Lee to Republicans.  In the House, Rep. Raul Labrador, R-Idaho, a tea party conservative, and Rep. Bobby Scott, D-Va., are co-sponsors of a companion to Durbin and Lee's bill.

A number of outside groups have expressed support for the Durbin-Lee bill, too, and they run the ideological spectrum, including the conservative Heritage Action, the American Bar Association, the NAACP and the American Civil Liberties Union. 

January 4, 2014 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1) | TrackBack

"Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"

The title of this post is the title of this notable new paper now available on SSRN and authored by Frank O. Bowman III.  Here is the abstract:

This Article considers with a skeptical eye the Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), finding unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (“LWOP”).

Miller and Graham v. Florida, 130 S. Ct. 2011 (2010), in which the Court voided statutes imposing life without parole on juveniles who committed non-homicide crimes, are striking for several reasons. First, they impact juvenile justice because the Court has continued down the path it took in Roper v. Simmons, 543 U.S. 551 (2005), when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less culpable for crime and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. Second, the Court’s reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan’s majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether of death or a term of imprisonment.

This Article contends that, while the results of Miller and Graham are gratifying as sentencing policy, the opinions announcing those results are troubling as a constitutional matter because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures – state and federal – to the courts.

January 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (22) | TrackBack

Friday, January 03, 2014

Pennsylvania task force struggling through comprehensive review of state's death penalty

As reported in this local article, headlined "PA Task Force Delays Deadline For Possible Death Penalty Reforms," folks in the Keystone State are struggling through an effort to better understand the state's death penalty. Here are the details:

Thirty-two states, including Pennsylvania, have the death penalty. Since 1976 when the U.S. Supreme Court reinstated capital punishment, Rhode Island (1984), New York (2007), New Jersey (2007), New Mexico (2009) Connecticut (2012), and Maryland (2013) have abolished it. But the repeal in the last three states was not retroactive so they still have prisoners on death row. Massachusetts' death penalty statute was nullified in 1984 by court rulings.

Could Pennsylvania become the next state to abolish capital punishment? The Pennsylvania Task Force and Advisory Committee on Capital Punishment is nearing the end of a two-year comprehensive study of all aspects of the death penalty. “No one has ever done this before in Pennsylvania,” said state Sen. Stewart Greenleaf (R-Montgomery), whose legislation created the commission.

The Penn State Justice Center for Research, the Inter-branch Commission on Gender, Racial and Ethnic Fairness and the Joint State Government Commission are researching all aspects of capital punishment for the task force. They were supposed to report findings and make recommendations this month but have asked for an extension to spring to complete what Greenleaf calls a “very laborious and time-consuming” process, which involves examining death penalty cases in every county of the state.

Three prisoners have been executed in the commonwealth since 1976, two in 1995 and the other in 1999. During that same 37-year period, 1,352 prisoners were put to death in the U.S.

Greenleaf said the researchers are looking at policies, procedures and impact of the death penalty including whether it’s being applied disproportionately based on race. “They’re having primary concerns themselves with statutory aggravators and mitigators; they’re the factors that come into play when a jury decides whether they give the death penalty or not,” Greenleaf said.

Of the 189 inmates on Pennsylvania’s death row, 101 are black — 53 percent. Louisiana has the highest rate of blacks on death row at 70 percent. Nationwide, 41 percent of those awaiting execution are black. The task force is also looking at everything from intellectual disabilities of inmates to the appeals process, from the use of lethal injection to the impact of the process on victims’ families.

Greenleaf, a former prosecutor, said the panel could suggest eliminating the death penalty in Pennsylvania. “We have to look at the report, but, of course, it could result in abolishing it or it could result in some changes or modifications of the process, everything is on the table right now," he said. "We want to see what their recommendations are.”

He added that the commonwealth’s adoption of DNA testing several years ago, which resulted in the exoneration of one death row inmate, is a pivotal factor in the basic question. “Is it more important that we convict every guilty person and execute them or is it more important that we never execute an innocent person?" Greenleaf said. "Our founding fathers said that it’s better to acquit a few guilty people than it is to convict one innocent person.”

January 3, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, January 01, 2014

Holiday references and caseload details in Chief Justice's 2013 year-end report

The headlines generated by the traditional "Year-End Report on the Federal Judiciary" from the Chief Justice of the United States (collected here at How Appealing) are justifiably all about the Chief's extended discussion of budget issues. But this year's report, which can be accessed here, also it includes a couple notable criminal justice caseload statistics as well as introductory paragraphs worthy of a poetic blogger.  Here is the how the 15-page report gets started and its criminal caseload details:

The year’s end brings predictable constants, including the revival of favorite phantoms —Scrooge’s ghosts and George Bailey’s guardian angel — who step out from the shadows for their annual appearance and then fade away.  Who doesn’t welcome the familiarity of the seasonal cycles, or retelling classic stories that, at their core, contain important truths? There are, however, some cycles from which we would all wish a break.  At the top of my list is a year-end report that must once again dwell on the need to provide adequate funding for the Judiciary.

I would like to choose a fresher topic, but duty calls.  The budget remains the single most important issue facing the courts.  This year, however, let’s take a page from Dickens and Capra.  Let’s look at what has made our federal court system work in the past, what we are doing in the present to preserve it in an era of fiscal constraint, and what the future holds if the Judiciary does not receive the funding it needs....

After rising four percent in 2012, filings in the regional courts of appeals dropped two percent to 56,475 in 2013.  Appeals involving pro se litigants, which amounted to 51 percent of filings, fell one percent.  Criminal appeals decreased 13 percent....

Filings for criminal defendants (including those transferred from other districts) decreased three percent to 91,266.  Excluding transfers, fewer defendants were reported for most types of major offenses, including drug crimes.  Filings for defendants charged with immigration violations dropped five percent.  The southwestern border districts accounted for 75 percent of the nation’s immigration defendant filings.  Defendants prosecuted for sex offenses rose 10 percent.  There also were increases in defendants charged with violent crimes and regulatory offenses....

The 131,869 persons under post-conviction supervision on September 30, 2013, was less than one percent below the total one year earlier. Persons serving terms of supervised release after leaving correctional institutions increased one percent to 109,379 and constituted 83 percent of all persons under supervision. Cases opened in the pretrial services system in 2013, including pretrial diversion cases, declined six percent to 103,003.

January 1, 2014 in Data on sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, December 31, 2013

"President Obama, the merciless?"

The title of this post is the headline given to this notable new CNN commentary piece authored by P.S. Ruckman Jr., who runs the always great Pardon Power blog.  Here are excerpts:

This month, one of the least merciful presidents in the history of the United States granted 13 pardons and eight commutations of sentence.  The grants moved President Barack Obama's overall mark past the administrations of John Adams (who served only one term), William H. Harrison (who died of pneumonia after serving only 30 days), James Garfield (who was fatally wounded by an assassin after serving only four months) and George Washington.

The New York Times complained that, when it came to the pardon power, there was just "no excuse" for Obama's "lack of compassion" and encouraged him to "do much more." The American Civil Liberties Union called the pardons "a step" and hoped the President would "continue to exercise his clemency powers."  Meanwhile, the Cato Institute, a libertarian think tank, lamented the "drought" of pardons in the Obama administration and called the recent grants "mingy and belated."  Conservative columnist Debra Saunders wrote that it was "about time" Obama acted, and even tossed out the possibility/hope that he might "do it again soon."...

No one is clamoring for violent criminals to be yanked out of prisons and tossed into the streets to wreak havoc on society.  No one is lusting for the considered judgment of judges and juries to be whimsically overturned by politicians leaving office and, in the process, sidestepping accountability.

But, increasingly, there is recognition that budgets are tight, and prisons are both overcrowded and expensive.  The recidivism of those who spend time in prisons and exit without anything like serious rehabilitation is also costly.  Congress' recent recognition of the failure (if not outright unjust nature) of sentencing laws appears, to many, as still yet another indicator that there is consensus regarding the status of the so-called war on drugs: It has not worked out very well....

The pardon power will always carry an inherent political "risk," because no one can perfectly predict the future behavior of recipients and everyone's judgment can be second-guessed, if not mischaracterized.  Informed persons know Mike Huckabee did not "pardon" Maurice Clemmons and Michael Dukakis did not "pardon" Willie Horton.  But, of course, executives cannot always survive political storms with the support and encouragement of informed persons.

Nonetheless, the Founding Fathers considered the pardon power an integral part of our system of separation of powers and checks and balances.  Its presence in the Constitution is premised on the notion that Congress and the Courts are not always perfect.  Anyone care to disagree? It simply follows that, if the pardon power is being neglected or abused, then government is not doing what it was meant to do.

Alexander Hamilton furthermore noted, in the Federalist Papers, that the criminal codes of nations have an almost natural tendency toward over-severity.  For that reason, he argued, there should be easy access to mercy. Yes, you read that right, "easy access," or, in other words, something very different than what is going on in the Obama administration.

The fortunate thing is, presidents and governors can very easily minimize the political "risk" of pardoning by granting pardons regularly, consistently, throughout terms, as opposed to, very questionably, at the "last minute." While Christmas pardons may make some feel warm and fuzzy, they also send a message that is more counterproductive than anything.  They seem to say mercy is an afterthought, or worse, a gift, that may or may not be deserved.

The fact of the matter is the majority of individual acts of executive clemency in our lifetime have been pardons, which simply restored the civil rights of the recipients.  No one was sprung from jail.  Violent criminals were not tossed into the streets.  Judges and juries were not overturned.  Recipients have typically committed minor offenses, many involving no incarceration whatsoever, and usually, many years if not decades before pardon.  FBI background checks documented they had integrated back into society as law-abiding productive members.  Their pardons were not "gifts" so much as they were well deserved recognition.

Have these pardons been high-wire maneuvers?  Have they required presidents to spend precious political capital?  Not at all.  Obama has granted 52 pardons to date.  There is a much better than average chance that readers cannot name a single recipient.  George W. Bush granted almost 200.

So, why can't Obama restore the civil rights of more applicants?  Why doesn't he?  There is no obvious answer to that question, save lack of care and concern.  Where is the President who said his religion teaches him the importance of redemption and second chances?  Where is the hope?

December 31, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, December 30, 2013

NY Times editorial talks of "Slow Demise of Capital Punishment"

The title of this new New York Times editorial, "The Slow Demise of Capital Punishment," is probably better viewed as wishful thinking rather than a sound prediction. Nevertheless, as excerpted below, the New York Times editorial board makes its most potent pitch against the death penalty in this piece:

More states are coming to recognize that the death penalty is arbitrary, racially biased and prone to catastrophic error. Even those that have not abolished capital punishment are no longer carrying it out in practice.

In 2013, Maryland became the sixth state to end capital punishment in the last six years. Eighteen states and the District of Columbia have abolished the penalty, and it is dormant in the federal system and the military. Thirty states have had no executions in the last five years.

As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.

Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly....

Of course none of this matters to, say, Troy Davis or Cameron Todd Willingham, both of whom were executed in recent years despite deep doubts about their guilt. Nor is it of much use to the 3,100 people still sitting on death row around the country.

The argument is not that all of these people are innocent, or that they deserve to be released. Most would be justly imprisoned for most if not all of their life. But the death penalty as applied in America now — so thoroughly dependent on where the defendant lives and how much money he can spend on his defense — violates the constitutional guarantees of due process and equal protection, and no longer can overcome the Eighth Amendment’s ban on cruel and unusual punishments.

The dishonor and shame of capital punishment are further highlighted by the current shortage of lethal-injection drugs, a “crisis” resulting from the refusal of European drug makers to provide them for executions. As a result, states that use lethal injection have turned to unregulated compounding pharmacies, and have even passed laws to hide the identity of those pharmacies and the chemical makeup of the drugs. This only underscores the fact that when it comes to the death penalty, the United States is virtually alone in the Western world.

Actually, all of these developments are in fact of great "use to the 3,100 people still sitting on death row around the country." Given that all these developments help explain why the US now averages less than 50 executions each year (and only a few dozen outside of Texas), the vast majority of murderers serving death sentences now should know that they are far more likely to die of old age in prison rather than in an execution chamber. (And, perhaps better yet for these murderers, their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.)

December 30, 2013 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

Sunday, December 29, 2013

Latest USSC quarterly data show (thanks to AG Holder?) record number of judge-initiated below-range sentences

I am intrigued to see that, as reported in Table 4 with the Fourth Quarter FY13 Quarterly Sentencing data report posted here at the US Sentencing Commission's website, there was a notable (though still small) uptick in the number of below guideline sentences imposed by federal district judges during the most recent quarter (from July 2013 to September 2013). Specifically, after a full year in which below-guideline sentence were imposed each quarter in just around 18.5% of all federal cases, in the most recent quarter the rate of judge-initiated below-range sentences jumped to 19.1%.  This marks, I believe, the highest percentage of judge-initiated below-range sentences in any quarter on record.

As the title of this post hints, I am inclined to hypothesize that a few more judges were willing to impose below-guideline sentences in a few more federal cases in the wake of Attorney General Eric Holder's big early August speech to the ABA lamenting excessive use of incarceration in the United States. When the US Attorney General says "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," I surely hope federal judges are listening and thinking even harder about whether to follow harsh guidelines that tend to recommend pretty long prison sentences in most cases.

That all said, the latest new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that somewhat more than 50% of all federal sentences are within the calculated guidelines range, and that below-guideline sentences are a result of a prosecutor's request (which occurs in well over 25% of all cases).

December 29, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, December 27, 2013

"White man charged with 'knockout game' hate crime. Racial hypocrisy?"

Folks on this blog (myself included) often discuss and debate the impact of racial issues, federalism and prosecutorial discretion on the operation of our nation's criminal justice systems.  Consequently, this new Christian Science Monitor article with the same headline of this post just caught my eye as blogworthy. Here is the article's subheading: "The Obama administration's decision to charge a white man with a hate crime for allegedly punching a black man as part of the knockout game has led to criticism that it is applying the law unevenly." And here is more from the piece:

The US Department of Justice on Thursday stepped into the cultural fray about the so-called “knockout game” when it brought federal hate crime charges against a white Texas man for assaulting an unsuspecting black man.

The decision shines a brighter spotlight on the knockout game, in which an assailant tries to knock out a bystander with a single punch. A spate of incidents have gathered national attention in recent months, though it is unclear whether the game has become more popular or whether the Internet has simply allowed for isolated incidents to be broadcast more widely.

The majority of the reported incidents, however, have involved black men targeting white victims – and none triggered federal involvement. The fact that the Justice Department has elected to step in now, when a black man was the victim, has led to criticism among conservative pundits that the Obama administration is applying the hate-crime statute unevenly....

Conrad Barrett was arrested Thursday and charged under federal hate crimes law, which defines a hate crime as “motivated by enmity or animus against a protected class.” (The Federal Bureau of Investigation also lists anti-white crimes as hate crimes.)...

Federal prosecutors say Mr. Barrett planned the Nov. 24 attack, which he filmed with his cellphone. He approached “G.C.”, an elderly black man, and said, “How’s it going, man?” then punched him so hard that G.C.'s jaw was broken in two places and he lost three teeth. Barrett then allegedly cried “knockout!” and ran.

He was caught after he told the tale at a bar, where an off-duty cop was present. Federal prosecutors argue that the attack was motivated by racial animus because police uncovered videos where Barrett allegedly used racial epithets and at one point said that black people “haven’t fully experienced the blessing of evolution.” In another video from the day of the assault, Barrett says, “If I were to hit a black person, would this be nationally televised?”

A single hate crime charge carries a maximum of 10 years in federal prison and a $250,000 fine.

Some conservative bloggers see racial hypocrisy in the charges. “This case shows how warped law enforcement has gotten as a result of hate crime legislation,” writes Rick Moran on the American Thinker blog. “No matter who is in charge, the law will always be selectively enforced. It makes a mockery of the notion of equal justice under the law.”

Concern about the game has percolated within the black community. This fall, several black leaders, including Philadelphia Mayor Michael Nutter, spoke out about the knockout game and warned black parents, in particular, about the consequences for dangerous behavior by their kids.

Hate crime charges have been brought this year against one black suspect accused of playing the knockout game, but they were state charges brought by New York in the case of a knocked-out Jewish man.

For his part, Jack Levin, a criminologist at Northeastern University in Boston, is not convinced that knockout game attacks are growing.  He argues in an upcoming journal article that racially fueled knockout attacks are in the news is because they’ve actually become rarer than in the past, so they are more notable.  The 1990s, he says, had far more reports of so-called “thrill hate crimes” -- think white teenagers beating up homeless men....

According to FBI hate crime statistics, 22 percent of the 3,297 reported racially motivated hate crimes in 2012 were anti-white, while 66 percent were anti-black. (Others included anti-Pacific Islander and anti-Alaskan native attacks.) The Justice Department insisted Thursday that it does not discriminate in how it makes decisions on hate crime charges. “Suspected crimes of this nature will simply not be tolerated,” said US Attorney Kenneth Magidson of the Southern District of Texas. “Evidence of hate crimes will be vigorously investigated and prosecuted with the assistance of all our partners to the fullest extent of the law.”

Especially in light of the fact that "thrill" beatings are likely always to be localized assaults and that such crimes may actually be declining even as media reports about them increased, I am inclined to criticize the feds for getting involved at all before I will express concerns about racial disparities in how local federal prosecutors decide to bring hate-crime federal charges. More broadly, to the extent that a lot of federal involvement in state matters has often been justified by a concerns that southern courts have in the past been much more concerned about white victim than black ones, the fact that the feds have gotten involved in a case like this in Texas (perhaps after state authorities were slow to respond) involving a younger hoodlum going after elderly man, makes me hesitant to throw around labels like racial hypocrisy until I had more detailed information about why prosecutors moved forward with federal charges in this case but not in others.

That all said, this case and the reaction thereto provides further support for my belief that everyone tends to favor a potent federal criminal justice system and unregulated federal prosecutorial discretion unless and until the feds start using their broad powers in ways that a particular group dislikes.

December 27, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, December 26, 2013

Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders

Mass sjcThanks to this Christmas night post at How Appealing, I just discovered that on Christmas eve the Supreme Judicial Court of Massachusetts issued two big related rulings (available here and here) which not only held that the Supreme Court's Miller ruling is to be applied retroactively but also that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights."  Because I am on the road today, I will not have the chance to consume this significant rulings fully, but I can here link to and quote from this lengthy report on the rulings from the Boston Globe:

The state’s highest court struck down life sentences without parole for juveniles on Tuesday, saying scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are “not fully developed.”

The Massachusetts Supreme Judicial Court decision is retroactive, meaning that, as one example, John Odgren, the suburban special needs student who stabbed 15-year-old James F. Alenson in the bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007, and received a mandatory life sentence, now could have a chance of parole one day.

“We are very hopeful that the parole board is going to examine these kids’ lives carefully and will be giving them a real meaningful opportunity for release,” said Patty Garin, Odgren’s attorney. But some district attorneys said they were concerned about the ruling and would argue against parole in some cases.

The decision is a marked reversal for Massachusetts, where juveniles found guilty of murder have faced some of the harshest laws in the nation. The decision also is notable for its reliance on the growing field of research into the juvenile brain.

“Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved,” the court wrote. “Therefore, it follows that the judge cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.”...

The ruling goes farther than the Supreme Court decision in 2012 that struck down automatic sentences of life without parole for juveniles.... Because the Massachusetts high court’s decision is retroactive, prisoners sentenced as juveniles will “at the appropriate time” be afforded a parole hearing.

Lawyers said such inmates will have to have served at least 15 years before being considered for parole. There are currently 63 inmates in Massachusetts who were sentenced when they were juveniles to life sentences without the possibility of parole for first-degree murder....

The decision drew immediate praise from Governor Deval Patrick, who in September signed legislation that raises the age of juvenile jurisdiction from 17 to 18 and has pushed to reduce the number of teenagers sentenced to life without the possibility of parole. “I applaud today’s Supreme Judicial Court’s ruling,” the governor said in a statement. “Young people, even ones who commit terrible crimes, are developmentally and now constitutionally different from adults. Our SJC has wisely held that, while violent felons will be held accountable, youthful ones deserve every opportunity for rehabilitation.”

Some district attorneys questioned the decision. Essex District Attorney Jonathan W. Blodgett said the ruling will strip away the closure that victims’ families believed they had gained. “I am concerned for families who thought they had finality about their loved ones being murdered,” said Blodgett, who is president of the Massachusetts District Attorneys Association. “Now they have to go through these parole hearings.”

Suffolk District Attorney Daniel F. Conley said in a statement, “We are mindful of the literature on young adults’ brain development, and we already exercise great discretion in charging juveniles with murder. But we’re also keenly aware of the cases at issue here. Some fact patterns demand life imprisonment. Some defendants do not deserve parole. We will argue — as often and as forcefully as necessary — against parole in those cases.”

For years, Massachusetts has had some of the most punitive penalties in the country for juvenile offenders convicted of murder. Two decades ago a series of brutal murders galvanized public demands for harsher penalties. In 1996, legislators responded with a law that mandated that juveniles 14 years and older charged with murder be tried as adults.

Because Massachusetts’ penalties for first-degree murder is mandatory life without parole juveniles found guilty of that crime faced a lifetime of incarceration. As a result, Massachusetts became a leader in the number of youths facing life sentences without parole.

As of last year, the majority of youth with such sentences were concentrated in Massachusetts and four other states: California, Louisiana, Michigan, and Pennsylvania, according to the Campaign for the Fair Sentencing of Youth. “People thought if we have an extreme response, kids would stop doing bad things, and that has not turned out to be true,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit based in Massachusetts.

Carey said the SJC ruling brings Massachusetts back to the middle — she noted that other states that have abolished life without parole for juveniles include Wyoming, Colorado, and Texas. “We’re in some conservative company,” she said.

State legislative leaders said they plan to move quickly to overhaul juvenile sentencing laws that might conflict with Tuesday’s ruling. “The legislation currently pending that require the eradication of such sentences will be fast-tracked to ensure constitutional compliance with the ruling of the SJC,” said Representative Eugene L. O’Flaherty, a Chelsea Democrat who is the House chairman of the Judiciary Committee. Carey said there are currently a number of legislative options, but that any law will have to give meaningful opportunity for parole.

The SJC’s ruling came in the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He has been in prison for more than three decades. The court ruled that he was eligible to be considered for parole immediately....

“I’m happy that Gregory Diatchenko is going to have a meaningful opportunity for release, which he deserves. He’s a living embodiment of what the [Supreme Court] case was all about. He does not deserve to die in prison. He’s not who he was when he was 17,” said Benjamin Keehn, Diatchenko’s attorney. Keehn was on his way to see his client at MCI Norfolk on Tuesday to relay the news. He said his client is 49 years old, two credits shy of a bachelors degree, and has been a Buddhist for over 10 years.

The court also ruled in the separate case of Marquise Brown, who was convicted of first-degree murder in a 2009 slaying. He has not been sentenced. The court ruled that because Brown was 17 at the time of his crime, he cannot be sentenced to life without parole.

The Diatchenko ruling was unanimous. In a concurring opinion, Justices Ralph Gants, Barbara Lenk, and Fernande R.V. Duffly, emphasized that defendants need to have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They urged that decisions on parole be informed by an attention to the “distinctive attributes of youth.

December 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, December 25, 2013

Astute commentary concerning meager crack clemency mercy finally shown by Prez Obama

In part because long-overdue and still meager grants of clemency by President Obama garnered so much MSM attention, I have not blogged much more about the Prez's decision to commute a few crack sentences last week (basics here).  But especially on this holy day, I thought it useful to provide links to a few subsequent piece of commentary that effectively highlight why a lot more use of the clemency power is still needed and justified for mercy to even be even a glimmer of hope for the tens of thousands of non-violent offenders still serving the harsh sentences that the federal criminal justice system too regularly hands out:

December 25, 2013 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting

Festivus-tweets-4As highlighted in this article, "Sen. Rand Paul's (R-Ky.) 'airing of grievances' on Twitter Monday morning actually led to an important side discussion between him and Sen. Cory Booker (D-N.J.) about drug policy — one that could preview a renewed push on reforms next year." Here is more:

It started when Paul, during his homage to "Seinfeld," joked that one of his grievances was with the Twitter-savvy Booker: "One more Festivus grievance about bipartisanship. @CoryBooker doesn't RT me enough."

Booker responded, in kind: "U, me & 'feats of strength:' Senate floor, name the time MT"

Then things got a little more serious: "@CoryBooker how about mandatory minimum sentencing reform instead?"

And then Booker threw in a caveat of his own: "Yes, If u throw in reforming Fed Hemp & Marijuana laws u've got a deal! RT"

Paul reminded him of his stance on reforming marijuana laws: "@CoryBooker I am the Senate author of Hemp bill!"

Booker ended it by declaring an end to the "War on Drugs" in 2014: "I know. U told me last week. Here is to a 2014 where we take on the failed war on drugs RT"

I am pleased that the two Senators who have talked the most about federal sentencing reform have extended the discussion to the Twitterverse. But, as I have said before and will keep saying again, reform talk is cheap and only meaningful if and when advocates can turn this talk into action.

Some recent and older related posts:

December 25, 2013 in Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Controversial Montana judge adds notable writing requirement to max sentence for assault

As reported in this Los Angeles Times article, headlined "Judge sentences man to write 'boys do not hit girls' 5,000 times," a Montana judge who made headlines for a lenient sentence in a rape case is now making news with a novel sentence in an assault case. Here are the details:

The Montana judge who sparked ire by sentencing a former teacher to 30 days in jail for the rape of a 14-year-old girl has ordered a man convicted of punching his girlfriend to write “Boys do not hit girls,” 5,000 times.

District Judge G. Todd Baugh, whose actions in the rape case sparked a national furor and a petition drive to have state officials take disciplinary action, sentenced Pace Anthony Ferguson on Monday to the writing exercise, in addition to six months in jail, for fracturing the woman’s face in three places during an August 2012 argument. Ferguson, 27, also was ordered to pay $3,800 in medical bills that came as a result of the woman's injuries.

Baugh told Ferguson to number the list, 1 through 5,000, sign it and mail it to him by May 23, according to the Billings Gazette. The six months in county jail is the maximum allowed sentence for the misdemeanor assault.

Ferguson made two appearances in court on Monday. After being sentenced by Baugh, Ferguson appeared before District Judge Gregory R. Todd for a disposition hearing. The judge ruled that Ferguson had violated the terms of his release from prison after a 2003 robbery conviction and ordered the man to spend eight years in state prison.

December 25, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, December 23, 2013

Reviewing the state of the death penalty in the Buckeye state

One of many reasons I am so very grateful to be able to teach and research sentencing law and policy at The Ohio State University Moritz College of Law is because Ohio is an especially interesting and dynamic state with respect to its application of the death penalty.  And this local article, headlined "Ohio executes inmates more than most states: State is 4th among 32 with death penalty, while support, availability of drugs wane," provides an effective review of the state of the death penalty in the state these days. Here are excerpts:

Three ... executions occurred in Ohio [in 2013], which ranked fourth in executions behind Texas, Florida and Oklahoma.... Those executed were Frederick Treesh for the 1984 murder of Henry Dupree in Lake County; Steven T. Smith for the 1998 murder of Autumn Carter in Richland County; and Harry Mitts Jr. for the 1994 murders of John Bryant and Sgt. Dennis Glivar in Cuyahoga County. Billy Slagle was set to be executed this year for the 1988 murder of Mari Anne Pope in Cuyahoga County, but he committed suicide just days before the scheduled date.

Mitts was the last prisoner executed before the state’s supply of pentobarbital expired. Ohio’s new policy would use a never-tested combination of midazolam and hydromorphone if pentobarbital became unavailable.

Convicted murderer Ronald Phillips was scheduled to be the first recipient of the drug combination, but Gov. John Kasich delayed Phillips’ execution until July to see whether the inmate could donate his organs to ailing relatives.

Now, Dennis McGuire, who raped and fatally stabbed a pregnant woman, is set to be the first executed with the new combination. He is seeking a reprieve of his execution, which is scheduled for Jan. 16....

The number of inmates on Ohio’s death row, currently 140, has declined every year since 2003, according to December population counts from the state prison system.

A task force assembled by the Ohio Supreme Court and Ohio State Bar Association in 2011 to review Ohio’s use of the death penalty has made several suggestions for changes to state law. Those include eliminating the death penalty for inmates with serious mental illness during the time of the offense and standardizing pay for attorneys defending capital cases....

Several bills introduced this year address the death penalty, yet none has received a committee vote. One introduced by House Democrats would abolish the death penalty, whereas another backed by Senate Democrats would spare anyone sentenced to death because of race. A Cincinnati Republican wants to expand the death penalty to repeat sex offenders....

Ohio has executed 52 inmates since 1999 — all were men and nearly two-thirds were white. The highest number of executions in a year since Ohio reinstated the death penalty in 1981 was eight in 2010, according to the Ohio Department of Rehabilitation and Correction. Ohio has set six executions for 2014, six for 2015 and one for 2016.

Eleven prisoners have been executed during Kasich’s tenure compared with nine in the first three years of predecessor Gov. Ted Strickland, a Democrat, and two in the first three years of Republican Bob Taft’s tenure. Kasich has commuted four death row inmates’ sentences to life in prison without parole; Strickland commuted five death sentences over four years.

None of the states that surround Ohio executed a prisoner in 2013. Michigan and West Virginia are among the 18 states that do not have a death penalty.

December 23, 2013 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Isn't it crazy (and one reason for much dysfunction) that California does not have some kind of sentencing commission?

Cal prisonI have written a law review article emphasizing that the mere existence of a sentencing commission within a jurisdiction does not magically solve or even necessarily improve the development of sentencing and corrections laws and policies in that jurisdiction.  Indeed, some might reasonably claim that in jurisdictions that have other agencies collecting system-wide data, a sentencing commission can become a costly luxury that may at times do more harm than good.

That all said, and as the question in the title of this post highlights, it strikes me as truly nuts that California has never created some kind of sentencing commission to assemble at least basic state-wide sentencing information.  Indeed, given the huge mess that has long been California's massive sentencing and corrections system, and given the crisis-mode reforms and regulations imposed by judges and governors for decades now, I have to think any kind of sentencing commission in California would be able to improve matters in some way at least by being the go-to location for information about what the heck is even going on in the state on a range of sentencing and corrections issues.

These matters come to mind in reaction to this notable new article in the Sacramento Bee headlined "Sentencing commission, suggested in Sacramento, faces long odds." Here are excerpts:

Key California lawmakers this summer suggested that a commission to review and overhaul criminal sentences not only could bring coherence to a disjointed system but also perhaps ease chronic prison overcrowding in the long term. But the idea now appears stalled, despite the incentive of federal litigation that could force Gov. Jerry Brown to release as many as 10,000 inmates next spring.

Lawmakers chastened by a history of unsuccessful sentencing commission bills hold out little hope that this time could be different. “These issues are hard,” Sen. President Pro Tem Darrell Steinberg, D-Sacramento, said in an interview last week. “They’re hard to bite off politically.”

The notion of a panel to overhaul California’s penal code has percolated for decades but eluded proponents time and again. Supporters argue that a steady accumulation of different regulations, layered on top of one another over time, has led to a labyrinth of sentencing guidelines. “There is a lot of disproportionate punishment in our penal code, and that’s because not uncommonly a horrible crime may be committed in someone’s district and so the response is legislatively to get tougher,” said Sen. Mark Leno, D-San Francisco. “These are emotional issues,” he added, “and to have politics infused in all of our decision-making does not create the most sound public policy.”

State sentencing commissions are typically independent bodies, appointed by officials, that study a state’s galaxy of sentencing laws and condense them into a comprehensive framework. They issue guidelines that would increase or decrease sentences for various categories of crimes. That troubles some law enforcement leaders who see the potential for weakened sentences. And it rattles lawmakers wary about constituents – or future electoral opponents – who could hold them responsible for changes that emanated from an unelected body.

“No legislative body wants to give up power,” said Rep. Karen Bass, D-Los Angeles, a former Assembly speaker who pursued a sentencing commission during her time in the Legislature.

Historically, the state’s law enforcement community has been hostile to allowing appointed entities to dictate consequences for crimes.  District attorneys, sheriffs and police chiefs have opposed past efforts, raising concerns about who would sit on panels with expansive authority to reshape criminal justice.  “In California, the only times sentencing commissions come up, it has been code for sentence reductions,” said Sacramento County District Attorney Jan Scully.

But the idea resurfaced this summer when Gov. Jerry Brown, seeking to satisfy a federal order to reduce California’s prison population without resorting to more early releases, proposed spending an additional $315 million to provide more cells.  Steinberg broke with the governor, rallying Senate Democrats behind an alternate plan that questioned expanded capacity.

Among other provisions, Steinberg’s blueprint included a detailed plan for immediately creating an 18-member sentencing commission that could provide recommendations by the end of 2014. A letter to Brown argued that “short-term fixes provide no sustainable remedy.” Steinberg’s letter said the panel would make recommendations aimed at “long-term prison capacity, staying within the (prison capacity) cap, including changes in criminal sentencing and evidence-based programming for criminal offenders.” He included private poll results that showed nearly three-fourths of Californians supported a panel “to streamline California’s criminal statutes with the goal of safely reducing prison costs and maximizing public safety.”

But by summer’s end, the governor got his cash infusion. The final bill also created a special corrections policy committee tasked with broadly examining criminal justice in California. Last week, Steinberg called sentencing reform “a key piece” of rethinking the state’s criminal justice system. But he expressed doubt that substantial changes would materialize in the coming legislative session....

This session, Leno carried his second consecutive bill easing penalties for simple drug possession. Brown vetoed it. Part of Leno’s argument emphasized the state’s uneven sentencing statutes, which make possession of cocaine a felony but allow possession of Ecstasy or methamphetamine to be charged as misdemeanors. Leno cited such inconsistencies in arguing that the sentencing commission is “an idea whose time has come,” adding that the state’s struggles to reduce its prison population “only underscores the need for it.”...

Past sentencing commission efforts have self-destructed because the panel’s recommendations, though subject to legislative approval, would have carried the force of law, argued Sen. Loni Hancock, D-Berkeley. By contrast, Steinberg proposed a purely advisory body.

After seeing previous resentencing campaigns stymied, Hancock said an advisory commission may be the only tenable approach. Even if a commission’s recommendations remain just that, Hancock said she would push to see them implemented. “It’s just so important to cast some rational light on what goes on with our sentencing that I would be happy to see one that makes discretionary recommendations,” Hancock said.

I am pleased to hear there is talk of making a sentencing commission advisory in California because that should be one key to making such an entity a viable reality. But, were I a lawmaker in California, my proposal for a CA sentencing commission would be for the entire voting body of any such commission to be staffed only with district attorneys, sheriffs and police chiefs and for these folks on the CA commission to always have a majority of voting members. In that way, it should and could be clear that having a CA sentencing commission would not be code for sentence reductions but rather just a means for seeking greater sentencing rationality and information as defined by those very state actors elected and most responsible to the voters for seeking to ensure public safety and sensible use of tax resources to that end.

December 23, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, December 19, 2013

Clemency christmas miracle?: Prez Obama communiting 8 pre-FSA crack sentences and granting 13 pardons

ALittleChristmasMiracleAs reported in this new article from the New York Times, "President Obama, expanding his push to curtail severe penalties for drug offenses, is expected on Thursday to commute the sentences of eight federal inmates who were convicted of crack cocaine offenses. Each inmate has been imprisoned for at least 15 years, and six were sentenced to life in prison."  Here is more about this interesting and exciting news:

It would be the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies. Most of the eight would be released in 120 days.

In a statement prepared for release when the commutations are announced, Mr. Obama said that each of the eight men and women had been sentenced under what is now recognized as an “unfair system,” including under a 100-to-1 sentencing disparity between crack and powder cocaine offenses that was significantly reduced by the Fair Sentencing Act of 2011.

“If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society,” Mr. Obama said. “Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”

The recipients include several high-profile inmates who have received news media attention as examples of the effects of earlier tough-on-crime drug sentencing policies, in which the quantities of crack involved sometimes resulted in severe punishments. Many of them were young at the time of their offense and were not accused of violence.

Clarence Aaron of Mobile, Ala., for example, was sentenced to three life terms in prison for his role in a 1993 drug deal, when he was 22. Mr. Aaron’s case has been taken up by congressional critics of draconian sentencing and by civil rights groups, and has received significant media attention. Last year, the Justice Department’s inspector general issued a report criticizing the department’s pardon office for mishandling his clemency petition.

Margaret Love, a former Justice Department pardon lawyer who represents Mr. Aaron, said she received a call informing her of the decision on Thursday morning and called her client, who along with his family was “very grateful.”

“He was absolutely overcome,” she said. “Actually, I was, too. He was in tears. This has been a long haul for him, 20 years. He just was speechless, and it’s very exciting.”

Mr. Obama, who has made relatively little use of his constitutional clemency powers to forgive offenses or reduce sentences, is also expected to pardon 13 people who completed their sentences long ago. Those cases involved mostly minor offenses that resulted in little or no prison time, in line with previous pardons he has issued.

But the eight commutations opened a major new front in the administration’s criminal justice policy intended to curb soaring taxpayer spending on prisons and to help correct what the administration has portrayed as unfairness in the justice system. Recipients also include Reynolds Wintersmith, of Rockford, Ill., who was sentenced in 1994 to life in prison for dealing crack when he was 17, and Stephanie George of Pensacola, Fla., who received a life sentence in 1997, when she was 27, for hiding a boyfriend’s stash of crack in a box in her house. In both cases, the sentencing judges criticized the mandatory sentences they were required to impose by federal law at the time, calling them unjust.

In December 2012, The New York Times published an article about Ms. George’s case and the larger rethinking of the social and economic costs of long prison terms for nonviolent offenders. Mr. Obama mentioned the article in an interview with Time magazine later that day and said he was considering asking officials about ways to do things “smarter.”

Around that time, a senior White House official said, Mr. Obama directed Kathryn Ruemmler, his White House counsel, to ask the Justice Department to examine pending clemency petitions to assess whether there were any in which current inmates serving long sentences would have benefited from subsequent changes to sentencing laws and policy. The deputy attorney general, James M. Cole, returned the eight cases with positive recommendations from the department about six weeks ago, the official said....

Legislation pending in Congress, including a bill co-sponsored by Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, would make the Fair Sentencing Act retroactive for some offenders, and it would build into the system a process for inmates to apply to a judge for case-by-case review of whether a reduced sentence would be appropriate. The Obama administration supports that bill, the White House said, as a more orderly and regular way to ensure individualized analysis in addressing the broader inmate population.

According to the group Families Against Mandatory Minimums, about 8,800 federal inmates sentenced for crack offenses before the Fair Sentencing Act would be eligible to apply for a reduced sentence were the bill to become law. “Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness,” Mr. Obama said. “But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.”

I am quite pleased Prez Obama is finally, finally, finally using his constitutional clemency powers in a truly consequential and meaningful way, and I am especially pleased that there are now eight more defendants (and families) who get some relief from the unfair 100-1 pre-FSA crack sentences that nobody ever seeks to defend substantively. However, the numbers reported above highlight that for every new bit of post-FSA fairness achieved by these commutations, a thousand other defendants (and families) must continue to live with the consequences of a reform that has been interpreted only to prevent future injustices and not fix past ones.

More broadly, though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.

Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."

December 19, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (13) | TrackBack

Death Penalty Information Center releases annual report on capital punishment developments in 2013

This morning, the Death Penalty Information Center released its annual report on death penalty developments under the sparkling title, "The Death Penalty in 2013: Year End Report." The eight-page report is available at this link, and here are its list of "key findings" followed by the first part of the report's conclusion:

The number of executions, the size of death row, and the number of death penalty states all declined in 2013. Death sentences were near their lowest level since the reinstatement of the death penalty in 1976. Even many southern states, including South Carolina, Virginia, Tennessee, and Louisiana, had no death sentences in 2013. With Maryland’s repeal of capital punishment, the number of states without the death penalty grew to 18. Public support for the death penalty is at a 40-year low.

It is likely these trends will continue as more state legislatures consider repealing what has become a very expensive and unpredictable punishment. Nevertheless, over 3,000 people remain on death row, and some states like Florida and North Carolina have taken measures to expand the use of the death penalty.

The problems of mistakes, unfairness, and even the method of execution have exasperated many supporters of the death penalty, contributing to less reliance on capital punishment. Death sentences in Texas have declined by almost 80% since 1999. When examined on a county basis, only 2% of U.S. counties are responsible for the majority of executions and prisoners on death row. Because of restrictions by drug manufacturers, states have been forced to try new combinations of lethal drugs, some obtained from questionable sources, to carry out executions.

Though the DPIC's work is always impacted by its anti-death-penalty perspectives, I am always impressed by and grateful for the various ways the group collected and disseminates important information about the application of the death penalty throughout the United States.

December 19, 2013 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (34) | TrackBack

Wednesday, December 18, 2013

Task force recommends broad changes to sentencing and corrections in Mississippi

As reported in this local article, headlined "Sweeping prison reforms suggested in Mississippi: More judicial discretion among proposals," there is now big talk about big reforms in The Magnolia State. Here are the details:

A criminal justice task force on Tuesday recommended sweeping reforms to reduce Mississippi’s soaring prison population and costs, standardize sentences and reduce recidivism. “This is the first time in my career — 32 years — that we have taken a comprehensive look at corrections in this state,” said Mississippi Department of Corrections Commissioner Chris Epps. “… We all know the cost of doing nothing.”

The recommendations include providing more discretion for judges to impose alternatives to prison and creating “true minimums” on when violent and nonviolent offenders are eligible for release.  They also call for defining what constitutes violent crime — something officials said isn’t clear in state law.  Proposals also include increasing the threshold from $500 to $1,000 for felony theft and lowering drug sentences for possession of small amounts while cracking down on large drug dealers.

Epps headed the bipartisan, 21-member task force of lawmakers, judges, prosecutors, law enforcement and defense attorneys.  The group, after working for seven months with assistance from the Pew Charitable Trust’s Public Safety Performance Project, developed recommendations for the 2014 Legislature.

Gov. Phil Bryant, Lt. Gov. Tate Reeves, House Speaker pro tem Greg Snowden and others voiced their support for the proposal after the task force adopted it. The task force was created by a bill Snowden authored this year.  Bryant said the reforms “put victims first,” protect public safety and provide “clarity of sentencing.”  Reeves praised the recommendations as “evidence-based, data-driven, fiscally sound criminal justice reforms.”

While the nationwide trend has been lower prison population, Mississippi’s has skyrocketed since it passed some of the toughest “truth in sentencing” laws in the 1990s. The state now has more than 22,600 prisoners and the second-highest incarceration rate in the nation.  Prison costs have risen from $276 million in 2003 to $361 million, with unchecked growth expected to result in 2,000 more inmates and cost taxpayers another $266 million over the next 10 years.

The state has attempted unsuccessfully to reduce prison costs with a patchwork of release policies that created confusion in sentencing and a disconnect between the judges/prosecutors and corrections.  Uncertainty about how long convicts would serve helped push sentence lengths by 28 percent the last decade....

State Sen. Willie Simmons, D-Cleveland, said the proposed reforms are “historical,” and “create a better system as opposed to a build it (prisons) and they will come approach.”

December 18, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack