Monday, September 23, 2013

Intriguing sparring over federal capital recommendation procedure in Boston bombing case

This AP article, headlined "Lawyers ask for more time to submit arguments against death penalty in Boston Marathon bombing," reports on an interesting tussle over procedure in a hearing today concerning one of the highest-profile on-going federal prosecutions. Here are the basics:

Federal authorities plan to recommend whether to seek the death penalty against Boston Marathon bombing suspect Dzhokhar Tsarnaev by the end of next month and expect U.S. Attorney General Eric Holder to decide early next year whether to pursue it, prosecutors said Monday.

But Tsarnaev’s lawyers objected to the timetable and asked a judge for more time to make their case against the death penalty. During a status conference in U.S. District Court, Tsarnaev’s lawyers said they have not received key evidence from prosecutors yet — including interviews or grand jury testimony of Tsarnaev’s family — and have not had enough time to submit a proposal arguing that Tsarnaev does not deserve the death penalty.

Assistant U.S. Attorney William Weinreb argued that the defense has had almost six months since the bombing. He said federal prosecutors plan to make a recommendation to Holder by Oct. 31. He will have the ultimate say on whether to seek the death penalty; his decision is expected by Jan. 31, Weinreb said....

Weinreb said prosecutors originally asked Tsarnaev’s lawyers to submit their arguments by Aug. 23 but agreed to extend that deadline to October at their request. He said prosecutors are not required by law to wait for input from the defense before submitting their recommendation to Holder. “We think that six months is a reasonable time,” he said.

But Judy Clarke, one of Tsarnaev’s lawyers, said “it’s a matter of fairness” and asked the judge to delay the date for their submission at least until they get the evidence they are seeking. “It’s pretty stunning to say they can make a decision based on what they know without some defense input,” said Clarke, a San Diego lawyer who has won life sentences instead of the death penalty for high-profile clients, including the Unabomber and the gunman in the rampage that wounded former U.S. Rep. Gabrielle Giffords of Arizona.

Judge George O’Toole Jr. took no immediate action on the request but agreed to allow the defense to submit arguments on whether the court has the authority to reset any deadlines.

Some recent prior posts:

September 23, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Sunday, September 22, 2013

Will SCOTUS take up Warren Hill's (final?) plea to avoid a Georgia execution?

The question in the title of this post is prompted by this new editorial commentary by Jesse Wegman for the New York Times. The piece is headlined "A Rare Plea to the Court," and here are excerpts:

The Supreme Court’s next term is full of big-ticket issues — from campaign finance to affirmative action to the separation of powers — but a largely overlooked death-penalty appeal the court hasn’t agreed to hear yet could clarify how broadly it views its ultimate power to stop unjust executions.

In 1990 Warren Lee Hill beat a man to death with a nail-studded board, and the state of Georgia sentenced him to die.  Mr. Hill is intellectually disabled, according to all seven mental health experts who have examined him. The Supreme Court banned the execution of intellectually disabled people in 2002, but Mr. Hill remains on death row, trapped by a welter of state and federal laws that prevent him from proving his condition in court....

One hurdle for Mr. Hill is that while four of the seven mental health experts originally found that he met the criteria for mild mental retardation, three did not.  Georgia requires intellectual disability to be proved beyond a reasonable doubt — an arguably unconstitutional standard no other state uses.  Presumably it is possible to meet this standard.  Either way, Georgia courts said a four-three split was not enough.  But last year the three experts against Mr. Hill recanted. Seven to zero sounds like a winner, but it didn’t matter, a federal appeals court said, since Mr. Hill was blocked by another law that strictly limits multiple appeals on the same claim.

So Mr. Hill filed a direct appeal to the Supreme Court — a rare request the court even more rarely grants — asking it to order the lower courts to weigh the new evidence.  On Sept. 30, the court will consider whether to hear Mr. Hill’s petition.  It has been reluctant in the past to exercise this power, but this case is exceptional.  At stake is not only a man’s life, but the court’s own authority....

Mr. Hill’s case is as simple as it is unusual: there is compelling evidence that he is categorically ineligible to be executed, and he has nowhere else to turn.

September 22, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

Saturday, September 21, 2013

"(Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform"

The title of this post is the title of this (quite timely) new article now available via SSRN and authored by R. Michael Cassidy. Among the reasons this article is notable is because its author was a state prosecutur for nearly a decade. Here is the abstract:

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends.  While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena.  The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan “administer of justice” in her legislative and public advocacy activities.

Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor’s administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses.  Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts.  The author distinguishes this argument against mandatory minimum penalties from the so-called “Smart on Crime” movement, by grounding a prosecutor’s duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations.

Even with robust political support from some of this nation’s most conscientious prosecutors, state legislatures are unlikely to repeal or cut back on all mandatory minimum sentences.  Some mandatory prison terms ― for crimes such as murder, repeat offense OUI, and aggravated sexual offenses — will likely stay on the books notwithstanding the advocacy recommended above.  A second question the author addresses in this article is how an ethical prosecutor should make plea bargaining decisions in the face of mandatory minimum prison terms retained by the legislature.  While there has been substantial legal scholarship to date that has decried the manner in which mandatory minimum penalties have transferred sentencing discretion from judges to prosecutors, beyond that descriptive lament there has been very little attention paid to how exactly prosecutorial discretion might be more meaningfully constrained through internal self-regulation. Prosecutors can mitigate many of the harsh and unjust consequences of mandatory minimum sentences by instituting and publishing clear office policies governing when line prosecutors may dismiss or reduce charges that carry them.  The author proposes specific guidelines that state prosecutors should adopt to ensure a consistent and even-handed application of mandatory minimum penalties, so that line prosecutors do not abuse the substantial discretion that has been afforded them in the plea bargaining process.

Based on this abstract, I surmise that the author would assert not merely that Attorney General Holder's recent policy changes concerning charging practices in drug cases was a good idea, but that they were ethically required. I hope to see discussion of prosecutorial ethics among prosecutors in the comments to this post.

Some recent and older related posts:

September 21, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

What are enduring lessons from "The Death and Resurrection of Capital Punishment in America"?

9780393239584_custom-f8e9cb67c091cd75f5a45cc9d90487109f9c5bb7-s2-c85The question in the title of this post is drawn from the title of Evan Mandery's notable new book titled "A Wild Justice: The Death and Resurrection of Capital Punishment in America."  Here is the description of the book from the publisher's website:

Drawing on never-before-published original source detail, the epic story of two of the most consequential, and largely forgotten, moments in Supreme Court history.

For two hundred years, the constitutionality of capital punishment had been axiomatic. But in 1962, Justice Arthur Goldberg and his clerk Alan Dershowitz dared to suggest otherwise, launching an underfunded band of civil rights attorneys on a quixotic crusade.  In 1972, in a most unlikely victory, the Supreme Court struck down Georgia’s death penalty law in Furman v. Georgia.  Though the decision had sharply divided the justices, nearly everyone, including the justices themselves, believed Furman would mean the end of executions in America.

Instead, states responded with a swift and decisive showing of support for capital punishment.  As anxiety about crime rose and public approval of the Supreme Court declined, the stage was set in 1976 for Gregg v. Georgia, in which the Court dramatically reversed direction.

A Wild Justice is an extraordinary behind-the-scenes look at the Court, the justices, and the political complexities of one of the most racially charged and morally vexing issues of our time.

I suspect I will not be able to find time to read this book until the end of classes this semester, but this recent NPR's Fresh Air interview of the author provides an effective and efficient glimpse into the stories therein. Here is how NPR sets up the interview:

In the mid-1970s, Arkansas' electric chair was being used by the prison barber to cut hair, and the execution chamber in New Hampshire was being used to store vegetables. That's because in 1972, the U.S. Supreme Court shocked the nation by striking down Georgia's death penalty law, effectively ending executions in the United States. But the decision provoked a strong backlash among those who favored the death penalty, and within four years the high court reversed course and issued a set of rulings that would permit the resumption of executions.

Evan Mandery, a professor at the John Jay College of Criminal Justice and a former capital defense attorney, has written a new account of the tumultuous legal and political battles over the death penalty. Mandery is sympathetic to those who tried to outlaw capital punishment, but his account focuses on attorneys for both sides in the battle, as well as the views and deliberations of the justices who decided the cases. His book is called A Wild Justice: The Death and Resurrection of Capital Punishment in America.

He tells Fresh Air's Dave Davies about how the Supreme Court decisions of the '70s changed capital punishment.

September 21, 2013 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, September 20, 2013

New report assails "lockup quotas" in private prison industry

Criminal-Lockup-Quota-InfographicThe organization In the Public Interest (ITPI), which bills itself as "a comprehensive resource center on privatization and responsible contracting," has just released this new report on the private prison industry titled "How Lockup Quotas and 'Low-Crime Taxes' Guarantee Profits Guarantee Profits."   Here is 17-page report's introduction:

In 2012, Corrections Corporation of America (CCA), the largest for-profit private prison company in the country, sent a letter to 48 state governors offering to buy their public prisons. CCA offered to buy and operate a state’s prison in exchange for a 20-year contract, which would include a 90 percent occupancy rate guarantee for the entire term. Essentially, the state would have to guarantee that its prison would be 90 percent filled for the next 20 years (a quota), or pay the company for unused prison beds if the number of inmates dipped below 90 percent capacity at any point during the contract term (a “low-crime tax” that essentially penalizes taxpayers when prison incarceration rates fall). Fortunately, no state took CCA up on its outrageous offer. But many private prison companies have been successful at inserting occupancy guarantee provisions into prison privatization contracts, requiring states to maintain high occupancy levels in their private prisons.

For example, three privately-run prisons in Arizona are governed by contracts that contain 100 percent inmate quotas.  The state of Arizona is contractually obligated to keep these prisons filled to 100 percent capacity, or pay the private company for any unused beds.

These contract clauses incentivize keeping prison beds filled, which runs counter to many states’ public policy goals of reducing the prison population and increasing efforts for inmate rehabilitation.  When policymakers received the 2012 CCA letter, some worried the terms of CCA’s offer would encourage criminal justice officials to seek harsher sentences to maintain the occupancy rates required by a contract.  Policy decisions should be based on creating and maintaining a just criminal justice system that protects the public interest, not ensuring corporate profits.

Bed guarantee provisions are also costly for state and local governments.  As examples in the report show, these clauses can force corrections departments to pay thousands, sometimes millions, for unused beds — a “low-crime tax” that penalizes taxpayers when they achieve what should be a desired goal of lower incarceration rates.  The private prison industry often claims that prison privatization saves states money.  Numerous studies and audits have shown these claims of cost savings to be illusory, and bed occupancy requirements are one way that private prison companies lock in inflated costs after the contract is signed.

This report will discuss the use of prison bed occupancy guarantee clauses in prison privatization contracts and explore how bed occupancy guarantees undermine criminal justice policy and democratic, accountable government. Section 1 explains the for-profit private prison industry’s reliance on high prison populations, and how these occupancy guarantee pr ovisions directly benefit its bottom line. Section 2 discusses the prevalence of bed guarantee clauses, drawing on a set of contracts that ITPI obtained through state open records requests. Section 3 describes how occupancy guarantees have harmed states, focusing on the experiences of Arizona, Colorado, and Ohio — three states that have agreed to these provisions to detrimental consequences. Lastly, Section 4 will discuss our recommendation that governments can and should reject prison occupancy guarantees.

Some related posts: 

September 20, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, September 19, 2013

"Holder directs attorneys to seek reduced sentences in pending drug cases"

The title of this post is the headline of this Washington Post report on the latest announcement from AG Eric Holder concerning federal drug prosecution policies. Here is how the article starts:

Attorney General Eric H. Holder Jr. said Thursday that he has directed U.S. attorneys across the country to apply new sentencing guidelines to ongoing drug cases so that low-level, nonviolent offenders will not face severe mandatory sentences.

The new guidelines will be applied to suspects who have been charged but not yet put on trial, as well as to individuals who have been convicted but not yet sentenced. The directive does not affect offenders already sentenced or serving time in prison.

Holder announced last month that low-level, nonviolent drug offenders would no longer be charged with offenses that impose severe mandatory sentences. The new directive marked an expansion of that effort.

“I am pleased to announce today that the department has issued new guidance to apply our updated charging policy not only to new matters, but also to pending cases where the defendant was charged before the policy was issued but is still awaiting adjudication of guilt,” Holder said in a speech to the Congressional Black Caucus.

AG Holder's full speech to the Congressional Black Caucus Foundation Criminal Justice Issues Forum is now available at this link, and here are some additional excerpts:

America’s criminal justice system is in need of targeted reform. Throughout this country, too many Americans are trapped – and too many communities are weakened – by a vicious cycle of poverty, criminality, and incarceration. Too many people go to too many prisons for far too long – and for no truly good law enforcement reason. The U.S. prison population has grown at an astonishing rate over the last three decades – by almost 800 percent since 1980, despite the fact that America’s overall population has increased by only about a third. As we speak, more than 219,000 federal inmates are currently behind bars. Almost half are serving time for drug-related crimes. And many have substance use disorders.

Outside of the federal system, an additional nine to 10 million people cycle through local jails each year. And roughly 40 percent of former federal prisoners – along with more than 60 percent of former state prisoners – are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers.

It’s clear, in a broad sense, that 20th-century criminal justice solutions are just not adequate to address the 21st century challenges we face. There’s no question that incarceration will always have a role to play in our criminal justice system. But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes significant human and moral costs – as well as a tremendous economic burden, totaling $80 billion in 2010 alone.

Especially in times of widespread budgetary difficulties and federal sequestration – when leaders at every level of government have been asked to do more with less – we must resolve, as a country and as a people, to do much better....

It’s time – in fact, it’s well past time – to take a fundamentally new approach. And today, I am proud to join you in working to ensure that – in this area and many others – the scales of justice find a more appropriate balance....

In addition – in recent months – the Justice Department also has updated its framework for considering compassionate release for some inmates who face extraordinary or compelling circumstances, and who pose no threat to the public. Of course, as our primary responsibility, we must ensure public safety. But considering the applications of certain people with convictions for nonviolent offenses – such as individuals seeking release on medical grounds, or elderly inmates who did not commit violent crimes and have served significant portions of their sentences – is the right thing to do. It is the smart thing to do. And it will allow the Bureau of Prisons to evaluate compassionate release applications through a careful review process before each case comes before a judge – who will make a final determination on whether release is warranted.

September 19, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Notable new empirical research exploring legislators, prosecutors and "Expressive Enforcement"

A helpful reader altered and recommended to me this notable new article on SSRN authored by Avlana Eisenberg and titled "Expressive Enforcement." Here is the abstract:

Laws send messages, some of which may be heard at the moment of enactment. However, much of a law’s expressive impact is bound up in its enforcement.  Although scholars have extensively debated the wisdom of expressive legislation, their discussions have focused largely on enactment-related messaging, rather than on expressive enforcement.  This Article uses hate crime laws — the paradigmatic example of expressive legislation — as a case study to challenge conventional understandings of the messaging function of lawmaking.  The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message of hate crime laws?

To answer that question, the Article presents original data from the first multi-state qualitative empirical study of hate crime prosecution.  The findings help to explain a paradox: in archetypal hate crime cases involving animus directed at a victim’s core identity features — such as race or sexual orientation — prosecutors may decline to include hate crime charges because of statutory incentives, difficulty of proving motive, and concerns about jury reaction.  Conversely, hate crime enforcement may be appealing to prosecutors in precisely those cases that are least likely to further the expressive purposes of hate crime laws.  After exploring this mismatch, the Article identifies some areas where there may be irreconcilable tensions between the expressive goals of legislators and the incentives of prosecutors and, in other areas, offers recommendations to unify legislative goals with expressive enforcement.

September 19, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Linda Greenhouse reflects on changing crime culture changing SCOTUS jurisprudence

Winds-of-changeLinda Greenhouse's new commentary piece at the New York Times "Opinionator" blog is focused on crime and punishment issues. The lengthy piece, headlined "Winds of Change," is worth a full read and here are excerpts:

Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine.  The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record.  The police found the drugs when they stopped him for running a red light.  Since simple possession was enough to trigger Michigan’s mandatory life-without-parole sentence, the prosecution didn’t even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine.

In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) — Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter — voted with the 5-to-4 majority.

In “Five Chiefs,” the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented.  Those three justices were all relatively new to the court at the time, he wrote.  The justices they had replaced — Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. — were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence.  It may be, he added, that “the views of individual justices become more civilized after 20 years of service on the court.”

That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more.  He said he still thought about the case “a lot.”  He was “quite sure” that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court.  Nonetheless, he added, “the precedent is still there, and it’s really a very unfortunate case.”

I’ve been thinking a lot myself about the Harmelin decision in light of recent events.  First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses.  That was followed by the announcement that the federal government wouldn’t sue to block state laws that have legalized marijuana for medical or recreational use.  Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss....

Something is clearly in the wind.  I’ve also been thinking about the New York City mayoral primary.  It’s impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration’s law-enforcement policies, particularly the administration’s embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin’s ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an “ideologically driven” judicial activist.

Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction.  Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign.  An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum — a fascinating development.  People so often separated by race and class, seemed to unite around the conclusion that enough was enough.

The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular.  The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund....

In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.”  Can that prediction apply not only to individual members of the court, but also to the court as a whole?  As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.

The recent SCOTUS Eighth Amendment rulings in Graham and Miller reflect, in my view, the impact of these "winds of change." But it remains to see whether and when these winds will blow hard enough to knock over the problematic precedent set by the Harmelin decision 22 years ago.

September 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

"Rethinking the Timing of Capital Clemency"

The title of this post is the title of this notable new paper by Adam Gershowitz which now is available via SSRN.  Here is the abstract:

This article reviews every capital clemency over the last four decades.  It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals — years or even decades before the habeas process was concluded.  Yet, when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare.

Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation.  This article documents nearly 300 years of wasted habeas corpus review.  Additionally, last-minute commutations harm the victims’ families by delaying closure for years.  And placing clemency at the very end of the process creates an information cascade that makes it harder for governors to grant clemency in meritorious cases.  This article therefore argues for a threshold clemency determination in capital cases at the conclusion of direct review, before any state or federal habeas litigation has begun.

September 19, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, September 18, 2013

US Attorney defends fraud guidelines while others urge reform in USSC event

Today notable events in the federal sentencing reform arena were not confined only to today's U.S. Senate Judiciary Committee hearing on federal mandatory minimums (discussed here and here).  Also starting today was a two-day event in NYC in which the U.S. Sentencing Commission is discussing potential reform to the federal fraud guidelines.  This Reuters report, headlined "U.S. prosecutor cautions against white-collar sentencing revamp," provides a few notable highlights from the events in NYC:

The U.S. Justice Department opposes a wholesale revamping of white-collar criminal sentences that defense lawyers and some judges have urged, a top federal prosecutor said on Wednesday.

But Melinda Haag, the U.S. attorney in San Francisco, said the department was open to limited changes in white-collar sentencing that could reduce sentences in some fraud cases. The comments came as the U.S. Sentencing Commission is weighing revisions to advisory sentencing guidelines used by judges for securities, healthcare, mortgage and other fraud offenses.

Defense lawyers, the American Bar Association, some judges and others have criticized the guidelines, saying they emphasize financial losses caused by crime over all other factors, sometimes resulting in sentences that are too severe.

Haag, speaking at a symposium on white-collar sentencing in New York, said the Justice Department believes the current guidelines "result in tough but fair sentences in the vast majority of the cases." But she suggested that the department may be open to some changes, saying certain categories of cases, such as securities cases involving frauds on the market, warrant "careful study" by the commission. "Despite our questions and concerns, however, we do agree that in some cases, loss may overstate the seriousness of the offense," Haag said.

A growing number of judges have imposed terms less than prescribed by the guidelines, which became advisory rather than mandatory following a U.S. Supreme Court decision in 2005.

U.S. District Judge Loretta Preska, sitting on a panel with Haag, cited the case of Joseph Collins, a former partner at the law firm Mayer Brown, who was convicted for his role in a fraud at commodities broker Refco Inc. With losses calculated at $2.4 billion, Preska said under the guidelines Collins faced life in prison. She instead sentenced him in July to a year in prison, citing his community service and the fact he didn't financially benefit from the scheme. "This was absurd, absolutely absurd," she said.

Haag said the Justice Department recognized there "may be issues in some high-loss cases." But she said the department didn't believe a wholesale change was needed to the fraud sentencing guidelines or the loss table used to calculate sentences. She said it was a relatively small number of cases that had caused judicial concern. Citing commission statistics, she said 54 percent of economic crime cases involve less than $120,000 in losses and 83 percent involve less than $1 million.

Haag also argued that in some big cases involving investment fraud like Ponzi schemes, judges "don't seem to hesitate in imposing lengthy prison terms, noting the devastation these fraud schemes wreak on other people and the greed that motivated most of the defendants before them."...

In the last 18 months, federal prosecutors have handled investment fraud cases involving 800 defendants and more than $20 billion, she said. For the FBI, investment fraud is now 60 percent of its white-collar case load, she said.

Nonetheless, she said "certain categories of cases warrant careful study by the commission and potentially narrowly tailored amendments" to the fraud sentencing guidelines. Among the suggestions she gave would be for the Sentencing Commission to review how the guidelines treat loss in certain securities fraud cases where a drop in stock value by a few dollars per share can turn into a billion dollar loss.

September 18, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums

The Senate Committee on the Judiciary hearing entitled “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences” is now underway as I write up this post.  A live webcast can be accessed via this Senate webpage, which is also where the written testimony of all the witnesses are now linked.   Not surprisingly, the only written statement supporting the mandatory minimum status quo from among the scheduled witnesses is made by Scott Burns, the Executive Director of the National District Attorneys Association (NDAA), and here is the heart of his written presentation:

Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences. While Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge. In addition, mandatory sentences have been extremely helpful to state and local prosecutors as leverage to secure cooperation from defendants and witnesses and solve other crimes or, in a drug distribution case, “move up the chain” and prosecute those at higher levels of sophisticated trafficking organizations; it is a tool that has been used sparingly but effectively by state and local prosecutors.

I submit that prosecutors across the country collectively shook their heads when General Holder directed his United States Attorneys to no longer prosecute or send to prison those who are first time offenders or those who have committed low level drug offenses. US Attorneys have never, to my knowledge, prosecuted low level offenses and, unless it is a serious case and often must involve a firearm, first time offenders do not go to prison.  The prosecutors I know in America look at every available alternative before recommending that a person be sentenced to prison and, as such, are incensed by General Holder’s repetitive statements that America’s prisons are full of low-level drug offenders and non-violent offenders and first time offenders. That is a myth that must be dispelled if we are going to work together to try and make a great criminal justice system even better.  Unless it is a murder or rape or violent offense, it is difficult to be sentenced to prison in state courts across America.  The prosecutors I know look at probation, treatment programs, diversion, plea in abeyance, Drug Courts, supervised probation and work with Judges and defense counsel to look at every alternative but prison.  It is only in those instances where someone has committed a terribly serious crime or, after repeated attempts to stop the person from reoffending — sometimes literally six and seven violations of probation — that an offender is sentenced to prison. And the reality is, together with other tools like mandatory minimum sentences, it has worked. So for anyone to say that our prisons are full of low-level, first time, minor drug offenders simply could not be further from the truth.

Prosecutors will tell you that it is a very small percentage of offenders that commit the vast majority of crimes, people who insist no matter what we do to change their behavior, commit crime after crime.  Is it not appropriate, after all attempts have failed, or in the event the person commits a very serious offense, to sentence them to longer prison terms which has inarguably resulted in lower crime rates and safer communities?

A prosecutor told me the other day, after reading General Holder’s statements, “to me, I see this as we are three touchdowns ahead and many are now saying we should take out some of our best players — and mandatory minimum sentences are one of our best players”.  Why now, with crime at record lows are sweeping changes being suggested? Why now, as we are getting even smarter on crime with programs like Drug Courts, 24/7 and Project Hope as carrots would we take away one of the most effective sticks?

NDAA continues to be willing to work with Congress and the Department of Justice, as we did when we worked together to address the crack/powder sentencing disparity with the Fair Sentencing Act, and on several other Congressional initiatives that have been proposed over the years; but if this is solely about money, that the number of people we incarcerated in America is too expensive, then I know I speak for Police Chiefs, Sheriffs, law enforcement officers at every level and prosecutors in saying that crime will go back up and we may very well be back to the “catch and release” days of old, which many would tell you didn’t really save money at all when the costs of investigations and prosecutions of those that reoffend are analyzed.

I will not seek to refute all the points made in this statement (some of which are plainly inaccurate), but I will note the peculiarity of having someone mostly talk up state imprisonment and sentencing policies as part of a hearing focused on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences."  More importantly, it is important to recognize that this statement does not really engage or even address the justice or fairness or even cost concerns stressed by the critics of federal mandatory minimums (not does it make claims about the rule of law). 

The essence of this defense of mandatory minimums is these mandated prison sentences have been prosecutors' "best player" in fighting the drug war and the broader war on crime.  In the end, I am pleased to see a state prosecutor here making an honest and straight-forward and relatively simple claim that the crime control ends are worth the mandatory minimum means.  And, candidly, if crime was still at levels that we saw 20 years ago, I might share this view.  But I think even fans who get excited by huge wins by their favorite team still believe it is more fair, more humane and ultimately more effective in the long-term to stop beating up on the other team with "the most effective sticks" once they are up three touchdowns.  And that is why I think it is time to see the federal prosecution team have to try to "running up the score" against serious crime at a lower human and economic costs than is currently being endured.

A few recent related posts:

September 18, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (55) | TrackBack

Gearing up for Senate hearing on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences"

In just a few hours, on Tuesday September 18, 2013 at 10am, as detailed at this official webpage, there will be Hearing before the United States Senate Committee on the Judiciary on “ “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences." Here is the official agenda/hearing list:

Panel I

Panel II

I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the few hours, and I am planning to watch the webcast of the hearing (and perhaps even live-blog some of it here).

Though I expect lots of interesting discussion in this hearing, I am surprised and a bit disappointed that there is no Department of Justice representative. Also, the absence of anyone from the U.S. Sentencing Commission is also significant. But perhaps these institutions, as well as others, may be submitting written testimony as the debate over federal mandatory minimum sentencing reform kicks into another gear.

Not suprisingly, the folks at FAMM are already all geared up for today's events inside the beltway, as showcased here at FAMM's website.

Just a few recent and older related posts:

UPDATE:  Sure enough, not long after finishing this post I received an e-mail with links to this news release titled "Sentencing Commission Issues Statement For Senate Judiciary Committee Hearing On Federal Mandatory Minimum Penalties: Calls for Congressional Action Including Reduction of Mandatory Minimum Penalties for Drug Offenses." The news release references this 13-page statement from the USSC Chair, Judge Patti B. Saris, which begins this way:

Chairman Leahy, Ranking Member Grassley, and distinguished members of the Committee, thank you for providing me with the opportunity to submit this statement on behalf of the United States Sentencing Commission about mandatory minimum sentences in the federal criminal justice system.

We are particularly pleased that the Judiciary Committee is addressing this vital issue that has been a key focus for the Commission for several years. The bipartisan seven-member Commission unanimously agrees that mandatory minimum sentences in their current form have led to unintended results, caused unwarranted disparity in sentencing, and contributed to the current crisis in the federal prison population and budget. We unanimously agree that statutory changes to address these problems are appropriate.

September 18, 2013 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, September 17, 2013

Two notably different sentencing requests from two killers

The two distinct headlines concerning two distinct requests in two California capital cases caught my eye this afternoon:

Based on a (too) quick review of the substance of both of these article, I am inclined to predict that neither of these killers are likely to have their requests granted.

September 17, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

"Brown seeks 3-year delay on easing prison crowding"

The title of this post is the headline of this new article from the Los Angeles Times, which gets started this way:

Following through on a deal struck with legislative leaders, Gov. Jerry Brown told federal judges Monday that he is prepared to spends hundreds of millions of dollars moving inmates out of crowded prisons — but would rather use the money to rehabilitate prisoners so they don't come back.

To do that, the state is asking for a three-year delay in meeting the inmate population caps the judges ordered in 2010. "For prison population reduction measures to be effective and lasting, they cannot be unilaterally imposed," the governor's lawyers said in a late-night filing, arguing that "state prisons are just one part of the larger, interconnected criminal justice system."

The proposal Brown submitted is based on a compromise hammered out with lawmakers who opposed his plan to reduce crowding by sending thousands of inmates to privately owned prisons and other detention facilities.

If judges agree to delay the deadline, Brown will still move 2,500 inmates out of state lockups and into alternative facilities within California, according to the court filing. And he will set aside $150 million next year for treating drug abuse and mental illness and other rehabilitation programs.

If the judges say no, the state proposes to meet their Dec. 31 deadline by spending $315 million this year — and more the next — to move more than three times as many prisoners, primarily to private lockups as far away as Mississippi.

September 17, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, September 16, 2013

Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform

I-love-randMy (unhealthy? appropriate?) bromance with U.S. Senator Rand Paul has reached a whole new level based on this notable new article from Kentucky.  The piece is headlined "Sen. Rand Paul calls for restoring felons' voting, gun rights," and here are excerpts:

U.S. Sen. Rand Paul told a largely black audience Monday in Louisville that he will push to restore the voting and gun-ownership rights of felons who have completed their sentences — and he will urge state Senate Republicans to follow his lead. Currently in Kentucky, felons must petition the governor to get their voting rights restored.

“I am in favor of letting people get their rights back, the right to vote ... Second Amendment rights, all your rights to come back,” he said. “I know of one man who 30-some-odd years ago had pot plants in his closet in college, got a felony conviction in college, still can’t vote, and it’s plagued him his whole life trying to get work.”

The Republican’s comments came at the Plymouth Community Renewal Center in western Louisville as he spoke with community leaders about issues that affect African Americans. Additionally, as he has done in the past, he called for doing away with mandatory minimum sentences in the federal criminal justice system, saying they are often too harsh.

The Rev. Patrick Delahanty, the executive director of the Catholic Conference of Kentucky and who was not at the meeting, applauded Paul’s stance on restoring voting rights in a later interview. He said Paul’s comments could help advance the issue during the next session of the General Assembly....

Paul said during the meeting in western Louisville that he believes felons should have their rights restored automatically — either immediately after completing their sentences or at some specified point after the sentences are served. He said he plans to talk to leaders in the Kentucky Senate about their opposition and would be willing to travel to Frankfort to testify in favor of legislation to restore voting rights....

The League of Women Voters found in a 2006 study that nearly one in four African Americans is banned from the polls because of a felony conviction, compared with 1 in 17 Kentuckians overall.

Paul, who has said he is considering running for president in 2016, has been meeting with African-American groups in an effort to bridge the gap between blacks and the Republican Party. Paul also met this year with students at the historically black Howard University in Washington, D.C., and then later with students at historically black Simmons College in Louisville.

During an hourlong discussion Monday, Paul listened as black leaders talked about issues that hinder African Americans’ ability to get a leg up and fully participate in the community. Much of their concern centered around helping black men who committed crimes but have turned their lives around.

This AP article about Senator Paul's comments today also contributes to my man-love for this GOP leader:

U.S. Sen. Rand Paul drew a favorable response Monday in a mostly black Louisville neighborhood as the tea party favorite promoted the ideas of giving judges more sentencing flexibility, restoring voting rights for felons and offering tax breaks to lure businesses into struggling communities....

Paul spoke with a group of ministers and community activists during a meeting that lasted more than an hour. The senator told the group at the Plymouth Community Renewal Center that the "War on Drugs" unfairly targeted blacks. "We went crazy on the 'War on Drugs,'" the libertarian-leaning senator said. "Drugs aren't good. We should have some laws. ... We have to figure out how to go forward, so changing those laws is important."

Paul criticized federal mandatory minimum penalties that he said have clogged prisons with non-violent drug offenders. Blacks make up a disproportionately high number of those inmates, he said. "We have people in jail for life for non-violent drug crimes," he said. "I think this is a crime, in and of itself."

The first-term senator is a leading sponsor behind legislation that would give federal judges greater flexibility in sentencing. The measure is scheduled to be reviewed at a Senate Judiciary Committee hearing later this week.

"Mandatory minimums have trapped a lot of people, made them felons, made it hard for them to get jobs, for non-violent crimes," Paul said. "I would just as soon take some of these non-violent crimes and make them misdemeanors so you don't get in that trap."

Paul said he's also considering legislation that would restore voting rights for non-violent felons of federal crimes. The bill is still in draft form, he said, but the restoration of rights would apply to non-violent offenders who haven't committed other crimes for perhaps five years.

Paul said such a bill would especially be aimed at people who committed drug offenses as young adults — which he referred to as a "youthful mistake." Such offenders pay for those indiscretions for decades to come, he said. "I think the biggest problem right now with voting rights is ... not being allowed to vote because the law says you can never vote," he said.

Some recent and older related posts:

September 16, 2013 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (16) | TrackBack

Two new commentaries on California's enduring need for enduring sentencing and corrections reform

Commentators in California soundly and sensibly recognize that last week's "deal" to deal with the state's overcrowded prisons (basics here) is not a long-term solution to the range of issues that helped lead to the state's problems in the first place.  For example, this new Los Angeles Times op-ed by Lois Davis, a policy researcher at the Rand Corporation, stresses the need for better prison programming to reduce recidivism. Here are excerpts:

If California is serious about reducing its prison population, one crucial component will have to be reducing recidivism. Currently, a lot of the state's inmates are men and women who've been in prison more than once.  They get out, they have little training or education, they can't get jobs and, in many cases, they return to lives of crime and find themselves back behind bars.

But a major new study of correctional education in U.S. state prisons suggests there are things California could do to slow that revolving door.  Our research demonstrates that ex-offenders' futures may depend on what, if anything, they learn while behind bars....

My Rand Corp. colleagues and I recently completed a national study examining all the evidence on the effect of correctional education on recidivism and employment.  We found that inmates who participated in correctional education programs — remedial education to develop reading and math skills, GED preparation, postsecondary education or vocational training — were 43% less likely to return to prison within three years of release in comparison to those who did not participate. That's a 13-percentage-point reduction in the risk of reoffending.

Inmates who receive correctional education behind bars are not just significantly less likely to return to prison; they are also more likely to find jobs after being released.  Prisoners who participated in academic or vocational education programs had a 13% better chance of finding employment than those who did not. And prisoners who participated specifically in vocational training programs were 28% more likely to be employed after release from prison than those who were left out.

With times being tough and budgets tight, state policymakers, corrections officials and correctional education administrators will rightly ask whether the cost of providing such programs are worth the gains in lower recidivism. Our research shows that it is....

Failing to invest properly in education and training programs carries real risks, thrusting more uneducated and ill-equipped ex-cons onto the streets. And in California, that investment needs to be made not just in state prisons but in county jails too, since realignment has meant that many offenders who would have served their terms in prison are incarcerated in jails instead. The benefits of inmate education can extend far beyond prison walls. When former inmates are able to land jobs and stay out of prison, their families and communities gain too.

Similarly, though with a distinct reform focus, this local editorial stresses the need for broader sentencing changes in California.  Here is an excerpt:

California has spent the past two decades learning a harsh, expensive lesson: The state does not have the financial resources to keep pace with the consequences of the hard-line sentencing laws imposed in the 1990s....

Politicians have long known that comprehensive sentencing reform is the solution, but have largely balked for fear of being labeled soft on crime. Until now. The compromise between Gov. Jerry Brown and Republican and Democratic legislative leaders on prison overcrowding creates a rare opportunity for California to seriously address the issue....

The challenge will be crafting new sentencing laws that deter crime, provide a fair punishment for criminal transgressions and reduce the state's 65 percent recidivism rate -- the highest in the nation. The national average is about 45 percent....

Comprehensive sentencing reform is the logical next step for California to create a sustainable, efficient and just state prison system. Maybe we can leave politics out of it.

September 16, 2013 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, September 12, 2013

Judicial Conference writes to Prez Obama about crisis in funding court operations

As reported via this Politico story, headlined "Judiciary sends Obama budget plea," the Judicial Conference of the United States has written directly to Prez Obama to lament the impact of sequestration and budget cuts.   The letter to the Prez is available at this link, and here are passages from the letter which especially stress criminal justice concerns:

Several years of flat funding, followed by the sequestration cuts that took effect March 1, 2013, have had a devastating impact on court operations nationwide.....

The funding reductions have also put public safety at risk.  Staffing in probation and pretrial services offices is down seven percent since 2011 at a time when the number of convicted offenders under the supervision of federal probation officers hit a record 187,311 in 2012 and is on pace to reach 191,000 in 2014.  In addition, a 20 percent cut had to be made to the funding for drug, mental health, and sex offender treatment, as well as to drug testing services for offenders, searches, and electronic and GPS monitoring.

But the most significant impact of the budget cuts and sequestration thus far has been the reduction in funding for Defender Services.  Federal defender organizations (FDOs) and private panel attorneys fulfill the mandate of the Sixth Amendment and the Criminal Justice Act (CJA). Because the Constitution requires that we must provide counsel for indigent defendants, the only options for absorbing the more than $50 million cut to the Defender Services account are reducing FDO staffing levels through layoffs and furloughs, or deferring or reducing payments to private CJA panel attorneys.

For FY 2013, the Judiciary applied the $51 million reduction to Defender Services by requiring a suspension of payments to private panel attorneys for the last three weeks of the fiscal year, while the FDOs had to make staffing reductions and impose furloughs on remaining employees for an average of 15 days over the last half of the fiscal year. Between October 2012 and June 2013, FDOs downsized by more than 6 percent. Since March, their remaining employees have been furloughed for over 12,500 days. We can already see the impact of FDO staffing reductions in our courts. As one example, the federal defender office in New York recently asked to postpone the trial of alleged terrorist Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law.

Concerned about an impending shortfall of funding in FY 2014 for Defender Services, we recently took emergency action to preserve the indigent criminal defense function by committing to provide FY 2014 funding for federal defender organizations at a level sufficient to maintain nationwide the projected on-board staffing as of the end of September 30, 2013.  Absent the receipt of additional funding in FY 2014, achieving this objective will require reductions to the private panel attorney program.  Specifically, up to four weeks of panel attorney payments that otherwise would be payable in FY 2014 will have to be deferred into FY 2015.  In addition, the panel attorney compensation rate, for work performed from September 1, 2013, through September 30, 2014, will be reduced on a temporary emergency basis, by $15.00 per hour, for capital and non-capital case representations.

Under Article III of the Constitution, the Federal Judiciary is responsible for fairly and effectively adjudicating criminal and civil cases.   We do not have projects or programs to cut; for us, the cuts directly impact people.  We must adjudicate all cases that are filed with the courts, we must protect the community by supervising defendants awaiting trial and criminals on postconviction release, we must provide qualified defense counsel for defendants who cannot afford representation, we must pay jurors for costs associated with performing their civic duty, and we must ensure the safety and security of judges, court staff, litigants, and the public in federal court facilities.  Our workload does not diminish because of budget shortfalls.

September 12, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

California legislature quickly approves new plan to deal with prison overcrowding

The old saying is "Where there is a will, there is a way."  The proper saying in California concerning prison overcrowding might be "Where there is a prisoner-release federal court order, there becomes the will needed to find a way."  I say this based on this latest legislative news via the Los Angeles Times coming from the Golden State, headlined "Legislators give bill on prisons quick passage: Measure aimed at easing crowding by rehabilitating offenders goes to the governor."  Here are excerpts:

A plan to ease prison crowding is on its way to Gov. Jerry Brown after winning swift approval Wednesday from both houses of the Legislature. The fast-tracked bill, announced Monday, addresses a federal court order requiring the state to shrink its prison population by about 9,600 inmates by the end of the year.

Lawmakers also completed work on measures that would further restrict firearms, increase penalties for sex offenders who remove their GPS monitoring devices and relax rules on billboard advertising.

Under the prison deal, brokered by the governor and legislative leaders, the state will seek extra time to comply with the court. If an extension is granted, officials will use it to expand rehabilitation programs aimed at keeping offenders from returning to prison after they have served their time.

If judges reject the request, the state will relocate thousands of inmates to privately owned prisons and other detention facilities. Moving the prisoners would cost $315 million in the current fiscal year and is projected to cost $415 million in each of the two subsequent years.

Senate President Pro Tem Darrell Steinberg (D-Sacramento), who initially had clashed with Brown and Assembly Speaker John A. Pérez (D-Los Angeles) over how to meet the court's demand, called passage of the bill a "pivotal moment," potentially shifting California's efforts toward a long-term solution to prison overcrowding.

Senate minority leader Robert Huff (R-Diamond Bar) said the proposal was needed to avoid the possible release of inmates before their sentences were up. "It gives us certainty that there is no early release," Huff told his colleagues.

Some Democrats pushed back on the price tag for housing in the bill, SB 105, by Steinberg and Huff. One of those Democrats, Sen. Noreen Evans of Santa Rosa, said during the debate that after years of state belt-tightening, "I simply cannot in good conscience give a $315 million blank check to the director of our corrections system. "I don't believe it is fiscally responsible," Evans said. "It will not provide the reforms that we want."

If the state does not relocate prisoners, at least $75 million of that money will go to rehabilitation programs such as drug treatment and mental health services. The rest of the $315 million will be divided between rehab programs and the state's general fund....

On another law-enforcement issue, legislators approved a measure, spurred by reports in The Times, about a growing number of sex offenders cutting off the electronic monitoring devices the law requires them to wear. Those who do so would face a mandatory 180 days in jail under SB 57 by Sen. Ted Lieu (D-Torrance), which went to Brown. Many such offenders get little or no time behind bars now.

September 12, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, September 11, 2013

Could GOP Senator John Cornyn be the next big advocate for reducing federal prison terms?

The question in the title of this post is prompted by this very interesting new piece by Greg Sargent via the Washington Post under the headline "Where are Republicans on sentencing reform?." Here are excerpts:

When Eric Holder announced recently that he is pursuing an ambitious package of sentencing reforms, including proposals to reduce “mandatory minimum” sentences, there was a widespread sense it could attract broad bipartisan support. The thinking was that agreement cuts across party lines that our decades-long experiment in mass incarceration has been a huge policy failure.

Now Dem Congressional aides are asking: Will leading Republicans step forward and support reform?...

I can report a new development on this front. I’m told GOP Senator John Cornyn is working on a separate but related package of prison-reform legislation that could help bring more attention to the overall debate.  According to his office, Cornyn is developing proposals designed to reduce recidivism rates and time served in prison. The ideas are not sentencing reform and would not reduce the sentences themselves — as would Holder’s proposals — but instead would give prisoners ways to reduce already-doled-out sentences.

The policies, which are modeled on similar reforms in Texas, would allow certain types of non-violent prisoners to do various programs — such as recidivism reduction programming, work programs, or other productive activities.  Prisoners at low risk of recidivism could trade in the time they do in such programs to convert their remaining time in prison into time in halfway houses or home confinement.

While these ideas don’t attack the problem in precisely the same way the ideas pushed by Holder and Dems do, there is overlap. As Cornyn’s office notes, their goal would be to reduce the amount of time people spend in prison, reduce recidivisim, and reduce costs. Cornyn’s office says he will try to round up Republican and Democratic support for them and possibly introduce them this fall.  If that happens, it could help ignite a conversation on the broader set of issues here....

But we have yet to hear from leading Republicans whose support would be required to push this debate forward, such as Senators Orrin Hatch and Jeff Sessions, both of whom are on the Judiciary Committee and (to my knowledge) have not seriously weighed in on Holder’s push.  The question is whether establishment Republicans are going to have a real voice on this issue this fall.  Let’s hope so.

I am pretty sure there are more than a few folks within the Justice Department who have advocated (both formally and behind the scenes) for expanding "good time" credits and creating "earned time" credits in order to make it much easier for nonviolent federal prisoners "to reduce already-doled-out sentences."  Consequently, it is not so much the specifics of Senator Cornyn's working plan that are such a big deal, but rather that someone without a obvious Tea Party history is working on a federal prison reduction plan at all.  Kudos to Senator Cornyn, and I hope joins the ever-growing chorus of GOP voices calling for federal criminal justice reforms.

Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:

September 11, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

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

The title of this post is the title of this quite-interesting looking empirical piece by Matthew Heise now available via SSRN.  Here is the abstract:

Conventional wisdom notes persistent regional differences in the death penalty’s application 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 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 1973-2010, 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 comes 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.

September 11, 2013 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, September 10, 2013

Reformers claim California three-strikes reform is reducing excessive imprisonment without endangering public

Progress-report-1000-prisoners-releasedI am very pleased to see this new story out of California following up on an important example of voters directly embracing "smart" versus "tough" sentencing reform. The piece is headlined "Prop. 36's '3 strikes' change working, lawyers say," and here are excerpts:

Ten months after Californians voted to ease the state's "three strikes" law by exempting lesser offenders from life sentences, drafters of the ballot measure said Monday it's working just as they predicted -- reducing unnecessary imprisonment without endangering the public.

In fact, the 1,000 inmates released so far under Proposition 36 are committing new crimes at a far lower rate than other newly freed inmates in California, lawyers at Stanford's Three Strikes Center and the NAACP Legal Defense Fund said at a media briefing.

Those three strikes prisoners have been free for an average of four months, and fewer than 2 percent have been charged with new crimes, mostly misdemeanors and all relatively minor offenses, the report said.  By contrast, it said, 16 percent of newly freed inmates in California are charged with new crimes in the first 90 days.

Opponents' prediction of "blood in the streets was hyperbole," said David Mills, a Stanford law professor who founded the Three Strikes Center.  "Millions of dollars have been saved and many lives changed, hopefully for the better."   He said the state provides some support for rehabilitation and training of other released prisoners, but offers no such assistance to those released under Prop. 36.

More than 2,000 additional people with third strikes have asked a judge for release under Prop. 36, including more than 850 in Los Angeles County, which is processing the cases slower than other counties, said Mike Romano of the Three Strikes Center.

The report was released on the same day that Gov. Jerry Brown and legislative leaders announced agreement on a proposal to reduce California's prison population by nearly 10,000 inmates over three years, rather than the Dec. 31 deadline set by a federal court.  The plan would cost $200 million a year for local drug treatment and other rehabilitation programs, which are designed to lower the prison population over time, if the court agreed to extend the deadline.  If not, Brown plans to spend $315 million a year to lease cells in jails and private prisons where current prison inmates would be transferred....

Prop. 36, passed with a 69 percent majority in November, abolished life terms for criminals whose third strikes were neither serious nor violent and instead sentenced them to twice the normal term. Those reductions did not apply, however, to defendants who had previous convictions for sexual assaults and some other crimes or violence or drug trafficking.

Inmates serving 25 years-to-life terms for third strikes that were neither violent nor serious can seek to have their sentences reduced.  Before release, a judge must decide, based on the prisoner's record and prison conduct, that he or she does not pose an unreasonable risk to the public.  Prosecutors can object to release but cannot veto it.

Though not made so clear in this article, the Stanford Law School Three Stikes Project has released this effective (and short) Progress Report (which was co-published by the NAACP Legal Defense and Eduction Fund) to mark the 1,000th inmate released under the Three Strikes Reform Act of 2012 ("Proposition 36").   Here is part of the report's abstract:

Fewer than ten months after the California electorate voted overwhelmingly in favor of Proposition 36 in November 2012, over 1,000 inmates have been resentenced and released pursuant to its provisions. Although many prisoners have been resentenced, there are still more than 2,000 eligible cases outstanding, including over 800 unresolved eligible claims in Los Angeles County alone.

This Report shows that the recidivism rate of prisoners released under the Proposition 36 (2 percent) is well below California's statewide average (16 percent). The Report also presents individual success stories of some of those resentenced and released.

Finally, this report proposes recommendations to address outstanding issues regarding the proposition’s implementation, including expediting the review of over 2,000 prisoners still waiting for their cases to be resolved under Proposition 36; ensuring that prosecutors and public defenders have adequate resources to litigate those cases; and providing better housing, drug treatment, and job training opportunities for prisoners reentering the community.

September 10, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"

Jordan-Linn-Graham_2666631bThe title of this post is drawn from the headline of this notable new local "real crime" story that is all the buzz this morning in lots of national media outlets.  Based on the reported facts reprinted below, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this killer bride (who is in federal custody because she committed her crime at a national park):

The wife of a 25-year-old Kalispell man, who was found dead in Glacier National Park in July, is now charged with his murder.  Jordan Linn Graham, 22, appeared in federal court in Missoula on Monday on a charge of second degree murder in the death of her husband, Cody Lee Johnson.

Court documents allege the newlywed wife pushed her husband off a cliff in Glacier National Park during an argument just a week after they were married.  Charging documents reveal Jordan Linn Graham told a friend she was having second thoughts about getting married to Cody Lee Johnson.  Graham then told her friend she intended to discuss the matter with Johnson that night, Sunday, July 7.  She followed up with a text message that read, "But dead serious. If you don't hear from me at all again tonight, something happened."

The next day, Monday, July 8, Johnson was reported missing when he failed to show up for work.  Around 8:30 p.m. on Thursday, July 11, a Glacier National Park ranger was dispatched to the Lake Mcdonald Camp Store for a visitor reporting a dead body. The affidavit states that Graham was identified as the person who told the ranger she found a dead body.

Johnson's body was recovered the next day below a popular viewpoint on the Going-to-the-Sun Road called "The Loop."  Graham was interviewed by FBI special agents on July 16, which was nearly one week after the disappearance of her new husband.  It was then that she admitted to law enforcement that she lied about Johnson's death.

She told the FBI agent she and her husband were arguing on July 7 as they walked the Loop Trail.  Documents say at one point, she turned to walk away, but Johnson grabbed her arm. Graham said she turned around and removed his hand from her arm.  She went on to say that "she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a results, he fell face first off the cliff."  During an initial interview with law enforcement, Graham said that Johnson left the house late with friends in a dark-colored car late on the night in question. 

Graham faces a federal charge of second degree murder. If convicted, she could face life in prison.

The U.S. Sentencing Guidelines provide a base offense level of 38 for second-degree murder in section 2A1.2, which corresponds to an advisory guideline sentencing range of just under 20 to 25 years (assuming no significant criminal history).  But I would expect a guilty plea here which alone, thanks to an acceptance of responsibility downward adjustment, could reduce the advisory range to 14 to 18 years.  That said, the defendant's prior lies about the crime could lead to an obstruction of justice enhancement, and it is especially interesting to consider whether federal prosecutors could or should also argue for another offense level upward adjustment here based on abuse of a position of private trust.

Of course, the defendant might be able to secure a guilty plea to only a voluntary or involuntary manslaughter charge, which could and would alone dramatically reduce the applicable guideline sentence range (as evidenced here and here), perhaps even to a guideline level so low that the advisory range might even permit a within-guideline sentence involving an alternative to incarceration.  And, of course, with the federal sentencing guidelines only advisory, a federal sentencing judge could surely develop under various 3553(a) factors various arguments to justify a sentence perhaps as high as life and as low as straight probation.

Though I am not teaching my upper-level sentencing course until next semester, I sincerely hope (and somewhat expect) that this case will stay in federal court and stay in the headlines for some time.  As the discussion above is meant to highlights, this case serves as an interesting and accessible example of just how much discretionary sentencing play there is in the "joints" of the modern federal sentencing system for both litigants and judges.

UPDATE:  The FBI affidavit which provided the basis for charges in this case is now available via this link.

September 10, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack

Monday, September 09, 2013

What questions should be central to Senate Judiciary Committee Hearing on "Conflicts between State and Federal Marijuana Laws"?

Though perhaps overshadowed by foreign policy issues these days, on Tuesday September 10, 2013 at 2:30pm, as detailed at this official webpage, there will be a hearing before the United States Senate Committee on the Judiciary on “Conflicts between State and Federal Marijuana Laws.” Here is the official agenda/hearing list:

Panel I

  • The Honorable James Cole, Deputy Attorney General, U.S. Department of Justice

Panel II

  • The Honorable John Urquhart, Sheriff, King County [Washington] Sheriff’s Office
  • Jack Finlaw, Chief Legal Counsel Office of [Colorado] Governor John W. Hickenlooper
  • Kevin A. Sabet, Ph.D., Co-founder and Director, Project SAM Director, Drug Policy Institute, University of Florida

I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the next 24 hours, and I am planning to watch the webcast of the hearing (and perhaps even live-blog some of it at Marijuana Law, Policy and Reform). 

Here at The Weed Blog one can see a whole bunch of very hard questions that might be asked of DAG Cole concerning federal policies and practices, which were set forth in a letter sent by the pro-reform group California NORML to Senator Dianne Feinstein.  I doubt many of these questions will be asked verbatim, but they provide an effective pro-reform perspectives on various ways in which state and federal marijuana laws, policies and practices operate at cross-purposes.

As the title of this post suggests, I am eager for readers of this blog to indicate what kinds of questions they might be most eager to see addressed in tomorrow's scheduled Senate hearing.

Cross-posted at  Marijuana Law, Policy and Reform.

September 9, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, September 07, 2013

Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?

As part of our Federalist Society Teleforum earlier this week (noted/linked here), Bill Otis started with a thorough and thoughtful defense of federal mandatory minimum sentencing statutes.  Helpfully, Bill has posted the full text of his "opening statement" at Crime & Consequences. I recommend a careful reading of Bill's advocacy, both to see how strong it is in many spots and also to notice its potential weaknesses.

As the title of this post highlights, I see one fatal weakness in Bill's advocacy for current federal mandatory minimums (FMMs).  Specifically, these passages showcase that, while Bill claims he is eager to champion FMMs as a benefit to the "rule of law" at sentencing, what Bill really favors is the "rule of prosecutors" at sentencing that FMMs in fact facilitate:

"The Attorney General's remarks [to the ABA suggests] ... he wants to discard the last pillar of law-driven sentencing, to embrace a luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic....
"It is one thing, and wise, to give judges substantial discretion.  It's another to give them all of it.  Because judges vary widely in temperament, ideology and experience, letting individual judges decide without legislative constraint what the sentence will be is sure to lead to irrational disparity.  Without Congressionally-imposed floors, we'll go back to the luck-of-the-draw.  Some judges will stick with mandatory sentences and some won't. Nearly identical defendants with similar records will get widely varying treatment based solely on whose courtroom they're assigned to....
"Finally, existing law already provides at least three escape hatches for deserving defendants facing a mandatory minimum.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player, and makes a clean breast of his crimes.  This "safety valve," as it's known, has been in the law for almost 20 years.  Separately, under existing law (Section 3553(e)), a defendant can avoid a mandatory minimum by helping prosecutors bring his cohorts to justice.  Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down conspiracies.

These are all important points, but they are in significant tension.  Notably, despite his advocacy for "Congressionally-imposed floors," Bill seems to endorse the "three escape hatches for deserving defendants" that emerges from plea bargaining, providing substantial assistance or satisfying the statutory safety valve.  What he does not mention is that individual federal prosecutors (operating off-the-record and not subject to any legal constraint or review) generally have complete or nearly complete control as to whether and when a defendant is "deserving" of benefiting from these escape hatches.  In other words, it is FMMs with their prosecutor-controlled escape hatches in the current federal system that in fact create a true and pure "luck-of-the-draw system," but one in which it is only individual federal prosecutors get to "decide without legislative constraint what the sentence will be" because they get to decide, without any legal constraint or accountability, whether and when any Congressionally-imposed floors will be in play at sentencing.

Bill is often quick to assert in this setting that the Constitution demands prosecutors have complete and unfettered charging and bargaining discretion.  But the Constitution plainly does not demand that Congress enact FMMs that function to enhance the most pernicious idiosyncratic aspects of "luck of the prosecutor" federal sentencing.  Moreover, and even more worrisome, evidence collected by the US Sentencing Commission and federal judges and researchers about how federal prosecutors use their lawless discretionary powers in the modern federal sentencing era suggests defendants would be lucky to get "luck of the draw" sentencing from prosecutors.  Much of the most cogent and comprehensive data analysis at least suggest that race and others very suspect sentencing factors disproportionately impact how prosecutors exercise their lawless discretion in the shadow of current FMMs.  In other words, FMMs do not merely facilitate luck-of-the-draw prosecutorial sentencing, but may well foster discriminatory sentencing decision-making.

(As a relevant aside, I must note that Bill again avoids any discussion of perhaps the most troublesome of FMMs because neither law or logic begins to explain when and how idiosyncratic federal prosecutors use their charging and bargain powers to "decide without legislative constraint what the sentence will be." I speak here of federal child porn sentencing provisions in which downloaders charged by prosecutors with possession offenses face no mandatory minimum term, but those charged with receipt offenses face a FMM. In recent years, hundreds of "identical defendants with similar records [who download CP] get widely varying treatment based solely on" whether a federal prosecutor decided to charge a possession or receipt offense. And, of course, while the US Sentencing Commission and other researchers can and do scour transparent and documented courtroom sentencing decisions in CP cases to see if and when there is lots of unjustified sentencing disparity as a result of judicial sentencing discretion, it is near impossible even to collect data from the hidden and undocumented prosecutorial sentencing decisions that FMMs facilitate.)

In sum, I share Bill's profound disaffinity for a lawless "luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic." But that disaffinity is what makes me an advocate for reforming or eliminating many current FMMs. Both formally and functionally, the rule of law and our constitutional system of check-and-balances are better served by a federal sentencing system with few if any FMMs. But, if you prefer a "rule of prosecutors" to the "rule of law," if you think a lawless luck-of-the-draw system is okay as long as it is mostly run by partisan prosecutors, then the current FMM reality should be to your liking as well as to Bill's.

September 7, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (36) | TrackBack

Legal twists and turns continue in controversial rape sentencing case from Montana

As reported in this local article, there were a number of notable court developments on Friday in the Montana child rape sentencing case that has garnered national attention.  Here are the basics:

The Billings judge who drew local and national condemnation for sentencing a former Senior High teacher to 30 days in prison for raping a 14-year-old student canceled a second sentencing hearing on Friday after the Montana Supreme Court intervened in the case.

But District Judge G. Todd Baugh did address an audience of mostly media representatives for about 10 minutes, explaining the legal and procedural history of the Stacey Rambold rape case that has grabbed headlines across the country for the past two weeks.

Less than an hour before Baugh stepped into the courtroom, the Montana Supreme Court issued an order canceling the hearing, telling Baugh that he could not legally change Rambold's sentence as he intended. "We conclude that the stated intent of the District Court to alter the initially imposed oral sentence in today's scheduled hearing is unlawful and that proceeding should be arrested," the order stated.....

The hearing Baugh wanted to hold in order to change Rambold's sentence was opposed by both the Yellowstone County Attorney's Office and Rambold's defense attorney, who argued that Baugh did not have the authority to change the sentence after announcing it in court last week. In its order, the Supreme Court also said it "takes no position on the legality of the imposed sentence, and will address the parties' arguments in that regard on appeal."

Attorney General Tim Fox released a statement later Friday that his office would proceed with the appeal, which was filed on Tuesday. "While it's good that Judge Baugh recognizes that his August 26 sentence of Stacey Rambold is contrary to the law, today the state Supreme Court affirmed that Judge Baugh has no authority to amend the sentence unless ordered to do so by the Supreme Court," Fox said.

Though he did not impose a new sentence, Baugh went ahead with the unusual hearing. The hearing began 1:40 p.m., and Baugh announced that he had decided on Thursday, before the Supreme Court intervened, to cancel the hearing he intended to hold aimed at re-sentencing Rambold....

A reporter from the New York Times and a crew from CNN were among the media representatives at the hearing, which was held on the record with a court reporter and court clerk present. Baugh told the gathering that he had also on Thursday signed a written judgment altering the sentence he imposed orally against Rambold on Aug. 26. The judge said the new sentence was 15 years in prison, with all but two years suspended, which he said is the minimum legal sentence in the case.

Less than two weeks ago, Baugh sentenced the 54-year-old Rambold to 15 years in prison, with all but 31 days suspended and credit for one day served. After reviewing the Supreme Court order, Baugh said, he put a note in the file withdrawing that written judgment and signed a new judgment reflecting his original sentence.

Baugh said the confusion over the mandatory minimum sentence in the case "shouldn't have had to be addressed at all." The confusion could have been avoided if "I had been more alert" or if prosecutors had addressed the issue at Rambold's Aug. 26 sentencing hearing. At that hearing, the prosecution argued that Rambold should receive a sentence of 20 years in prison, with 10 years suspended.

Baugh instead imposed the sentence requested by Rambold's defense attorney, Jay Lansing. The sentence caused a national outrage, not only for the prison term imposed on the former teacher, but for the words the judge used to explain the sentence. Baugh said the victim, Cherice Moralez, who committed suicide in 2010, was "older than her chronological age" and was in some control of the relationship with Rambold.

The judge apologized for the statements two days later, but critics have continued to call for his resignation. Baugh explained on Friday that the case began with the charges filed in 2008, but resulted in an unusual deferred prosecution agreement in July 2010 after Moralez's death.... Baugh said the sentencing hearing on Aug. 26 happened almost six years after the crimes. Rambold was found to be treatable in the community, and had committed no new crimes, he said.

"It seemed to me a suspended sentence was the most appropriate," Baugh said. The case will now proceed to the appeal process, the judge said.

Recent related posts:

September 7, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, September 06, 2013

New commentary calls "creative" shaming punishments "terrible" (on curious grounds)

Dameron.png.CROP.rectangle3-largeSlate's crime correspondent, Justin Peters, has this notable new commentary headlined "Dear Judges: Your Creative Punishments Are Hilarious and Also Terrible. Please Stop."  I will reprint below the commentary in full (with original links also reproduced) because I always find these kinds of (purportedly rightous) attacks on creative shaming sentences puzzling and curious:

If there’s one thing Americans love, other than the troubled-restaurant-turnaround stylings of Gordon Ramsay, it’s judges who impose “stunt” sentences on defendants. These sorts of stories crop up a couple of times per year, and they always seem to make the “lighter side” segment on the 10:00 news.  The most recent example of this comes from Cleveland, where Judge Pinkey Carr sentenced a man named Richard Dameron, who threatened a police officer, to stand outside a police station wearing a sign that read “I apologize to Officer Simone and all police officers for being an idiot calling 911 threatening to kill you. I'm sorry and it will never happen again.” To give the sentence a personal touch, the judge hand-lettered the sign herself.  These sorts of “Oh, snap!” sentences are undeniably funny.  But are they actually legal?  Do public humiliations like these constitute cruel and unusual punishments?

Legislatures generally give judges a lot of latitude to freestyle from the bench, as long as they can make the case that their funny punishments serve some sort of rehabilitative purpose.  Federal courts have supported creative sentencing, too. In 2004’s United States v. Gementera, the Ninth Circuit ruled that a district court judge was well within his rights to sentence mail thief Shawn Gementera to, among other things, stand outside a postal facility wearing a sign that read “I stole mail; this is my punishment.” In his opinion, Judge Diarmuid O’Scannlain (!) determined that “the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public.”

So these sentences, although unusual, are not seen to be unconstitutionally cruel.  And they clearly stem from valid frustration with America’s imperfect criminal justice system, which sends convicted criminals into dangerously overcrowded prisons, fails to rehabilitate them, and then releases them back into society, where they are apt to offend again.  It’s a frustrating cycle, and so you can understand why, rather than send an abusive father to prison, a judge might think it more effective to have him sleep in the same doghouse where he allegedly used to banish his son, or to sentence a burglar to have something valuable stolen from his house.  Call it poetic justice.  Call it common sense.

But as George Washington University law professor Jonathan Turley has written, poetic justice rarely has anything to do with legal justice.  The entire point of a code of laws is to move away from “common sense” justice and its attendant inconsistencies, and to professionalize the process by establishing a standardized list of crimes and punishments that’s valid in all jurisdictions.  The judiciary’s role is to interpret these laws and pass judgment on behalf of the state; judges are theoretically elected or appointed based on their supremely nuanced understanding of these laws, not based on their ability to hand-letter punitive signage.  This doesn’t mean that the system always works.  But it’s meant to ensure that, at the very least, the system proceeds with a measure of fairness and dignity.

Theatrical, cornpone deviations from this standard undermine the judicial system.  A sentencing hearing becomes less about the state passing judgment on a convicted criminal than an individual judge imposing her standards of right and wrong.  Our criminal justice system might not work very well.  But it ought to be fixed in the legislatures, not on an ad hoc basis by grandstanding judges who act as though they won their robes in a raffle. Public shaming is better suited for courtroom reality shows, which, indeed, is where one of stunt sentencing’s most famous practitioners — Judge Joe Brown — ended up. If that’s where Judge Pinkey Carr is bound, then I wish her well, and I hope she gets there soon, because her brand of homespun, alternative justice has no business in a real courtroom.

In short, this commentary recognizes that both the Constitution and legislatures permit shaming sanctions if and when, to quote the Ninth Circuit, they seek to serve the "stated and legitimate statutory purpose of rehabilitation and ... for general deterrence and for the protection of the public." In addition, this commentary seems to acknowledge that in many cases, the traditional punishment of locking someone in a cage often will not effectively or efficiently serve these purposes.  Nevertheless, apparently because a judge's purported role is to "to interpret [criminal] laws and pass judgment on behalf of the state" and because the criminal justice system is to proceed "with a measure of fairness and dignity," then creative shaming punishments somehow "undermine the judicial system." 

Huh?  For me this kind of argument and its fuzzy logic just does not compute.  Perhaps this is fundamentally because I see very little "fairness and dignity" coming from locking humans in cages, but it is also because there is anecdotal evidence that creative shaming sanctions may be significantly more effective than imprisonment in serving the express statutory sentencing purposes set forth by Congress and state legislatures. 

If and when data indicate creative sanctions are less effective than imprisonment at achieving public safety, I will be moved by the notion that such punishments are bad policy.  If and when Congress or state legislatures expressly prohibit shaming sactions because the people's representatives conclude such punishments "undermine the judicial system," then I will support claims they are unlawful.  Until such time, and especially because I also think our traditional punishments "might not work very well," I have a hard time being convinced by reactionary criticisms of seemingly reasonable efforts by seemingly well-meaning judges to try to make the criminal justice system they help administer work just a little better for all of society's benefit.

I sometimes think that what really explains these kinds of criticisms of creative shaming sanctions is the discomfort that the critic feels from having to see on full display and then think seriously about the many ugly realities of crime and punishment in our modern criminal justice systems.  When tens of thousands of defendants are sent away to prison every year in the United States, and thus effectively hidden away from public view (absent hunger strikes or suicides or other dramatic and harmful actions), those who do not regularly encounter many crime victims and/or criminal defendants need not think too much to the ugly modern realities of crime and punishment in our modern criminal justice systems.  But when a just few defendants are given creative shaming sanctions each year by seemingly well-meaning judges who are trying to improve the system, we all must confront the disconcerting reality that these kinds of punishment may actually be a significant improvement over the "traditional" status quo. 

I understand why the notion that creative shaming sanctions are a possible improvement over traditional punishment is a reality that could be deeply disconcerting to those who want to champion (and cling to) high-minded conceptions of the importance of "fairness and dignity" in our criminal justice system.  But attacking judges who are looking for novel sentencing alternatives which could be more effective and efficient than locking humans in cages is, in my view, an example of shooting the messenger because you do not like the real-world news being delivered through these kinds of punishments.

September 6, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"McSentencing: Mass Federal Sentencing and the Law of Unintended Consequences"

The title of this post is the title of this provocative new paper by Melissa Hamilton now available via SSRN. And this abstract suggests the content of the article is as delicious as the title:

The law of unintended consequences conjectures that any legislative act will yield unanticipated, and likely undesirable, outcomes. Federal sentencing law is no exception. Federal sentencing reforms enacted in the 1980s were designed to achieve uniformity and proportionality in meting out punishments. Congress expected that the creation of a presumptive guidelines system and the frequent imposition of mandatory minimum sentencing laws would effectively operate to provide federal judges with a consistent and uniform set of rules to follow, while substantially curbing judicial discretion. The emergent sentencing system relies substantially on a mechanized system of assembly-line justice in which judges are demoted to merely terminal actors in issuing sentences. This Article posits that the system is a form of McDonaldization of society, a popular concept that recognizes the model of fast food consumerism is an ideal type of the bureaucratization of a modern rational system in America today. The federal sentencing system is intended by the reform legislation to comprise a sort of McSentencing in that the outputs — sentences — are produced through an automated process involving discrete quantifications of harm. The result is mass sentencing based on an extensive and refined rules and procedures manual, i.e., the guidelines, and relevant mandatory minimums.

As with the fast food chain, McSentencing offers such benefits as predictability, calculability, efficiency, and control. Theoretically, McSentencing should beget consistent, uniform, and normative punishments. Yet, as with any rational system, unintended consequences necessarily follow purposive legislative action. This Article explains how the federal sentencing system earns the McSentencing label and then addresses significant unanticipated consequences which have ensued. The actors in the proposed assembly-line of sentencing — the sentencing commission, prosecutors, probation officers, judges — have reacted to the reforms and to each other in ways that have biased the ability for the sentencing reforms to achieve the intended objectives. The federal sentencing system is in crisis as a result. This Article offers a unique perspective by utilizing the theoretical constructs of McDonaldization and the law of unintended consequences as orienting devices for a case study on federal sentencing law. Statistical measures derived from various government datasets supplement the analysis with empirical perspectives.

September 6, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, September 05, 2013

Effective review of history and modern realities of felon disenfranchisement

0613_issuecover_0I just came across this effective recent article in the American Prospect which discusses the history of felony disenfranchisement laws in the United States and their continued impact and import. The piece is titled "The Ex-Con Factor: Felony-disenfranchisement laws suppress black turnout enough to swing elections, and the future of reform is murky," and here are just a few passages that caught my eye:

Virginia is one of four states — along with Florida, Iowa, and Kentucky — that strip voting rights from felons for life.  The U.S. is the world’s only democracy that permits permanent disenfranchisement.  While most states have some restrictions on felons voting, it takes a decree from the governor or a clemency board to restore voting rights in the four states with lifetime bans.  In Virginia alone, 450,000 residents are disenfranchised.  In Florida, the total is an astonishing 1.5 million....

All but two states, Vermont and Maine, disenfranchise felons for some period of time. Thirteen states strip voting rights only for the period of incarceration.  Most have waiting periods with various requirements, like paying fines and completing special applications. Seven states — Alabama, Arizona, Delaware, Mississippi, Nevada, Tennessee, and Wyoming — have lifetime bans for particular crimes or repeat felony offenders.  They aren’t the strictest laws, but they affect enough potential voters to sway statewide elections.  In Alabama, more than 260,000 residents are stripped of their voting rights; more than half, just over 137,000, are African American.  In Mississippi, blacks account for nearly 60 percent of the 182,000 disenfranchised citizens.

When you add it all up, the numbers are startling.  More than five million Americans are currently disenfranchised because of felony convictions — an increase of some 270,000 over the past decade.  Nearly 1.4 million are ... black men. They represent 24 percent of the total disenfranchised population and a whopping 13 percent of all voting-age African American men.

Black men’s overrepresentation is no accident.  Felony disenfranchisement laws trace back to the post-Reconstruction era when former Confederates and white Southern Democrats rolled back the political gains made by free slaves after the war.  The whole point of these laws was the mass exclusion of black men from mainstream civic life.  It still is.

You can see the effects most clearly in black turnout rates.  The nation’s 27 million African American voters are concentrated in the South and in Northern urban centers.  Almost two-thirds — 66 percent — voted in last year’s presidential election, giving African Americans higher turnout than any other racial group.  But unlike with other groups, there was an odd gender gap: While more than 70 percent of black women voted, only 60 percent of black men went to the polls.  The difference, according to Bernard Fraga of Harvard University, is explained entirely by the huge number of black men who are disenfranchised....

From the start, criminal disenfranchisement laws were part of the white Democrats’ Redemption campaign.  They were written as race-neutral but were racist in their effects, as Middle Tennessee State University history professor Pippa Holloway documents in her book Living in Infamy: Felon Disenfranchisement and the History of American Citizenship. In just the period between 1874 and 1882, every Southern state but Texas found ways to disenfranchise those convicted of minor crimes like petty theft.  “Some Southern states changed their laws to upgrade misdemeanor property crimes to felonies,” Holloway explains, “and finally, Southern courts interpreted existing laws to include misdemeanors as disenfranchising crimes.”...

For those who want to end this last vestige of Jim Crow, the past two decades have brought decidedly mixed news.  On the one hand, nine states — including the South’s two largest — have repealed or amended lifetime disenfranchisement laws since the late 1990s. In 1997, the Texas Legislature — under Governor George W. Bush — ended its two-year waiting period for regaining eligibility after release, restoring rights to 317,000 citizens.  Seven years later, in 2004, another Governor Bush — Jeb — ordered the state clemency board to simplify Florida’s procedure, leading to the restoration of voting rights for 152,000 people.

But after the Tea Party wave election of 2010, Republicans in several states began to call again for stricter disenfranchisement.  In Florida, Republican Governor Rick Scott reversed the reforms that had smoothed the process for ex-felons and added a five-year period for rights restoration for nonviolent felonies, and a seven-year period for violent ones and other serious crimes.  One in ten voting-age Floridians now lacks voting rights as a result of past crimes.  Florida’s harsh disenfranchisement laws are reflected in another stark statistic — more than 25 percent of all disenfranchised Americans reside in the state.

In North Carolina, where ex-felons are granted voting rights after completing parole or probation, Republican lawmakers began pushing one of the nation’s toughest laws this spring.  It would impose a five-year waiting period and then require the ex-felons to present affidavits from two registered voters vouching for their “upstanding moral character” and win unanimous approval from their local board of elections.  The bill’s primary sponsor, state Senator E.S. “Buck” Newton, told Raleigh’s News & Observer that he considered it a lenient measure, because “the vast majority of people I have spoken to regarding election laws think convicted felons should not be able to vote at all.”

Some recent and older related posts:

September 5, 2013 in Collateral consequences, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, September 04, 2013

Another effective review of the messy Miller aftermath

Juve miller mapThis morning's Wall Street Journal has this new article reviewing all the legal uncertainty which persists in state courts more than a year after the Supreme Court's Miller ruling declared unconstitutional mandatory LWOP sentences for juvenile murderers. (Regular readers may recall similar recent AP and Stateline piecesfocused mostly on legislative responses to Miller discussed here and here.) This new WSJ piece is headlined "Courts Split Over Ruling on Juvenile Life Sentence: Confusion on 2012 Decision Creates a Legal Limbo for Inmates, Their Lawyers," and here are excerpts:

Jeffrey Ragland, sentenced to life without parole in 1986 for his involvement in the killing of a fellow teen with a tire-iron blow to the head, could soon be a free man. That outcome is the result of a ruling by the Iowa Supreme Court last month that found the sentence handed down to Mr. Ragland, now 44 years old, unconstitutional. The court concluded that a June 2012 ruling from the U.S. Supreme Court outlawing mandatory life-without-parole sentences for juveniles should be applied retroactively, rather than only to future cases.

Other high-level courts, including the Minnesota Supreme Court and the Eleventh U.S. Circuit Court of Appeals in Atlanta, have ruled otherwise, finding the Supreme Court's ruling in Miller v. Alabama shouldn't reach backward in time.  Inmates challenging their sentences in those cases had their appeals denied.

This schism over the Miller ruling has helped sow deep confusion among inmates, their lawyers, lawmakers and sentencing-policy advocates.  More than a year after the high court ruling, many of the approximately 2,100 people sentenced as juveniles to mandatory life-without-parole sentences before June 2012 are being held in a sort of legal limbo — with few answers in sight.

"The situation is an absolute mess," said Wendell Sheffield, a criminal defense lawyer in Birmingham, Ala., who represents a juvenile being held in jail on capital murder charges. "We got an opinion from the highest court in the land, but nobody knows how to implement it."... [S]o far, courts have largely divided over a highly technical question of constitutional law: whether the rule established in Justice Kagan's opinion is "substantive" in nature, and therefore should apply retroactively, or "procedural," which would only alter the method of determining a sentence going forward. 

Several Supreme Court rulings in recent years in regard to sentencing, such as the 2002 decision that banned the death penalty for the mentally disabled, were in the former category and applied to sentences already imposed. Justice Kagan's opinion didn't explicitly label the new rule as procedural or substantive....

Advocates for overhauling the juvenile-justice system hailed the Ragland ruling. "An incentive to rehabilitate should be part of most juvenile sentences," said Jody Kent, director of the Campaign for the Fair Sentencing of Youth. "So often we have no idea what a child is going to be like in 10, 20 or 30 years."

A spokesman for Iowa Gov. Terry Branstad, a Republican whose office had argued against Mr. Ragland's new sentence, said victims "must never be re-victimized and can never be forgotten from the process." It is a concern echoed by other victims' rights supporters, who think renewed parole hearings, with their promise of springing convicted murderers from prison, would open old wounds.

Since the Miller ruling, a handful of the 28 states with mandatory life-without-parole sentences for at least some juveniles have changed their laws.  Some, like Delaware and Texas, scrapped the option of such sentences entirely.  Others, like Arkansas and Nebraska, still allow judges to impose the sentence, but also let them consider a life sentence with the possibility of parole.

But the majority of states have yet to change their laws, leaving the status of scores of inmates and defendants up in the air.  Mr. Sheffield said his client in Alabama is "completely stuck in a holding pattern" until the legislature or the Alabama courts give some clarity. "I think the [U.S.] Supreme Court was hopeful that state legislatures would deal with this fairly quickly," he said. "But they haven't — and it's just adding to the chaos."

I suspect the US Supreme Court will eventually feel compelled to take up the issue of whether and how the Miller ruling is to apply retroactively to long ago final cases.  If (and when?) the Justice take up this matter, I think the case could end up being one of the most significant SCOTUS retroactivity decisions since Teague.

A few recent related posts:

September 4, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, September 03, 2013

New hearing ordered by Montana judge in case involving controversial 30-day child rape sentence

As reported in this local article, headlined "Judge orders new hearing on controversial rape sentencing," a high-profile state sentencing case from Montana took another notable twist this afternoon. Here are the details:

Saying the sentence he imposed on a former Billings teacher for the rape of a student may be illegal, Yellowstone County District Court Judge G. Todd Baugh has ordered a new hearing.

In an order filed Tuesday, Baugh set a hearing for Friday at 1:30 p.m. to determine whether the sentence he imposed last week on Stacey Dean Rambold should be revised. Baugh said in the order that the mandatory minimum sentence Rambold should have received appears to be two years, not the 30-day sentence that Baugh ordered on Aug. 26.

Yellowstone County Attorney Scott Twito called Baugh’s order an "unusual occurrence." Twito has been consulting with the Montana Attorney General’s Office to determine whether to appeal the case to the state Supreme Court. "The state will review the issue and we will be prepared to be in court on Friday," Twito said in response to the judge’s new order.

Rambold, a former Senior High teacher who admitted to raping a 14-year-old female student who later committed suicide, received a sentence of 15 years in prison, with all but 31 days suspended. He was given credit for one day previously served.

The sentence, and statements made by Baugh at the hearing last week, drew international attention and calls for Baugh’s resignation.

Recent related post:

September 3, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Bill and Doug's excellent adventure ... debating mandatory minimums in Federalist Society Teleforum

Bill and tedFor anyone who especially enjoys the verbal sparring between me and Bill Otis in the comments to this blog, you may want to quickly become a member of the Federalist Society so you can hear us go at in for a full hour as part of this exciting event being put on this afternoon by the FedSoc folks:

Is Eric Holder Right About Mandatory Minimums?

Criminal Law & Procedure Practice Group

Douglas Berman, William G. Otis

Start : Tuesday, September 3, 2013 2:00 PM

Location:  Federalist Society Teleforum Conference Call

On August 12, U.S. Attorney General Eric Holder announced that the Justice Department will no longer pursue mandatory minimum sentences for what he described as certain low-level, nonviolent drug offenders.  Our experts will discuss Holder’s announcement and approach.  In addition, they will address a variety of other issues related to mandatory minimum sentencing, including the question whether or not mandatory minimums are conceptually sound.

Featuring:

  • Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Prof. Douglas A. Berman, Robert J. Watkins/Procter & Gamble Professor of Law, Moritz College of Law, The Ohio State University

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Post-forum UPDATE: As you might have expected, Bill and I had a grand time talking past each other in an effort to highlight the pros and cons of mandatory minumum sentencing statutes. In all seriousness, I share Bill's perspective appearing in the comments below that "listeners got a full airing of the most persuasive points on both sides." And, valuably, you can still hear for yourself as a podcast of the hour-long discussion is now available from The Federalist Society via this link.

September 3, 2013 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"Mercenary Criminal Justice"

The title of this post is the title of this notable new paper by Wayne Logan and Ronald Wright now available via SSRN. Here is the abstract:

Today, a growing number of bill collectors are standing in line to collect on the debt that criminals owe to society.  Courts order payment of costs; legislatures levy conviction surcharges; even private, for-profit entities get a piece of the action, collecting fees for probation supervision services and the like.  While legal financial obligations (LFOs) have long been a part of the criminal justice system, recent budget cutbacks have prompted an unprecedented surge in their use.  The resulting funds are dedicated to sustaining and even expanding system operations.  With this shift, criminal justice actors have become mercenaries, in effect working on commission.

While a significant literature now exists on the adverse personal consequences of LFOs for offenders, this article is the first to examine their legal and institutional ramifications. Although any single LFO might be justifiable, the cumulative effects of assessed LFOs might overwhelm offenders.  Further, when criminal justice actors find themselves collecting payments that benefit their own institutions or entities, there comes systemic risk of self-dealing.  To mediate these threats, the article proposes use of LFO commissions, which could inventory and assess the propriety of current and proposed LFOs, and monitor their use going forward.

September 3, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Second Circuit panel hints that SORNA might be subject to some Commerce Clause challenges

A helpful reader alerted me to a notable Second Circuit panel opinion today in US v. Robbins, No. 12-3148 (2d Cir. Sept. 3, 2013) (available here), in which the court hints that federal sex offender registration laws might at some point be subject to new Commerce Clause challenges in the wake of the Supreme Court's work in the "Obamacare" cases.  Here is how the opinion in Robbins gets started:

In August 2011, after traveling from New York to Nevada, defendant-appellant Nathan Robbins knowingly failed to update his registration as a sex offender, as he was required to do under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16913.  He subsequently pled guilty to violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required to register under SORNA to travel in interstate commerce and knowingly fail to update his registration.  Despite his plea, Robbins retained the right to challenge the constitutionality of the statutes he admitted violating, and he brings just such a challenge here.

This Court has previously held that Congress acted within its powers under the Constitution’s Commerce Clause when it enacted SORNA.  See United States v. Guzman, 591 F.3d 83 (2d Cir. 2010).  Since then, however, the Supreme Court has revisited and further clarified — if that is the appropriate word — the reach of Congress’s power “[t]o regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8, cl. 3; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”).  Robbins invites us to revisit our holding in Guzman in light of the Supreme Court’s decision in NFIB.

We decline Robbins’ invitation not because his arguments all lack force, nor because the constitutionality of SORNA — particularly when applied within the states — is beyond question, see United States v. Kebodeaux, 570 U.S. ___, No. 12-418, slip op. at 5 (U.S. June 24, 2013) (Roberts, C.J., concurring in the judgment) (“The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.”), but because the constitutionality of SORNA as applied to Robbins remains unaffected by any limitations on Congress’s Commerce Clause power that may be found in NFIB. Still bound by the precedent set in Guzman, we therefore AFFIRM Robbins’ conviction.

September 3, 2013 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, September 02, 2013

Lots of commentary on AG Holder's recent work on mandatory minimums in US News

I have just noticed a whole lot of recent commentary up at US News & World Report concerning AG Eric Holder's big speech to the ABA and his decision to provide new guidance to federal prosecutors concerning the charging of certain drug crimes.  Some of this commentary is assembled on this Debate Club page put up a few weeks ago under the heading "Is Eric Holder Making a Good Move on Mandatory Minimums?". Here are the three pieces from that locale:

In addition, US News has also recently posted these three other commentaries on these same issues:

September 2, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Restoration, Retribution, or Revenge? Time Shifting Victim Impact Statements in American Judicial Process"

The title of this post is the title of this intriguing looking new paper by Tracy Hresko Pearl now available via SSRN. Here is the abstract:

Courts currently permit victims to offer victim impact statement in criminal proceedings in all 50 states and federal jurisdictions. However, victim impact statements introduce serious constitutional problems into criminal cases by (1) creating inconsistencies in sentencing, (2) injecting bias and prejudice into formal courtroom proceedings, (3) giving judges and prosecutors an opportunity to reject testimony that might sway jurors toward more lenient punishments, and (4) leaving defendants with little opportunity to mitigate their impact on decision-makers. Scholars, therefore, have resoundingly called for the exclusion of victim impact statements from criminal proceedings in the United States.

In this article, I take a decidedly different position and argue instead that victim impact statements are, in fact, salvageable. Specifically, I look to lessons from the restorative justice movement and propose a solution that relies on time shifting victim impact statements to the close of criminal proceedings. By removing victim impact statements from trials and sentencing and requiring that they be offered afterwards, their constitutional deficiencies can be virtually eliminated and their numerous benefits preserved.

September 2, 2013 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, September 01, 2013

Assembling reactions of those most critical of AG Holder's announcement on federal pot policy

In these comments to a post about the recent announcement by Attorney General Eric Holder concerning federal marijuana policy, former federal prosecutor Bill Otis asserted that "what the AG is actually saying is that nothing is changing" and that the announcement was really no big deal.  But, as evidenced by some very negative reactions by some drug war supporters, not everyone shares Bill's perspective. 

This Huffington Post piece, for example, reports that police groups "that include sheriffs, narcotics officers and big-city police chiefs slammed Attorney General Eric Holder in a joint letter Friday [available here], expressing 'extreme disappointment' at his announcement that the Department of Justice would allow Colorado and Washington to implement state laws that legalized recreational marijuana for adults." Here is more via the Huff Post report:

"It is unacceptable that the Department of Justice did not consult our organizations -- whose members will be directly impacted -- for meaningful input ahead of this important decision," the letter reads. "Our organizations were given notice just thirty minutes before the official announcement was made public and were not given the adequate forum ahead of time to express our concerns with the Department’s conclusion on this matter. Simply 'checking the box' by alerting law enforcement officials right before a decision is announced is not enough and certainly does not show an understanding of the value the Federal, state, local and tribal law enforcement partnerships bring to the Department of Justice and the public safety discussion."

The missive was signed by the Major County Sheriffs’ Association, the National Sheriffs’ Association, the Association of State Criminal Investigative Agencies, the International Association of Chiefs of Police, the National Narcotic Officers Associations’ Coalition, the Major Cities Chiefs Police Association and the Police Executive Research Forum. Law enforcement, the police groups said, "becomes infinitely harder for our front-line men and women given the Department’s position."

In addition, this round-up from StoptheDrugWar.org reports on some other notable negative reactions from "opponents of marijuana law reform":

"Decades from now, the Obama administration will be remembered for undoing years of progress in reducing youth drug use in America," Dr. Paul Chabot of the Coalition for a Drug Free California said in a statement. "This president will be remembered for many failures, but none as large as this one, which will lead to massive youth drug use, destruction of community values, increased addiction and crime rates."...

"We can look forward to more drugged driving accidents, more school drop-outs, and poorer health outcomes as a new Big Marijuana industry targeting kids and minorities emerges to fuel the flames," warned former US Rep. Patrick Kennedy in a statement issued by Project SAM (Smart About Marijuana), a neo-prohibitionist organization that couches its policy aims amid public health concerns.

"This is disappointing, but it is only the first chapter in the long story about marijuana legalization in the US. In many ways, this will quicken the realization among people that more marijuana is never good for any community," said Project SAM cofounder and director Kevin Sabet....

The taxpayer-funded Community Anti-Drug Coalitions of America (CADCA) also weighed in with disappointment, doom, and gloom. "The Department of Justice announced that it will not sue to block the implementation of laws in Colorado and Washington that legalize marijuana, despite the fact that these laws are in conflict with federal law," said CADCA head Gen. Arthur Dean in a statement. "CADCA and its more than 5,000 community coalitions across the country have been anticipating a response from the administration that would reaffirm the federal law and slow down this freight train. Instead, this decision sends a message to our citizens, youth, communities, states, and the international community at large that the enforcement of federal law related to marijuana is not a priority."

"The fact remains that smoked marijuana is not medicine, it has damaging effects on the developing adolescent brain, and can be addictive, as evidenced by the fact that 1 in 6 youth who use it will become addicted," Dean claimed, adding that the country is in "a growing crisis" as marijuana law reforms take hold. "The nation looks to our Justice Department to uphold and enforce federal laws. CADCA is disappointed in the Justice Department's decision to abdicate its legal right in this instance. We remain gravely concerned that we as a nation are turning a blind eye to the serious public health and public safety threats associated with widespread marijuana use."

Cross-posted at Marijuana Law, Policy and Reform.

September 1, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (13) | TrackBack

Friday, August 30, 2013

Shouldn't ALL federal defendants facing long mandatory minimum sentences seek postponements?

The question in the title of this post is prompted by this notable new federal sentencing piece at ThinkProgess headlined "Judge Postpones Sentencing Until Congress Deals With Mandatory Minimums Reform, Predicts Passage Likely." Here are the details:

In May, a Colorado defendant facing ten years in prison for cocaine possession persuaded a federal judge to hold off on his sentencing, on the possibility that Congress would soon amend federal sentencing law and his prison term would not be quite so draconian. Weighing the likelihood that the the “Safety Valve Act” proposed by bipartisan coalitions in both houses of Congress to give judges more discretion in drug sentencing would pass soon or ever, Judge William J. Martinez concluded that “the balance of the equities and the interests of justice weigh in favor of continuing the date of defendant’s sentence hearing.”

The Court acknowledges that the Act is still in the early stages of legislation and, given the ineptitude of the current Congress, any guess as to whether it will progress and, if so, how quickly, would be pure speculation. However, it is notable that a co-sponsor of the Act in the Senate, Patrick Leahy, is the Chairman of the Senate Judiciary Committee, which increases the likelihood that the Act will at least be brought for a vote in that Committee. Moreover, the Act has bi-partisan support in both the House and the Senate, which significantly increases its chances of passage.

Since then, odds have begun to look even better that the act could pass Congress, if, as Judge Martinez notes, Congress is capable of overcoming its own “ineptitude.” Unlikely interests including the American Legislative Exchange Council and the world’s largest association of correctional officers have endorsed mandatory minimum reform, and U.S. Attorney General Eric Holder brought attention to the problem in an address announcing he would use his own office’s power to limit mandatory minimum sentences.

This week, another defendant in Colorado asked a federal judge to postpone his own sentence. He is facing a statutory minimum of 20 years in jail for conspiracy to distribute cocaine. “Given Mr. Chitty’s age and poor health, such a sentence is likely to translate into a life sentence,” his lawyer argued....

Martinez’s decision to postpone sentencing until November is the latest creative tactic aimed at limiting the burden on both defendants and the prison system of mandatory minimum sentences.

As Martinez points out, defendant Andrew Bartholomew will be held in pre-trial detention until the sentencing regardless, and “[t]he fact that he may end up serving a greater portion of such sentence in pre-trial custody of the United States Marshall rather than post-judgment custody of the Bureau of Prisons is immaterial to the Court.” But it is only a stop-gap measure, and demonstrates his confidence that Congress can accomplish this one, bipartisan aim.

If and whenever a federal defendant is already incarcerated pending sentencing, there would seem to be no obvious public safety risk created by the postponement of final sentencing pending possible (and seemingly likely?) federal sentencing reform.  Moreover, given how extraordinarily difficult it has been for any crack defendants sentenced (even just days or weeks) before the Fair Sentencing Act became law to benefit from lowered statutory minimum sentences, I think all defendants facing mandatory minimum sentencing terms (and competent defense attorneys) would be wise to consider seriously any and every possible legal means to delay for as long as possible their date of sentencing.

I can understand why many federal prosecutors and at least some judges would resist efforts to postpone any scheduled sentencings based merely on the possibility of coming legislative reforms.  But given that all federal prosecutors and most judges have been so resistant to allowing already-sentenced federal defendants to benefit from subsequent legislative reforms in the crack context, I have a difficult time seeing really strong arguments for why federal defendants with reasonable claims that they could benefit from pending federal sentencing bills (especially those defendants who are already incarcerated) need to have their sentences imposed now if there is any real chance that such sentences will be repealed or reformed in the near future.

August 30, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"Protesters Demand Montana Judge Resign Over Rape Sentencing"

The title of this post is the headline of this New York Times report on the continuing controversy over what seems to be a disturbingly lenient state sentence for a child rape conviction.   Here are some of the latest developments in a story that seems to have become a cause for CNN and other media outlets:

Angry that a Montana judge sentenced a former teacher who had admitted to raping a 14-year-old student to only a month in jail, several hundred people gathered outside the Yellowstone County Courthouse in Billings on Thursday, demanding that the judge resign. The victim committed suicide three years after the rape, just before her 17th birthday.

The decision by Judge G. Todd Baugh of State District Court on Monday to suspend the teacher’s 15-year prison term, combined with remarks he made about the rape victim during the proceeding, has sparked outrage in Montana and around the country, with online petitions gathering more than 30,000 signatures in a few days. During the sentencing, Judge Baugh said the victim “seemed older than her chronological age” and was “as much in control of the situation” as the teacher.

The death of the victim, Cherice Morales, who was a student of Stacey Dean Rambold, contributed to delays in the prosecution of the case, which was originally filed in 2008.

Judge Baugh later apologized for his remarks, telling The Billings Gazette: “I don’t know what I was thinking or trying to say. It was just stupid and wrong.” He defended the one-month sentence, however, and in doing so made a remark that further angered many protesters. “Obviously, a 14-year-old can’t consent,” he said, but then added: “I think that people have in mind that this was some violent, forcible, horrible rape. It was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”

Marian Bradley, who heads the Montana chapter of the National Organization for Women and helped organize the rally on Thursday, said that the judge needed to step aside and that state lawmakers needed to consider mandatory sentencing for convicted rapists. “It’s highly unusual to get several hundred people to show up for a protest in Billings,” said Ms. Bradley, a longtime rape crisis volunteer. “Everyone here is outraged.”...

Mr. Rambold, 54, a former technology teacher at Billings Senior High School, pleaded guilty in April to a felony count of sexual intercourse without consent. The charges were first brought in 2008, and his prosecution was deferred in 2010 after Ms. Morales’s suicide raised concerns among prosecutors that a conviction would be difficult to obtain without the victim’s testimony.

Under a three-year agreement, Mr. Rambold attended an outpatient program for sex offenders, and if he had completed it, the charges would have been dismissed. But after he violated the terms of the program last fall, prosecutors brought charges against him again earlier this year and he pleaded guilty to one count, which brought him back to court for sentencing on Monday.

Though I am troubled when folks start calling for a judge's head based on limited information about a seemingly misguided sentencing decision, it is understandable why the judge's sentencing decision here has prompted outrage given the the facts that are publically known about this case. Interestingly, as now reported in this new Billings Gazette article, "Judge G. Todd Baugh, who has drawn international criticism for sending a convicted rapist to prison for only 30 days, issued a sentencing addendum Thursday afternoon, offering a formal explanation of his decision in the case." That three-page addendum may not end the protests, in part because Judge Baugh says in this Addendum that some key facts influencing the sentencing decision that cannot be publically disclosed.

Long-time readers will not be surprised to hear me suggest that Montana lawmakers not respond to one ugly case by passing new mandatory sentencing statutes.  In lots of other settings, we can and do reasonably expect and hope that appellate review will provide a means to correct very wrong trial court rulings.  Intriguingly, this new CNN article reports that the local prosecutor here is considering an appeal and seems to believe that there already was a statutory provision that would have required at least a two-year prison term for the defendant here.  If the sentencing decision causing outrage and protests cannot be reviewed under existing Montana law, I hope that problem becomes the focal point of any legislative reform rather than the creation of new mandatory minimum sentencing statutes.

August 30, 2013 in Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

Thursday, August 29, 2013

DOJ and Obama Administration (finally) report plans concerning federal marijuana enforcement

As reported in this Washington Post piece, today the Obama administration "said it will not stand in the way of Colorado, Washington and other states where voters have supported legalizing marijuana either for medical or recreational use, as long as those states maintain strict rules involving distribution of the drug." Here is more:

In a memo sent Thursday to U.S. attorneys in all 50 states [and available at this link], Deputy Attorney General James M. Cole detailed the administration’s new stance, even as he reiterated that marijuana remains illegal under federal law.

The memo directs federal prosecutors to focus their resources on eight specific areas of enforcement, rather than targeting individual marijuana users, which even President Obama has acknowledged is not the best use of federal manpower. Those areas include preventing distribution of marijuana to minors, preventing the sale of pot to cartels and gangs, preventing sales to other states where the drug remains illegal under state law, and stopping the growing of marijuana on public lands.

A Justice Department official said that Attorney General Eric H. Holder Jr. had called the governors of Colorado and Washington around noon Thursday to inform them of the administration’s stance.

The official said Holder also told them that federal prosecutors would be watching closely as the two states put in place a regulatory framework for marijuana in their states, and that prosecutors would be taking a “trust but verify” approach. The official said the Justice Department reserves the right to revisit the issue....

Until Thursday, the Justice Department and the White House Office of National Drug Control Policy had remained silent about those initiatives, despite repeated requests for guidance from state officials....

The issue has been percolating since Obama took office, and he has repeatedly faced questions about the tension between differing federal and state laws.

This (relatively short) official DOJ Press Release provides this account of the decision:

Today, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute.  To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize.  These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area.

Outside of these enforcement priorities, however, the federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws.  This guidance continues that policy.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance.  These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.   But if any of the stated harms do materialize — either despite a strict regulatory scheme or because of the lack of one — federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

Cross-posted at Marijuana Law, Policy and Reform

UPDATE:  Jacob Sollum has collected some of the early reactions to these developments via this piece at Forbes titled "Reactions To DOJ Marijuana Memo: Dismay, Exuberance, Skepticism."

August 29, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7) | TrackBack

Second Circuit upholds huge securities fraud restitution award (without any real Sixth Amendment discussion)

A unanimous Second Circuit panel opinion this morning in US v. Gushlak, No. 12-1919 (2d Cir. Aug. 30, 2013) (available here) upholds a restitution award of over $17 million based on seemingly debatable fact-finding by a federal district judge.  Here is how the lengthy opinion starts and ends:

Defendant-appellant Myron Gushlak challenges, on various grounds, the May 15, 2012, restitution order entered against him in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge). The order, which was entered pursuant to the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A, awarded a total of $17,492,817.45 to victims for losses stemming from Gushlak's role in the manipulation of the price of a publicly traded security. We affirm....

We return to where we began, the inexpertness of most judges in most technical matters, including the forces afoot in the securities markets and their impact on the prices for any particular security at any particular time. We must therefore rely on the testimony of professionals with appropriate expertise. The district court took great pains in addressing the restitution issues over an extended period of time, requiring repeated efforts by the government to obtain a proper valuation for losses under the particular circumstances, and in light of the peculiar challenges, presented by the case before it. It relied on a qualified expert as a guide. We can identify no clear error of fact or mistake of law that the court committed in reaching, with such care, its result.

Based on a quick scan of the opinion, I see no obvious basis to fault or even question the panel's formal analysis of restitution here in Gushlak. But, as the title of this post suggests, I am quite surprised that the defendant apparently here did not argue that the Supreme Court's June 2012 opinion in Southern Union now requires reconsideration of the circuits' prior rulings that the Sixth Amendment jury trial right is not implicated by judicial fact-finding in support of statutory-based restitution punishment.

Though I am not aware of any major rulings reconsidering this Aprrendi-land issue after Southern Union, I am sure that the decision in Southern Union included significant language that provides a strong basis for such reconsideration. And, with over $17 million dollar at stake and with judicial fact-finding apparently so challenging and contestable in a case like Gushlak, I think a Sixth Amendment argument could have had at least some extra traction in a case like this.

August 29, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, August 28, 2013

Fort Hood mass murderer, Nidal Hasan, gets death penalty ... everybody happy?

This CBS News piece reports on the not-very-surprising outcome of a high-profile capital military sentencing proceeding today: "Thirteen senior Army officers have sentenced Maj. Nidal Hasan to death for carrying out the horrific 2009 shooting rampage at Fort Hood Army base."   Here is more about today's proceedings and what comes next:

The panel's recommendation will now go to a convening authority, the general responsible for assembling the capital court-martial, for review and approval. The convening authority can approve or reduce the sentence.

On Friday, Hasan was unanimously convicted on 13 charges of premeditated murder and convicted of 32 charges of attempted premeditated murder. His conviction carries a mandatory minimum sentence of life in prison and the panel was authorized to consider the death penalty.

During sentencing the government presented 20 witnesses over two days, including soldiers who were injured as well as parents, spouses, and children of those who were murdered by Hasan. Each described how the shooting has impacted their lives while Hasan, who was paralyzed in the shooting and is now confined to a wheelchair, sat about 20 feet away.

On Wednesday, in an emotional 50-minute closing statement, the government revisited the stories of each witness and then told panel, "The acts of 5 November were religiously motivated, but you should not punish him for his religion. You should punish him for his hate."

The government argued against the idea that a death sentence would result in martyrdom for Hasan. "He will never be a martyr because he has nothing to give. Do not be misled. Do not be fooled. He is not giving his life. We are taking his life. This is not his gift to God; this is his debt to society. This is not a charitable act. He is not now and never will be a martyr. He is a cold-blooded murderer," argued prosecutor Col. Michael Mulligan.

As a convicted defendant, Maj. Hasan had the right to give an unsworn statement before the court or to testify under oath. When it was his turn to present evidence at sentencing, he simply said, "the defense rests." He also declined to present a closing argument on Wednesday....

In courts martial, appellate review is mandatory and cannot be waived or withdrawn when the sentence includes death. Under military law, any sentence calling for more than one year of incarceration gets an automatic review by the Army Court of Military Review, which then goes to the Armed Forces Court of Appeals....

It has been more than 50 years since the U.S. military executed a U.S. service member. Army Pfc. John A. Bennett was the last service member to be put to death, on April 13, 1961 after being convicted of the rape and attempted murder of an 11-year-old girl.

In 1983, the Armed Forces Court of Appeals ruled that military capital punishment was unconstitutional, but it was reinstated in 1984 when President Reagan signed an executive order adopting new rules for capital courts martial. According to the Death Penalty Information Center, there have been 16 military death penalty convictions since 1984, but 11 of those sentences have been overturned. The remaining five service members remain on death row....

On Tuesday his stand-by defense counsel submitted a motion to present mitigating evidence that could help Hasan in sentencing.  Hasan objected and Judge Osborn denied the motion, stating a pro-se defendant in the military justice system "is the captain of his own ship."

Col. Joseph Cerreto, a retired former Judge Advocate General, said he cannot imagine that appellate counsel will not be appointed to prosecute the appeal. "Whether Hasan wants it or not, no court is going to order the death penalty or life incarceration without parole without appellate counsel having briefed and argued the case," he said.

Even if Hasan does not cooperate, appointed lawyers can note his opposition in their briefs to the court and then go ahead and raise any legal issues they deem appropriate.

As this story makes clear, the prosecutors and seemingly many connected to the victims of Hasan's crimes were hoping to get a death sentence in the case.  But reports have also indicated that Hasan himself wanted to be sentenced to death.  Thus the question in the title of this post: is anyone upset that Hasan has been sentenced to death?

I know, of course, that death penalty abolitionists do not want to see any jurisdiction actual use the death penalty, as so I suspect there may be a few folks how are not truly happy with this outcome. Still, given than Hasan himself apparently wants to be sentenced to death and further that it seems very unlikely he will be executed anytime soon (if at all), I wonder if even abolitionist might in this kind of case at least by not all too displeased by this sentence of death.

August 28, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

California Gov Brown finding monies for prisons seeking to avoid court-ordered prisoner release

0526-usa-jerrybrown_full_600As reported in this new Los Angeles Times article, California Governor Jerry Brown is now finally taking major new steps to deal with enduring prison crowding issues in his state.   The piece is headlined, "Jerry Brown has plan to ease prison crowding without early releases; To comply with judges' order, Jerry Brown proposes to spend from state's reserve to house excess prisoners in alternate facilities." Here are excerpts:

Gov. Jerry Brown and top lawmakers pledged Tuesday to ease prison crowding without releasing inmates early, laying out a plan to spend hundreds of millions of dollars for alternate housing.

The proposal, which has divided Democratic leaders, would pay for enough beds in privately owned prisons and other facilities to shed more than 9,600 inmates from state lockups by the end of the year, as federal judges have ordered. "This is the sensible, prudent way to proceed," Brown said at a Capitol news conference. "The plan is to find as many cells as needed."

Paying for the extra housing would drain $315 million from the state's $1.1-billion reserve over the next year. The price tag is expected to increase to $415 million for each of the following two years.

The proposal would avoid inmate releases while Brown continues fighting the order to reduce the population in state prisons, which the judges say are unconstitutionally crowded. Plans his administration previously considered could have forced the state to free about 1,000 inmates before their sentences were finished....

Brown faces an array of political challenges in pushing his plan through the Legislature, notably opposition from Senate leader Darrell Steinberg (D-Sacramento). Assembly Speaker John A. Pérez (D-Los Angeles) and Republican leaders in both houses flanked Brown for his announcement, but Steinberg was absent, saying later that he would issue his own prison plan Wednesday.

"The governor's proposal is a plan with no promise and no hope," Steinberg said in a statement. "As the population of California grows, it's only a short matter of time until new prison cells overflow." The Senate leader has called for more spending on mental health and drug treatment programs that can reduce the number of ex-offenders who return to prison, helping to lower the inmate population in the long run.

Brown and Pérez said they also would consider more long-term solutions to prison crowding, such as changes in sentencing laws. Meanwhile, the funding for alternative cells is needed, they said. "We are not going to release a single additional prisoner," Pérez said.

The proposal announced Tuesday would move thousands of offenders from state facilities to privately owned prisons in and outside of California and reopen city-owned detention facilities in Shafter and Taft, in the Central Valley. More inmates could be placed in county jails.

Law enforcement groups representing district attorneys, police chiefs, county sheriffs and others are backing the plan. "The efforts by the governor will help protect our communities," said Nevada County Sheriff Keith Royal.

More key support comes from the politically powerful prison guard union, which has strongly opposed outsourcing of inmate housing. But Brown's plan would use state guards in a privately owned prison in Kern County....

[O]n Tuesday, top Republican lawmakers said the governor was taking the right steps. "Our No. 1 responsibility is public safety," said Senate Republican leader Bob Huff (R-Diamond Bar). "We can't allow dangerous inmates on our streets."

Lawmakers have less than three weeks to consider Brown's proposal before they adjourn. The Assembly budget committee is scheduled to convene Thursday to begin discussions. Brown's effort to comply with the court order has short-circuited some of his previous plans to lower prison spending and end contracts to house inmates out of state. If the Legislature approves his proposal, prison spending will outpace state funding for higher education in the current fiscal year.

Don Specter, a lawyer for inmates who have sued the state over prison conditions, said leasing more prison space would be "an incredible waste of hundreds of millions of dollars for no benefit to public safety." He said the state should consider some early releases, by expanding the credit prisoners can earn for good behavior or freeing inmates who are elderly and sick.

August 28, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, August 27, 2013

In praise of the US Sentencing Commission's new "Quick Facts" series

I am very pelased to see and to be able to report that the US Sentencing Commission has launched a notable new series of reader-friendly publications.  This posting from the USSC's webpage explains:

NEW Quick Facts Publication Series Launched

The Commission presents a new publication series called "Quick Facts." These publications will give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.

I think this is a terrific new innovation coming from the USSC, and I have already learned a few things from these first two publications in the series:

August 27, 2013 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

"Is it fair for sex offenders to stay listed on a registry for life?"

The title of this post is the headline of this recent lengthy article in the St. Louis Post-Dispatch. Here are excerpts:

On one side of the latest debate over Missouri’s sex-offender registry are people such as Daniel Ray Winfrey. In 1991, when Winfrey was 15, he and three others raped and murdered sisters Julie and Robin Kerry at the Chain of Rocks Bridge near St. Louis.

Winfrey testified against his co-defendants in exchange for a 30-year prison sentence. Though back in prison, he has been paroled twice since his conviction. At those times, he was free but still listed on the state’s sex-offender registry website. That website, Gov. Jay Nixon argues, is the only way for most neighbors and others to know of the potential danger while such offenders are among them.

“You wouldn’t want to know if one of these guys moved in next door?” Nixon asked last week. He was defending his veto of a bill that would remove from the website all offenders who, like Winfrey, were under 18 when they committed their crimes.

On the other side are people such as Ali Nemec’s fiancé. He was 17 when he was arrested for having child pornography on his computer. Now 24 and still listed on the registry website, he’s had difficulty at work, has been been turned away from housing and lives with his parents.

“We can’t go to a park, we can’t go to a mall. If there’s an event with our friends near a school, we can’t go,” said Nemec, 23, of St. Peters. “He made a mistake ... (but) he is not the boy that he was. There’s no reason to ruin him for the rest of his life.”

The registry is today’s ultimate “scarlet letter.” Long after they’ve served their time, sex offenders remain barred from parks and schools and limited in their employment and housing options. Their names and faces are posted on the Internet, easily accessible to friends and neighbors.

In Missouri, they stay listed for life, even if they were juveniles when they committed their crimes. The state Legislature passed this year a bill to change that. Nixon vetoed it, potentially setting up an emotionally charged veto fight next month.

The bill would remove from the sex-offender registry website hundreds of offenders such as Nemec’s fiancé and Winfrey, whose crimes were very different but who were both under 18 when they committed them. By one estimate, the bill would cull about 870 names from the more than 13,000 on the site, in addition to future offenders in the same situation.

Those offenders would still be listed on the registry itself, accessible to law enforcement and anyone from the public who requests the information. But the bill would allow the offenders to petition for complete removal from the registry starting five years after the end of their sentences.

“These kids have served their debt to society. They are adults now and haven’t done anything wrong since,” said Rep. Dave Hinson, R-St. Clair, a co-sponsor of the measure. He and others note that listed offenders have high unemployment rates because many employers won’t hire them. “We’re just trying to give them another shot at being productive citizens.”

Nixon, a Democrat, vetoed the bill in July, arguing that it makes no distinction between relatively minor offenders and those who used force or violence. In a news conference at St. Louis police headquarters last week, defending the veto amid the backdrop of uniformed officers, the governor warned that the measure could make Missouri a haven for sex offenders from other states who want to hide from their pasts....

In Missouri, and nationally, the issues connected to sex-offender registries — who should be on them, how long they should stay listed — have been in flux for years, with opposing interests battling to tighten or loosen the requirements.

The concept behind the lists is that because of the high rate of repeat offenses among sex offenders, the public needs to be warned of their whereabouts even after their sentences are served. Civil libertarians have long argued that this amounts to an unconstitutional open-ended punishment, but courts have generally upheld the registries....

Missouri’s system is tougher than some because once a person is on the list, he or she is on it for life, regardless of the severity of the original crime or the offender’s age at the time. Illinois, in contrast, has a lifetime tier and a 10-year tier, based on the details of the crime. People who commit crimes as juveniles have to register, but they aren’t listed on the registry’s public website....

Critics claim that the registry nets are cast so widely they often catch people who most would agree aren’t sexual threats. One commonly cited example are the so-called “Romeo and Juliet” offenders, who had consensual sex with teenage lovers, sometimes when they themselves were teenagers. Critics say those pitfalls in the system are especially ominous in Missouri, where juvenile crimes are listed for life.

August 27, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack

Monday, August 26, 2013

Senator Leahy looking for answers from DOJ on pot policy by September 10 hearing

Everyone eager to find out how the US Justice Department plans to deal with federal marijuana law and policy in the wake of various significant state reform efforts should now mark September 10, 2013 on their calendars.  That's because, according to this post a The BLT, on that Tuesday three weeks from now, Senator Patrick Leahy is going to convene a hearing at which he plans to ask DOJ about its plans. Here are the details:

When it comes to marijuana laws, Senator Patrick Leahy (D-Vt.) wants to know whether the U.S. Department of Justice plans to prosecute or pass.

Nearly a year after voters in two states legalized marijuana possession, the Senate Judiciary Committee chairman once again plans to ask Justice Department officials how they will handle the conflict between state and federal marijuana laws.

Leahy has invited Attorney General Eric Holder and Deputy Attorney General James Cole to testify at a September 10 hearing about Washington and Colorado legalizing small amounts of marijuana for personal use, as well 20 states and Washington D.C. legalizing medicinal marijuana.

But Holder and the Department of Justice have given no public indication of the federal government's planned response to the state initiatives. Holder, testifying in the Senate in March, said he would reveal a policy "relatively soon." In the meantime, Colorado officials told TPM last week that they believe the delay amounts to "tacit approval" from the Justice Department to implement the marijuana laws....

Leahy has written the director of the Office of National Drug Control Policy about the issue, and questioned whether state officials who license marijuana retailers are risking prosecution for carrying out their duties.

"It is important, especially at a time of budget constraints, to determine whether it is the best use of federal resources to prosecute the personal or medicinal use of marijuana in states that have made such consumption legal," Leahy said in a written statement. "I believe that these state laws should be respected. At a minimum, there should be guidance about enforcement from the federal government."

Holder drew criticism from some medical marijuana advocates for a speech earlier this month concerning mandatory-minimum sentences, which are often in play in drug cases. Holder, in his remarks, did not get into the tension between state and federal marijuana laws.

The statement announcing Senator Leahy's plans for this hearing is available at this link from the Senator's website.

August 26, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Terrific Stateline review of states' varied applications of and reactions to Miller

Pew juveMaggie Clark over at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states are deal with the Supreme Court's Miller ruling. the piece is headlined "After Supreme Court Ruling, States Act on Juvenile Sentences," and here are excerpts:

Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that ... more than 300 other Michigan juvenile lifers are entitled to a parole hearing.

Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart).  Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.

Still, there are at least 15 states that have not yet eliminated mandatory life without parole sentences for juveniles.  In many states, legislatures and courts aren’t sure how the Miller decision should apply to offenders such ... already serving such sentences. Nationwide, there are more than 2,000 prisoners in 43 states serving life without parole sentences for crimes they committed as juveniles....

[I]n Pennsylvania, which has largest number of inmates whose sentences are covered by the Supreme Court ruling, the state Supreme Court has been considering the retroactivity question for over a year.  The court’s decision could lead to the resentencing and eventual release of over 400 convicted murderers.

In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving such sentences.  But in Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.

State Supreme Courts in Illinois, Florida, Massachusetts and Colorado will likely consider the retroactivity question this fall, said Marsha Levick, chief counsel at the Juvenile Law Center, a legal advocacy group for youth....

The super-predator theory, popular in the early 1990s, predicted a wave of juvenile violent crime in the following decade. States reacted by treating many juvenile offenders as if they were adults.  Between 1992 and 1995, 48 states increased penalties for juveniles convicted of violent crime, according to the Department of Justice.  But that wave never came: Juvenile crime started to drop in the early 1990s, and it has continued to decline in the years since, as has adult crime.

The harsher juvenile sentencing laws likely were not a factor in the decline, since data show there was no difference in the crime rate for states with mandatory life without parole sentences and those without.  Crime has declined nationwide, and across all demographics....

Considering youth as a mitigating factor is part of the Supreme Court’s broader move toward treating kids differently than adults.  In two decisions banning the death penalty for juveniles for both homicide and non-homicide crimes, the justices relied heavily on neuroscience showing that brains are still growing and changing well through the teenage years, meaning that juveniles are likely to grow out of their criminal behavior, especially if they’re put in a rehabilitative setting.

Still, kids are committing adult crimes, and in these cases, victims’ families were promised life without parole sentences for their family member’s killer, said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette.  “Families were told that (the killers) would never be paroled, and that could have been 20 or 30 years ago,” Yearout said.  “Now the families are being told that’s not true anymore and that’s very frightening.  It’s very important to have truth in sentencing so that victims have assurance that the sentence will actually be what’s set.” Schuette has said he will appeal the Michigan federal court decision.

Most of the 11 states that have changed their laws to comply with Miller v. Alabama have either discouraged the use of life without parole sentences for juveniles, or scrapped them altogether.

But because the Supreme Court only struck down mandatory life without parole for juveniles, and not all such sentences, states are not required to completely overhaul their juvenile sentencing policies.  In Alabama, where the Supreme Court case originated, the attorney general recently advised district attorneys to seek life with parole in two ongoing juvenile murder cases. The Alabama legislature has not yet approved any changes in mandatory sentencing laws to comply with the Supreme Court ruling.

August 26, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Could "momentum for sentencing reform [now] be unstoppable" in the federal system?

The question in the title of this post is prompted by a comment in the final paragraph of this lengthy new piece by Juan Williams appearing in The Hill. The piece is headlined "Amid gridlock, a surprising accord on drug-law sentencing," and here are excerpts (including the final paragraph):

Reporters missed a story earlier this month when Attorney General Eric Holder announced new guidelines for his federal prosecutors in handling non-violent drug crimes.   Holder said President Obama plans to “reach out to members of Congress from both parties” to begin work on legislation to revise federal mandatory sentencing rules for people convicted of non-violent drug crimes....

In this era of deep political paralysis on Capitol Hill it should have been headline news that legislation revising sentencing guidelines for drug convicts is miraculously bringing together conservatives and liberals, even Tea Party conservatives and Obama....

Conservatives, including Republicans such as Texas Gov. Rick Perry, who regularly use tough rhetoric about punishing criminals, have already signed on to the essence of what Holder and Obama want to see in congressional legislation.  Even hardline conservative lobbying groups seem to be on board: “It’s a step in the right direction, though about five years too late,” said Grover Norquist, president of Americans for Tax Reform, in an interview with Time magazine.

My Fox News colleague, former Arkansas Gov. Mike Huckabee, a strong conservative Republican, proclaimed on Twitter: “Finally found something I can agree with Eric Holder on — sentencing too many people to prison for non-violent drug crimes.”

The goal is to reduce the nation’s record prison population, now 40 percent over capacity. Conservatives as well as the president and attorney general are amazingly close to agreeing on the need to permanently revise thinking born during the crack epidemic of the 1980s that still has federal prosecutors asking for heavy mandatory sentences in 60 percent of cases involving any kind of illegal drugs....

Durbin and Lee, Democrat and Republican, have introduced a bill — “The Smarter Sentencing Act” — to revise the fixed sentencing guidelines for non-violent drug offenders.  Leahy and Paul, another pairing across political lines, have introduced a similar bill — the “Justice Safety Valve Act of 2013” — which gives judges more discretion to break away from the current mandatory sentencing guidelines.  This bill has already won bipartisan House endorsements.

After Holder’s speech, Paul seemed to indicate the administration is following his conservative, libertarian lead in wrapping its arms around the idea of reducing prison sentences and cutting the cost that comes with housing so many prisoners.  “I am encouraged that the president and the attorney general agree with me that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety,” Paul said.

In fact, Paul’s home state, Kentucky, as well as other GOP strongholds, including Arkansas and Texas, have already put in place programs to explore the impact of lesser drug sentences.  In Kentucky, as Holder told the ABA, the prison population is being reduced by an estimated 3,000 inmates over the next decade, which will net savings of $400 million. Texas, Holder said, has reduced its prison population by 5,000 in the last year with new approaches to drug treatment and parole. Arkansas cut 1400 prisoners with a similar plan. “Clearly these strategies work,” Holder said.  “They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’  And it is past time for others to take notice.”

Jennifer Palmieri, the White House communications director, confirmed to me Holder’s announcement that the president’s fall agenda will include meeting “with folks in Congress who are pursuing legislation as well as governors and mayors who have done innovative work on this issue.”

The president’s personal attention to the issue could spark some conservative opposition because of their personal antipathy to him.  But with existing support for the idea among Republicans on the Hill and in statehouses nationwide there is also a chance that a White House push on sentencing reform will raise public awareness, generate public support and gain the votes in Congress needed to enact potentially historic changes to 1980s sentencing laws that came out of the “War on Drugs.”

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency — a bipartisan success in passing new laws to reduce the nation’s prison population.

Gosh knows I sure hope there might now be unstoppable momentum to get the Smarter Sentencing Act and/or the Justice Safety Valve Act passed in the next few months.  Indeed, right after AG Holder's big speech (which did, I think, make a few headlines), I advocated in this op-ed for the Los Angeles Times that AG Holder and his boss do everything possible ASAP to turn this reform talk and momentum into legal changes.  But the history of advocacy for federal crack sentencing reform, as well as the aftermath of the FSA, always bring me back to the real-world reality that big talk about sentencing reform is always a lot easier and a lot more common than big action.

Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:

August 26, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, August 25, 2013

"Fifty years ago this month, a young man and an older man sat down and began to plot the end of the death penalty in America."

The title of this post is the first sentence of this interesting piece by Jesse Wegman appearing in the Review section of today's New York Times under the headline "The Death Memo."  Here are more excerpts from what follows:

It was an audacious idea at the time — capital punishment was right there in the Constitution, the Supreme Court had no problem with it, and public opinion remained strongly in its favor.

But to many people, the summer of 1963 represented a new world, one alive with dreams of fairness and equality. That August, across the Mall from the Lincoln Memorial, Supreme Court Justice Arthur Goldberg, a strong opponent of capital punishment, charged his 24-year-old law clerk, Alan Dershowitz, to develop the most compelling legal argument that the death penalty violated the Constitution.

“He said, ‘Don’t find me mass murderers, don’t find me serial killers,’” Mr. Dershowitz, the well-known defense lawyer, recalled recently. Mr. Dershowitz’s resulting memo, described in Evan Mandery’s excellent new book, “A Wild Justice: The Death and Resurrection of Capital Punishment in America,” drew particular attention to racial disparities in the death penalty’s application. Justice Goldberg was impressed, and he worked the memo into a dissent. But so as not to scare off his colleagues, he removed almost every reference to race.

Fifty years later, the death penalty lives on. The Supreme Court suspended it in 1972, holding that the arbitrariness of its application constituted cruel and unusual punishment. In 1976 the court reinstated it.  More than 1,300 people have been executed since, but the rate has fallen over the last decade.

Some justices have categorically opposed capital punishment, like William Brennan Jr. and Thurgood Marshall.  Others have maintained it is indisputably constitutional, like Antonin Scalia and Clarence Thomas.  But as Mr. Mandery notes, three justices who voted to reinstate it later changed their minds....  These justices, more than those with unwavering positions, may serve as a metaphor for tracking our “evolving standards of decency.”

Arthur Goldberg died in 1990. Mr. Dershowitz, whom he liked to call his clerk for life, remembered one of their final conversations. “I said to him, ‘You’re Moses and you haven’t been given the right to cross over to Israel. You’re going to die on Mount Nebo.’ But I promised him in my lifetime we’d see the end of what he did.”

So how will it end? “It’s going to happen the way things always happen at the court,” Mr. Dershowitz said. “The court will appear to be leading, but it will be following.”

August 25, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, August 24, 2013

AG Holder's speech at "Dream March" stresses fairness and "equal justice" (... as federal crack prisoners keep waiting)

Gty_martin_luther_king_obama_tk_130116_wgI just got an e-mail providing this link to the text of Attorney General Eric Holder's prepared remarks which he delivered today in Washington DC as part of the "National Action to Realize the Dream March." Here are some excerpts that caught my eye (with my emphasis added):

It is an honor to be here — among so many friends, distinguished civil rights leaders, Members of Congress, and fellow citizens who have fought, rallied, and organized — from the streets of this nation, to the halls of our Capitol — to advance the cause of justice.

Fifty years ago, Dr. King shared his dream with the world and described his vision for a society that offered, and delivered, the promise of equal justice under law.   He assured his fellow citizens that this goal was within reach — so long as they kept faith with one another, and maintained the courage and commitment to work toward it.  And he urged them to do just that.  By calling for no more — and no less — than equal justice.  By standing up for the civil rights to which everyone is entitled.  And by speaking out — in the face of hatred and violence, in defiance of those who sought to turn them back with fire hoses, bullets, and bombs — for the dignity of a promise kept; the honor of a right redeemed; and the pursuit of a sacred truth that’s been woven through our history since this country’s earliest days: that all are created equal....

But today's observance is about far more than reflecting on our past.  Today’s March is also about committing to shape the future we will share — a future that preserves the progress, and builds on the achievements, that have led us to this moment.  Today, we look to the work that remains unfinished, and make note of our nation's shortcomings, not because we wish to dwell on imperfection — but because, as those who came before us, we love this great country.  We want this nation to be all that it was designed to be — and all that it can become. We recognize that we are forever bound to one another and that we stand united by the work that lies ahead — and by the journey that still stretches before us.

This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice — until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices.  It must go on until our criminal justice system can ensure that all are treated equally and fairly in the eyes of the law.  And it must go on until every action we take reflects our values and that which is best about us.  It must go on until those now living, and generations yet to be born, can be assured the rights and opportunities that have been too long denied to too many.

The America envisioned at this site 50 years ago — the “beloved community” — has not yet been realized.  But half a century after the March, and 150 years after Emancipation, it is finally within our grasp.  Together — through determined effort; through a willingness to confront corrosive forces tied to special interests rather than the common good; and through devotion to our founding documents — I know that, in the 21st century, we will see an America that is more perfect and more fair....

To AG Holder's credit, back in April 2009, his Justice Department went to Capitol Hill to tell Congress that the current Administration then believed (and still believes?) that a commitment to fairness and equal justice required completely eliminating the differential treatment of crack and powder cocaine in federal sentencing law.  But since that time, the Obama Administration has suggested it is content with Congress's decision to merely reduce — from 100-1 to 18-1 — the differential treatment of drug quantities for crack and powder.  Moreover, this Administration has made no real effort to help those sentenced before the passage of the Fair Sentencing Act to get any fair or equal benefits from the new law's reduced crack sentencing terms.

Indeed, from its initial advocacy to limit "pipeline" cases from getting the benefit of the FSA's reduced mandatory minimums, to its continued disinclination to seek to help folks still serving excessively long sentences based on the pre-FSA 100-1 crack laws, the Holder Justice Department's actions suggest they do not really think a commitment to fairness and equal justice calls for doing much of anything to help crack offenders sentenced before August 2013. 

Please understand that I know full well the range of forcefully legal arguments and political considerations which can be made to justify preventing thousands of federal prisoners still serving excessively long crack sentences from getting any benefits from the FSA.  But I also know full well that if Dr. King were alive today, he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws.

Indeed, with current federal prisoners in mind, I think we still are awaiting the day that Dr. King dreamed of and spoke about when he ended his speech in this way:

[I dream of] the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."

And if America is to be a great nation this must become true.  So let freedom ring from the prodigious hilltops of New Hampshire.  Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!  Let freedom ring from the curvaceous slopes of California!

But not only that; let freedom ring from Stone Mountain of Georgia!  Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"

I suppose we all need to just keep dreaming, while still stressing the "fierce urgency of now."

August 24, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (32) | TrackBack

Debate continues after Mizzou Gov vetoes bill to take juve sex offenders off registries

As reported in this AP piece, headlined "Vetoed bill could affect 870 Mo. sex offenders," the Show Me state is showing all of us how a focused debate over juvenile sex offenders can play out these days. Here are the basics:

A Missouri bill removing the names of juvenile sex offenders from public registries could affect hundreds more people than originally estimated and help hide the whereabouts of some high-profile offenders, Gov. Jay Nixon said Wednesday.

The Democratic governor pointed to new figures and specific examples of sex-offenders as he traveled to St. Louis and Kansas City to try to build a case for why legislators should sustain his veto of the bill....  Republican legislative leaders have said the measure is a likely target for a veto override, noting that it passed originally with overwhelmingly support.

Under the bill, people who are younger than 18 when they commit sex offenses would no longer appear on law enforcement websites that list the home addresses and physical description of sex offenders.  Adults who are currently listed because of sex offenses committed as juveniles also could be removed from the public registry five years after their convictions or release from prison.

Supporters of the bill have said the public registries leave a permanent mark on adults who may have been convicted as teenagers for consensual sexual activities with younger juveniles.  They have said such people deserve a second chance outside of the public spotlight.

The bill passed the House 153-0 and the Senate 28-4 earlier this year. Nixon has said the legislation would weaken state laws and undermine public safety....

"The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to help keep their families safe, are not," Nixon said.

The governor's office distributed information about specific sex offenders who could be removed from the list if lawmakers were to override his veto.  Among them is Daniel Winfrey, who was 15-years-old in April 1991, when sisters Julie and Robin Kerry were raped and killed at the Chain of Rocks Bridge over the Mississippi River in the St. Louis area.  Winfrey pleaded guilty to second-degree murder and rape after agreeing to testify against several others involved in the crime.

Other offenders that the governor's office cited as likely to be removed from the public registry included men who had been convicted as juveniles of rape, sexual assault and sodomy against children who were ages 5, 6, 7 and 8.

Nixon spokesman Scott Holste said the legislation would benefit people who committed "heinous" acts. "These aren't Romeo and Juliet people we're talking about here," Holste said.

August 24, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack