Wednesday, February 11, 2015

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders.  Here is how the majority opinion concludes: 

We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution.  Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution.  We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.

Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:

When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....

The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.

 

Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.

February 11, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Update on a decade-long (lack of) effort (not) to fix lethal injection in California

California has long been a state leader in spending lots of time, energy and money on the death penalty without achieving much.  This commentary by Debra Saunders, headlined "Yes, California, there is a death penalty," provides a critical review of the lethal injection part of this story that has played out over the last decade. Here are excerpts:

What happened to California’s death penalty? There has not been an execution since 2006, when a federal judge ruled against the state’s three-drug lethal injection protocol. In 2008, the U.S. Supreme Court upheld three-drug executions. It didn’t matter. Gov. Jerry Brown and Attorney General Kamala Harris both personally oppose capital punishment, but as candidates promised to uphold the law. In real life, they’ve let things slide. Fed up, two men related to murder victims have filed suit to push the state to carry out the law.

Kermit Alexander wants to see the law work on Tiequon Cox, convicted of killing the former football player’s mother, sister and two nephews in 1984 — Cox went to the wrong address for a $3,500 contract killing. Bradley Winchell is sick of waiting for the execution of Michael Morales, who raped, hammered, strangled and stabbed to death his 17-year-old sister, Terri, in 1981. Sacramento Superior Court Judge Shellyanne Chang ruled in their favor Friday after Harris challenged them on the dubious grounds that crime victims and the general public “lack standing” to sue the state.

Brown had directed the state Department of Corrections and Rehabilitation in April 2012 to develop rules that should pass court muster. What’s taking so long? Spokesman Jeffrey Callison answered that his department has been working on “a single drug protocol” but “nationwide, there is a problem with access to execution drugs and that is complicating efforts.”

California has used lethal injection since 1996 to spare condemned inmates unnecessary pain. Even still, U.S. District Judge Jeremy Fogel stayed Morales’ execution as the judge perceived a 0.001 percent chance the convicted killer might feel pain.

In other states not headed by Hamlets, leaders have found ways to anticipate court sensibilities and keep faith with voters.  Many adopted one-drug protocols.  Death penalty foes responded by using their considerable muscle to bar importation and choke the supply of lethal-injection drugs.  Flat-footed Sacramento stuck with the unused three-drug protocol for too long. While Brown’s Corrections Department was working on a one-drug rule, Texas executed 38 killers with pentobarbital. The next time you hear the cerebral governor argue that high-speed rail is doable, remember that he couldn’t pull off a legal procedure that didn’t daunt former Texas Gov. Rick Perry....

In 2012, California voters rejected a ballot measure to get rid of capital punishment. Alexander and Winchell shouldn’t have to sue their government to enforce the law.

As the title of this post is meant to suggest, I do not think officials in California have any real interest in fixing its execution protocol.

February 11, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

New bipartisan federal prison reform bill introduced (with good chance of passage?)

This article from The Hill, headlined "Senators unveil prison reform bill," reports on the latest iteration of a bipartisan federal criminal justice reform proposal.  Here are the details: 

Two members of the Senate Judiciary Committee are reintroducing a prison reform bill they say will achieve a major goal of criminal justice reformers: reducing the size of the federal inmate population. Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-R.I.) pushed the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act at a press conference Tuesday.

The law is meant to reduce the number of people — currently just over 210,000 — incarcerated in federal prisons.  The package proposed by the two senators takes a more moderate approach to reducing prison populations than other proposals that would implement reductions to mandatory sentences.  It also supports programs that help prisoners avoid returning to crime after being released.

Prisoners would undergo a risk assessment to determine whether they present a low, medium or high risk of committing another offense.  Prisoners determined to have a low or medium risk of offending again would be eligible to earn time off of their sentences by participating in recidivism reduction programs, including drug counseling or vocational training, a release from Whitehouse’s office said.

In total, prisoners can earn 25 percent of their sentence off through the law. The bill, though, prevents certain types of prisoners, like those serving time for sex offenses or terrorism, from benefiting from the law. "We want to go forward with what's passable without subjecting the bill to the kind of Willie Horton-type critique that it might receive,” Whitehouse said of the decision not to have the law cover some types of prisoners....

Cornyn and Whitehouse said they are open to debating additional measures, including changing the mandatory minimum sentences for nonviolent drug crimes. But they touted their measure as a good starting point for a larger conversation about criminal justice. “This is a debate that we welcome,” Cornyn said when asked whether sentencing reform could conceivably be added to the bill. “There's a lot of things we can do to improve our criminal justice system, and there's a lot of it being discussed. Things like mandatory minimums, sentencing reform, over criminalization, particularly of the regulatory environment. There are a lot of things we can do better.”

"Given the new open amendment process in the United States Senate, anybody who's got a good idea and 60 votes — 59 plus theirs — can offer it by way of an amendment," he added.

Whitehouse said that having a criminal justice bill moving through the Senate could buoy other ideas for reforming the criminal justice system.  "I think if this bill proves to be a catalyst for further legislation in the area of sentencing reform and criminal justice reform, John and I would have no objection to that,” he said....

Some, including Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), have been reluctant to support changes to the mandatory sentences. But Grassley recently expressed an openness to having his committee consider the idea in an interview at a conservative event last month.

As the title of this post highlights, I have little idea if this CORRECTIONS Act has a real chance at passage. But I am keeping my fingers crossed.

February 11, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 10, 2015

ABA resolution calls for elimination of juve LWOP in the United States

DownloadAs reported in this Robina Institute press release, yesterday "the American Bar Association (ABA) approved a resolution calling for an end to the practice of sentencing children to life-in-prison-without-parole and urging meaningful periodic opportunities for release.”  Here is more from the press release:

The United States stands alone in permitting sentences of life without parole for juveniles. It is the only country other than Somalia that has not yet ratified the Convention on Rights of the Child, which prohibits life without parole sentences for children.  Passage of this resolution signals the ABA’s commitment to reforming U.S. juvenile sentencing laws and aligns with recent rulings by the U.S. Supreme Court affirming that children are “constitutionally different” from adults, and that because children have diminished culpability and greater prospects of reform, they should not be routinely subject to our nation’s harshest penalties.

“With the adoption of Resolution 107C, the American Bar Association has sent a clear message to the legal community and policymakers across the country that children should never be sentenced to die in prison,” said ABA President, William C. Hubbard.  “As the world’s foremost leader and defender of human rights, the United States should ban life without parole sentences for children — a severe violation of human rights. The ABA applauds those states that have already taken steps to reform their laws and urges other states to pass similar reforms as soon as practicable.”

“For any one individual, if over time that person continues to pose a significant risk to public safety, a life sentence may be appropriate,” said Robina Institute Executive Director Kelly Mitchell.  “What this resolution is saying is that the moment of sentencing is not the time to make the judgment that a person is forever irredeemable.”

The control and administration of the ABA is vested in the House of Delegates, which is the 560-member policy-making body of the association.  The House of Delegates meets twice each year, at ABA Annual and Midyear Meetings.  Action taken by the House of Delegates on specific issues becomes official ABA policy.

The full text of ABA Resolution 107C and its assoiated report is available at this link.

February 10, 2015 in Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber

As this AP article reports, now that "executions in Oklahoma [are] on hold amid a constitutional review of its lethal injection formula, Republican legislators are pushing to make Oklahoma the first state in the nation to allow the use of nitrogen gas to execute death row inmates." Here is more:

Two separate bills scheduled for hearings this week in legislative committees would make death by "nitrogen hypoxia" a backup method of execution if the state's current lethal injection process is found to be unconstitutional.

"You wouldn't need a medical doctor to do it. It's a lot more practical. It's efficient," said Rep. Mike Christian, an Oklahoma City Republican and former Oklahoma Highway patrolman who conducted a hearing last summer on hypoxia, or the depletion of oxygen in the bloodstream.

The U.S. Supreme Court currently is reviewing Oklahoma's three-drug method in a challenge sparked by a botched lethal injection last spring in which an inmate groaned and writhed on the gurney before a problem was discovered with an intravenous line. The case centers on whether the sedative midazolam properly renders an inmate unconscious before the second and third drugs are administered. Three scheduled lethal injections in Oklahoma have been delayed pending the high court's review.

Oklahoma officials concede midazolam is not the preferred drug for executions, but death penalty states have been forced to explore alternatives as manufacturers of more effective drugs refuse to sell them for use in lethal injections. Tennessee passed a law last year to reinstate the electric chair if it can't get lethal drugs, and Utah is considering bringing back the firing squad. Oklahoma Attorney General Scott Pruitt has urged legislators to consider the creation of a state compounding pharmacy to produce the drugs itself.

A fiscal analysis of the Oklahoma bill projects it would cost about $300,000 to build a gas chamber at the Oklahoma State Penitentiary in McAlester. A similar bill is pending in the Oklahoma Senate. Christian said unlike traditional gas chambers that used drugs like cyanide that caused a buildup of carbon dioxide in the blood, breathing nitrogen would be painless because it leads to hypoxia, a gradual lack of oxygen in the blood, similar to what can happen to pilots at high altitudes.

Four states currently allow the use of lethal gas — Arizona, California, Missouri, and Wyoming — but all have lethal injection as the primary method, according to the Death Penalty Information Center. No state has ever used nitrogen gas or inert gas hypoxia to execute an inmate. The last U.S. inmate executed in a gas chamber was Walter LaGrand in Arizona in 1999.

A few recent and older related posts:

February 10, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 09, 2015

"Inside The Koch Campaign To Reform Criminal Justice"

The title of this post is the headline of this new Huffington Post piece that reviews a modern sentencing-reform story that is surely becoming familiar to regular readers of this blog.  Here are highlights from the piece which seem to add a few new elements: 

Koch Industries, Inc., the corporation led by conservative billionaires Charles and David Koch, is holding discussions with a coalition of strange bedfellows to tackle criminal justice reform.

In conversations with people like Sen. Cory Booker (D-N.J.) and organizations like the ACLU, the Koch brothers are homing in on reducing overcriminalization and mass incarceration, as well as reforming practices like civil forfeiture.  Progressives, rather than giving the Kochs the stink eye, are welcoming their efforts.

Koch Industries general counsel and senior vice president Mark Holden told The Huffington Post that he met with Booker and his staff a few weeks ago.  The New Jersey Democrat and Sen. Rand Paul (R-Ky.) are co-sponsoring the REDEEM Act, legislation that would give states incentives to increase the age of criminal responsibility to 18, among other reforms.

"We must reform our criminal justice system. It is an urgency more and more recognized by people across the political spectrum," Booker told HuffPost in an email.  "To make change in Congress and beyond I will work with just about anyone who shares my passion for this mission -- that includes Republican members of Congress and other leaders I've begun to work with like Newt Gingrich, Grover Norquist and Charles Koch's team."...

The Kochs have outlined five pillars for reform: The right not to be prosecuted for accidentally breaking the law; fair treatment under the law; competent and fair representation; mandatory minimum reforms; and restoration of rights.

When Koch Industries leaders talk about criminal justice, they at times sound like bleeding-heart progressives.  Holden, for example, called civil forfeiture practices, where police seize assets from someone accused of a crime, "a huge, grave injustice." He also praised Attorney General Eric Holder for taking a stand against the practice, and worried about the longterm consequences of the U.S. prison system.  "[S]omeone makes a mistake sometimes and it falls on the rest of their life, because they can't get a job, they can't vote, can't get a loan, that type of thing,” he said....

[O]organizations that work on criminal justice reform say they believe the Kochs' efforts are sincere and not monetary. "I think there are some people that worry perhaps the Kochs might be prioritizing things like environmental crime, or crimes more likely to impact white people with means," said Alison Holcomb, the national director of the ACLU’s Campaign to End Mass Incarceration. "My experience so far has been that they are genuinely interested in the issues across the board."

Some prior related posts on Koch family efforts in support of criminal justice reform:

February 9, 2015 in Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells

As regular readers may recall from this post, a few months ago a Sixth Circuit panel rejected an Eighth Amendment challenge brought by Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer."  I helped file an amicus brief on in support of Mr. Young's claim in the Sixth Circuit, and now I have  helped put together another amicus brief in support of his SCOTUS cert petition.  

The SCOTUS cert amicus, which can be downloaded below, makes a number of distinct points based in part on the (little-known) fact that the Supreme Court has never reviewed on the merits a federal term-of-years sentences under modern Eighth Amendment doctrines.  Writing along with Prof Michael J. Zydney Mannheimer, this brief starts and ends this way: 

This Court has never addressed how the Eighth Amendment’s proportionality and procedural safeguards for defendants facing the most serious penalties are to be applied when federal courts consider a challenge to a federal sentence. Both the original meaning of the Cruel and Unusual Punishments Clause and modern Eighth Amendment jurisprudence reasonably suggest that the proportionality and procedural safeguards in the Eighth Amendment should have a more robust application when federal courts are reviewing federal sentences, especially when a severe sentence significantly conflicts with state punishment norms.

These realities call for this Court to take up Mr. Young’s petition for certiorari and declare unconstitutional his fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells in violation of 18 U.S.C. § 922(g)(1).  The vast majority of U.S. States do not even criminalize possession of shotgun shells by a convicted felon (surely because mere passive possession of ammunition alone is neither inherently dangerous nor a ready instrument of crime absent possession of a firearm).  The handful of States that do criminalize this possession offense treat the crime as a misdemeanor or set a statutory maximum prison sentence for the offense well below the 15- year mandatory minimum federal term Mr. Young received. Moreover, Amici are unaware of any case from any State or locality in which a defendant received any prison sentence of any duration for offense conduct that involved only the harmless possession of a small number of shotgun shells. Legislative enactments and state practices thus provide in this case potent objective evidence of a national consensus against Mr. Young’s federal punishment....

Perhaps a majority of this Court has come now to the view that the Eighth Amendment functionally and formally provides no restrictions whatsoever on how severe Congress may punish adults through prison terms for conduct it deems criminal, and that only structural provisions like the Commerce Clause “impose[] real limits on federal power” and establish “boundaries to what the Federal Government may do” in the exercise of its police powers through the federal criminal justice system.  Alderman v. United States, 562 U.S. ___ (2011) (Thomas, J., dissenting from the denial of certiorari).  But, as explained above, a sounder originalist and modern understanding of the Cruel and Unusual Punishments Clause is as a constitutional provision that can operate to protect individual Americans from the most extreme application of severe mandatory prison terms for the most minor transgression of federal law.  Indeed, if Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).

  Download Young v US Cert Amicus

Prior related posts:

February 9, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 08, 2015

Highlighting the role of prosecutorial activity in modern mass incarceration

Images (3)I am pleased to see this new Slate piece giving attention to Professor John Pfaff's important and effective analysis of the reasons for modern mass incarceration.  The piece is headlined "Why Are So Many Americans in Prison?: A provocative new theory," and here is how the piece sets up a Q&A with John, along with a key portion of the Q&A explaining the heart of John's statistical insights:

Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high.  It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012.  But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.

What can be done to make the population drop faster? Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes. But according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place.  Having analyzed statistics on who goes to prison, why, and for how long, Pfaff has emerged with a new and provocative account of how the problem of mass incarceration came to be.  If he’s right, the implications for the prison reform movement are huge and suggest the work needed to achieve real progress will be much harder than most people realize.

In a conversation with Slate, Pfaff explains his theory....

Q: So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.

A: Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.

Q: Why would that be?

What appears to happen during this time — the years I look at are 1994 to 2008, just based on the data that’s available — is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3.  So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies.  I can’t tell you why they’re doing that.  No one’s really got an answer to that yet.  But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

As regular readers likely know, I am a big fan of John Pfaff's research.  Anyone concerned about mass incarceration, especially at the state level, need to look at his research, and I think John is very right to focus on the importance of state prosecutorial activities and the relatively limited direct impact of the modern federal drug war on state incarceration realities.  (I must note, though, that John's analysis here is not now really "new and provocative": as this 2009 post notes, John himself highlighted this statistical story in a Slate commentary six years ago and most informed folks know prosecutorial activities have played a huge role in modern mass incarceration.)

That said, in part because John's analysis  is especially focused on state data, I fear he misses how the modern drug war, fueled especially by the growth of the federal criminal system, provides one big explanation for why and how "over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges."   In the 1980s and before, the feds generally prosecuted significantly less than 10,000 drug cases each year.  But thanks largely to the tough new drug penalties (and added prosecutorial resources) that the Congress put in place by the end of the 1980s, the feds started prosecuting tens of thousands more drug offenders each year and averaged more than 25,000 yearly drug prosecutions through the 2000s.  These additional federal prosecution of drug offenders surely freed up state prosecutors to focus more time and attention on other cases/offenders and allowed them to get "much more aggressive in how they filed charges."

In other words, in the 1980s and before, the feds prosecuted far less than 100,000 drug offenders each decade, and all the other folks arrested by states were not as aggressively prosecuted because state prosecutors saw limited value in cycling lots of lower-level drug offenders through their system.  But throughout the ’90s and 2000s, the feds prosecuted well over 500,000 drug offenders; that freed up space, time, energy for other folks arrested by states to be aggressively prosecuted.  (These forces also had a synergistic impact as new tough three-strikes laws in states and at the federal level extended greatly the terms of those repeatedly cycling through criminal justice systems.)

My point here is not to assert that John's data analysis is misguided or inaccurate in any way.  But I do think it important --- indeed, essential --- to see how the drug war and other toughness effort at both the federal and state level fed off each other in order to change state prosecutorial behaviors in the way John highlights.  And, perhaps most importantly, all of this needs to be studied closely to fully understand how we got into our modern costly mass incarceration mess and how we might best find out way out.

Prior posts about Prof. John Pfaff's important research:

February 8, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, February 07, 2015

Ohio Gov John Kasich advocating significant resources devoted to addiction services for prisoners

As reported in this local article, headlined "Addiction programs for incarcerated included state budget," Ohio's GOP Governor John Kasich is now showing through his latest budget proposal that he remains deeply committed to "smart on crime" sentencing and prison reforms. Here are the details:

Eight of 10 people come to Ohio prisons with a history of abusing drugs and alcohol.  Most leave without treatment or a recovery plan, with predictable results. On the outside, they return to old addictive habits that often trigger criminal behavior.

Gov. John Kasich’s proposed state budget calls for a $61.7 million collaboration by two agencies to treat offenders both behind bars and once they are released. “This is not tinkering with recovery programs. This is going to be a remarkable leap forward, addressing a large group of people coming to our prisons who in many cases aren’t being served at all,” said Gary Mohr, director of the Ohio Department of Rehabilitation and Correction.

The big-picture goal is to help ex-offenders succeed outside prison and, in the long run, to cut prison costs charged to taxpayers. Statistics show that about 10 percent of inmates who get alcohol and drug treatment later return to prison, compared with about 27 percent of those who don’t get treatment.

The change pushed by Kasich would shift responsibility for inmate-recovery services from Rehabilitation and Correction to the Department of Mental Health and Addiction Services. It involves moving 120 people who work for prisons to the mental-health agency budget at a cost of $12.5 million annually. They will, however, continue working in the same jobs.

Prison officials estimate that about 4,500 of the roughly 30,000 inmates with moderate to severe addiction problems are getting recovery services. Officials from the two agencies won’t predict how many more inmates will be treated until the program is in place, but Stuart Hudson, prison chief of medical services, said it will be a “substantial increase.”...

Mental-health director Tracy Plouck said much of the $61.7 million, beyond the $25 million to absorb the DRC staff, will go for community recovery services once inmates return home.

Prison officials have struggled for years with an influx of inmates who commit nonviolent crimes, many of them related to their addictions.  For about 20 percent of new prisoners, a drug charge is their most serious offense.  Many are in and out of prison so quickly there isn’t time or resources to get them involved in recovery programs, Mohr said.

“We’re not reaching enough people and we’re not reaching them early enough,” Mohr said. “Ohioans are paying $22,500 a year for each prisoner, and we should be doing more than warehousing them. We are committed to helping people improve their lives.” Ohio’s recidivism rate of 27.1 percent is far better than the national average of over 40 percent.

February 7, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, February 06, 2015

Bipartisan Recidivism Risk Reduction Act introduced in US House

This notable press release from the office of Representative Jason Chaffetz provides the details of a federal prison reform bill that would be extremely consequential if it can get enacted. Here are excerpts from the release providing basic details about the bill:

Republicans Jason Chaffetz (R-UT) and Trey Gowdy (R-SC) joined with Democrats Cedric Richmond (D-LA) and Hakeem Jeffries (D-NY) to introduce H.R. 759, Recidivism Risk Reduction Act. This bipartisan legislation uses risk assessment tools to reduce recidivism, lower the crime rate, and reduces the amount of money spent on the federal prison system....

H.R. 759 would implement a post-sentencing dynamic risk assessment system to identify an inmate’s risk of recidivism. Then, using evidence-based practices developed by states, effective recidivism reduction programs are identified and utilized. The bill would then provide incentives for inmates to participate in those programs.

Ultimately, inmates could earn credits toward an alternative custody arrangement – such as a halfway house or home confinement – at the end of their term. Such arrangements reduce the cost of housing an inmate in the federal prison system.

The program will be phased in over a five year period. The savings will be reinvested into further expansions of proven recidivism reduction programs during this time. After that, it is anticipated that the savings can be used either for other Justice Department priorities such as FBI agents, US Attorney offices etc., or the savings can be used to help reduce the deficit. Similar programs have found success on a state level in several states including Texas, Oklahoma, Ohio, and North Carolina.

In addition, Reps. Chaffetz and Jefferies introduced HR 760, the Bureau of Corrections Renaming Act. This bipartisan legislation would simply rename the “Bureau of Prisons” – under the jurisdiction of the Department of Justice – the “Bureau of Corrections.” Over ninety percent of all federal prisoners will eventually be released. This small change will help the Bureau remember that its mission is not just to house people, but also to rehabilitate prisoners such that they are productive members of society when released. Forty-eight states throughout the country use the word ‘corrections’ in describing their prisons.

The Attorney General is directed to consult with appropriate federal agencies and stakeholders to design, develop, implement, and regularly upgrade an actuarial Post Sentencing Risk Assessment System which shall include one or more comprehensive risk and needs assessment tools, which shall be peer-reviewed and validated, and periodically re-validated, on the federal prison population for the specific purposes of this Act.

Prisoners will be divided into high, moderate, or low risks of recidivism. Prisoners will be periodically re-evaluated and have the opportunity to progress to low risk of recidivism. Prisoners who misbehave can move the other way – i.e. from low to moderate risk of recidivism. Bureau of Prisons shall incentivize prisoners to reduce their individual risk of recidivism by participating in and completing recidivism reduction programs.

Prisoners who have committed more serious crimes such as child abuse, terrorism, and violent felonies, are not eligible for the program.

If a prisoner is successfully participating in and/or completing programs, holding a prison job, participating in educational courses, participating in faith-based services and courses, or delivering programs or faith-based services and courses to other prisoners, the prisoner can earn [certain credits based on their risk levels]. Low risk prisoners will be eligible for consideration for alternative custody such as halfway houses, home confinement, ankle bracelets, etc.

This is not automatic – it must be reviewed and approved by the prison warden, the chief probation officer in the relevant federal district, and a judge in the relevant federal district.

This is not a reduction in sentence – prisoners are not being released and nothing in this Act affects Truth in Sentencing requirements that prisoners complete at least 85% of their sentence.

Some recent related posts:

UPDATE:  Not to be overlooked (even though I managed to overlook it), this past week also saw another notable bipartisan federal bill of not introduced in both houses of Congress.  This press release from the office of Senator Rand Paul provides the basics:

Today, Senator Rand Paul (R-KY), Senator Patrick Leahy (D-VT), Representative Thomas Massie (R-KY), and Representative Bobby Scott (D-VA) introduced the Justice Safety Valve Act (S. 353/H.R. 706) in the Senate and House of Representatives.  The Justice Safety Valve Act would give federal judges the ability to impose sentences below mandatory minimums in appropriate cases based upon mitigating factors.

February 6, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Highlighting President Obama's pitiful pardon record

ZZoTyPLThis lengthy USA Today piece, headlined "The 50-year-old pardon: Obama picks safe clemency cases," provides yet another review of the now-too-familiar story of President Obama awful record on his use of his clemency authority. Here are excerpts:

Of the 64 pardons President Obama has granted over six years, half are for offenses that happened before 1989. Six are from the 1960s. On average, 23 years have elapsed between the sentencing date and the day Obama has granted a pardon or commutation — an all-time high. A century ago, three or four years was the norm.

It's part of a decades-long trend toward presidents being more cautious in their pardon power, picking older and safer cases for clemency. But Obama has been the most cautious of all, and some critics say he is shirking his constitutional power — some say duty — to "grant reprieves and pardons for offenses against the United States."

"'Safe' is being nice. I would almost say irrelevant. The people who are being pardoned are people on Social Security," said P.S. Ruckman Jr., a political scientist who studies pardons. "The people who need pardons are young and need to establish themselves and get a job, get a Pell grant and go to college."...

Many of Obama's pardons are for old, obscure and sometimes trivial crimes:

• Ronald Lee Foster, of Beaver Falls, Pa., was convicted of mutilating coins in 1963. He had shaved the edges off pennies to fool vending machines into thinking they were dimes. He was pardoned in 2010 at the age of 66.

• David Neil Mercer of Grand Junction, Colo., was convicted in 1997 of violating the Archaeological Resources Protection Act by disturbing Indian artifacts in Utah. He now owns an automotive business and was pardoned last year at the age of 56.

• Bobby Gerald Wilson, of Summerton, S.C., was convicted in 1985 of aiding and abetting in the possession and sale of illegal American alligator hides. He was pardoned in 2011 at the age of 61.

Obama has issued fewer pardons than any president since James Garfield, who served just 199 days in office, and fewer than any two-term president since George Washington, according to Ruckman, a Rock Valley College professor who tracks clemency trends on the blog Pardon Power.

The few pardons Obama is granting often come late in life — sometimes to people on their deathbeds. Albert Byron Stork, a defense attorney from Delta, Colo., was convicted of tax evasion in 1987, when he took money from his fugitive brother for the down payment of a house. He received a pardon the same day as Auvil — and died of brain cancer two weeks later.

The White House said the president has an "ongoing commitment" to granting clemency. "The president believes strongly that a critical component of our criminal justice system is for deserving and qualified applicants to have the ability to petition for clemency," said White House spokeswoman Brandi Hoffine. She said Obama "looks forward to reviewing additional requests for clemency in the coming months."

The Office of the Pardon Attorney, in the Justice Department, is responsible for sifting through the hundreds of applications received each year.... Pardon Attorney Deborah Leff's recommendations go to Deputy Attorney General James Cole, then to White House Counsel Neil Eggleston, and ultimately to the president. That's how it works in principle. But in practice, the Justice Department is run by career prosecutors who are often hostile to those seeking pardons, defense attorneys say.

"They churn out a steady stream of no," said Sam Morison, a lawyer specializing in pardon cases who worked in the Office of the Pardon Attorney in the Clinton, Bush and early Obama administrations. "That doesn't mean that the president has to do what they say. But the president almost always does what the Justice Department recommends, even when he doesn't agree with what the Justice Department recommends." But the Justice Department has to recommend some favorable applications, and they tend to be older, easier cases, he said....

Delegating the decisions to the Justice Department helps to depoliticize the pardon power, but it's also led to its own problems. An internal Justice Department investigation found that President George W. Bush's pardon attorney withheld information from the White House about a commutation he opposed. And in 2010, the nonprofit news organization Pro Publica published an investigation in the Washington Post revealing that, under Bush and Obama, white criminals were four times more likely to get a pardon than black offenders.

Last year, the Justice Department announced a clemency initiative in an attempt to rectify some of the inequities in the system. Inmates who would have gotten lighter sentences under current federal guidelines were encouraged to apply to have their sentences commuted, or reduced.  But the Justice Department says that's a separate issue from pardons. 

Just a few of many recent and older posts concerning federal clemency practices:

February 6, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, February 05, 2015

More than three decades after crime, SCOTUS decides it still needs to stay Texas mass murderer execution

As reported in this AP piece (with my emphasis added), a "Texas inmate set to be executed next week for fatally shooting four men at an airplane hangar more than 30 years ago won a reprieve Thursday from the U.S. Supreme Court."  Here are the details:

Lester Bower Jr., 67, among the longest-serving Texas death row inmates, had been scheduled for lethal injection Tuesday. The justices gave no reason for the reprieve, saying only that it would be lifted automatically if they deny an appeal or act on it.

Bower was convicted in the October 1983 deaths at a Grayson County ranch about 60 miles north of Dallas. Authorities found parts from a small ultralight airplane at the hangar at his home in Arlington, a Dallas suburb. Prosecutors also tied unusual Italian-made .22-caliber bullets used in the slayings to similar ammunition purchased by Bower, a federally licensed gun dealer.

In their appeal to the high court, Bower's lawyers said jurors who decided on his death sentence had faulty instructions that didn't allow them to consider mitigating circumstances that he had no criminal record, was a married father of two, college educated and employed as a chemical salesman.

Since his 1984 trial, court rulings have refined instructions to Texas capital murder trial juries to account for mitigating circumstances. Several condemned inmates from that era - but not Bower - have received new court-ordered punishment trials. Bower's attorneys also contended that prosecutors misstated the rarity of the fatal bullets, and that his long time on death row and numerous rescheduled execution dates amount to unconstitutional suffering.

State attorneys argued that courts have rejected appeals about the jury instructions, that information about the bullets was available at the time of his trial and that Bower's lawyers' persistent appeals account for the lengthy case. "Any delay is purely of his own making," Stephen Hoffman, an assistant Texas attorney general, told the justices in a filing this week....

Those killed were building contractor Bob Tate, 51; Grayson County Sheriff's Deputy Philip Good, 29; Jerry Brown, 52, an interior designer; and Ronald Mayes, 39, a former Sherman police officer. Good's wife, Marlene Bushard, said the delay was "very frustrating since we were so close."

"I am hoping once this is done he will be out of options, we can get another death warrant and end this," she said in an email.

As this timeline of products reveals, over the last 30 years Apple has been able to go from its Apple IIe personal computer to a modern (multi-generation) iPhone and iPad and iMac, and the latest Apple machines now put more computing power into our hands than NASA had at its disposal in the early 1980s.  Meanwhile during this same period, our legal system has been unable to conclusively determine whether a Texas mass murderer was lawfully sentenced to death. Hmmm.

February 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Could 2015 be the year Congress finally gets serious about criminal-justice reform?"

The title of this post is the subheading of this new Mother Jones piece which carries this main headline: "On These 5 Things, Republicans Actually Might Work With Dems to Do Something Worthwhile." Here are highlights (mostly) from the start and end of the piece:

Recently, bipartisan momentum has been building behind an issue that has historically languished in Congress: criminal-justice reform. Recent Capitol Hill briefings have drawn lawmakers and activists from across the political spectrum—from Sen. Al Franken (D-Minn.) to Koch Industries general counsel Mark Holden, whose boss, conservative megadonor Charles Koch, has made reform a key philanthropic priority.

The emergence of this unlikely coalition has been building for some time: Liberals have long been critical of the criminal-justice status quo, and many "tough on crime" conservatives — growing concerned by the staggering costs of mass incarceration and the system's impingement on liberty — are beginning to join their liberal and libertarian-minded colleagues. In the past, bills aimed at overhauling the criminal-justice system have stagnated on Capitol Hill, but the bipartisan players who are coming together to push for change means that there are some reforms that could realistically gain traction, even in this divided Congress....

Earned-time credits....

Easing up mandatory minimums....

Juvenile-justice reform....

Reducing recidivism....

Sealing and expunging records....

Despite the bipartisan efforts, many experts still believe that there are plenty of issues that could pose serious obstacles to compromise. Beyond the disagreement on mandatory minimums, there's potential conflict on the role of for-profit prisons, which conservatives praise and Democrats like Booker loathe. Additionally, support for loosening drug penalties — particularly for marijuana — is growing broadly popular, but powerful Republicans remain vocal opponents....

There is one especially powerful force pushing along reform: The federal government is expected to spend nearly $7 billion on prisons this year, and conservatives in charge of Congress will be under pressure to bring down costs. "With every Congress, I'm hopeful for reform," Hurst says. "But this Congress' argument is based on money, not humanity, which is why it's more realistic that it'd happen."

February 5, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, February 04, 2015

A positive perspective on possible prison reform emerging from Congress

This lengthy new article in The National Journal provides an interesting and informative look at the politics and people at the center of federal sentencing and prison reform discussions. The piece's headlined highlights its themes: "This Is How Justice Reform Can Actually Happen This Year: Chuck Grassley's power will change the dynamics of sentencing reform. But there's still a bipartisan way forward in the Senate." The full piece is a must-read for anyone closely following congressional reform realities, and here is how the article starts:

The rise of Sen. Chuck Grassley to the head of the Judiciary Committee has made a lot criminal-justice reform advocates nervous.

Four months ago, before Republicans took back the Senate, it appeared that reducing mandatory minimums had overcome crucial hurdles.  The Smarter Sentencing Act, which would reduce mandatory minimums for some drug offenders, passed out of committee in January 2014 and attracted a roster of high-profile backers, from former GOP vice presidential nominee Paul Ryan to progressive leader Elizabeth Warren of Massachusetts. Potential 2016 presidential candidates such as Sens. Rand Paul and Ted Cruz had decried mandatory minimums.  Even President Obama and the Koch brothers, who have spent millions against him, agreed the sentencing requirements had to be reduced.

But, like many conservatives who came to power in an era when Republicans branded themselves as the "tough on crime" party, Grassley has made it clear that he sees the steady reduction in violent crime in the United States over the last 30 years as a direct reflection of more-effective policing strategies.  And he believes that mandatory minimum laws that ensure criminals stay locked up have been key to that progress.

Grassley's posture toward mandatory minimums has given some advocates pause. "I do think we can work with him," Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, said of Grassley.  "He knows some changes need to be made, but it does influence how far you can go if the chairman stands opposed."

In a Democratic-controlled Congress, many saw a clear path for reducing mandatory minimums.  A handful of vocal GOP supporters have continued to say justice reform should remain a key priority in the new Senate.  But with Grassley in charge, the path forward for criminal-justice reform will likely look very different.

And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas introduces a rare bill that could actually get through Congress and be signed by the president.  That legislation would be similar to what was known as the Recidivism Reduction and Public Safety Act in the 113th Congress.  That bill was also bipartisan but far less contentious than the Smarter Sentencing Act among the Republican rank-and-file. Even Grassley voted it out of committee last year, where it passed 15 to 2.  Many of the same members are still sitting on the committee with a few GOP additions, including Thom Tillis of North Carolina and David Perdue of Georgia.

The bill next week will focus on transitioning prisoners back into the community after they have served their time. It requires that each inmate undergo a risk assessment to evaluate his or her propensity for recidivism.  Then it allows those deemed medium- and low-risk to earn credits for participating in programs such as job training or substance abuse counseling.  Certain well-behaved and low-risk offenders could then use those credits to serve out the final days of their sentences under some kind of community supervision.

Grassley's office insists that it is early, and no decisions have been made on what bills will make it through the committee.  There is an attorney general to confirm and more on the committee's docket that comes before discussions about far-reaching justice reform.  But, shuffling down the hallways of the Dirksen Senate Office Building in January, Grassley rattled off his top three goals for the committee. "Juvenile-justice reform, patent trolling, and ... prison reform," he said.  "There are some things where there is a pretty good shot of getting some bipartisan agreement."  And, if the Senate GOP's No. 2 introduces the bill, it will make it harder for Grassley to ignore.

February 4, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sign of the drug war times: risk-management review of state drug-law reforms

There are many diverse signs, and many diverse consequences, of our modern (retrenching?) drug war, especially with respect to state-level reform of marijuana prohibitions.  One such interesting sign and consequences arrived in my e-mail this morning via this link to this post by a risk management firm titled "Recap of Drug-Related State Legislation Passed in 2014." This helpful resource is introduced this way:

One trend that hiring managers should take note of in 2015 is the increased fragmentation of state drug test regulations.  Exactly half of all states passed legislation in 2014 that touches upon or completely regulates drug testing in some way or another.

With more and more attention being given to developments in medical and recreational marijuana laws, it may be hard to imagine that the United States is not trending away from drug testing in the workplace.  It is true that public opinion about certain controlled substances is shifting, but legislation is still being passed that creates provisions for drug testing employees, banning synthetic substances, and penalizing intoxicated motorists.

The diversity of laws and court decisions produced in 2014 is proof that the line between pro-employer and pro-employee is vague and becoming more difficult to draw-out.  As laws in some states provide new “rights” to individuals to consume intoxicating substances, other laws in those states as well as other places reinforce the rights of employers and citizens seeking to ensure safe workplaces and communities.

I am not, of course, an expert on labor and employment law. But this posting provides perhaps more evidence that labor and employment lawyers need to be experts on modern drug law reforms in order to serves their clients effective.

February 4, 2015 in Collateral consequences, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 03, 2015

NACDL seeking examples of federal cases impacted by "trial penalty"

Through some of my work with folks at the National Association of Criminal Defense Lawyers, I have learned that NACDL is now, as part of its Trial Penalty Project, actively seeking examples of the “trial penalty” federal defendants often face as they consider whether to exercise their right to go to trial based on the great discrepancy between post-trial sentences and those offered in the plea process.   Human Rights Watch issued a report summarizing extensive statistical and anecdotal evidence of this trial penalty focusing on federal drug defendants, and NACDL is working toward producing companion report focusing on the trial penalty in federal cases not involving drug prosecutions. 

NACDL seeks, via a simple on-line survey, help in collecting examples and data for use in the report. NACDL is interested in examples such as (1) cases where a defendant after trial received a far more severe sentence than had been offered during plea negotiations; (2) cases where a defendant pleaded guilty principally because of a fear that any sentence imposed after trial would be dramatically higher than the plea offer; and/or (3) cases where defendant(s) convicted at trial received disproportionately severe sentences given their culpability as compared to co-defendants who pleaded guilty.

If you know of a federal case that fits these categories — or that otherwise reflects the “trial penalty” federal defendants often face in non-drug-offense settings — please take a few minutes to complete the online questionnaire at the NACDL website.

February 3, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System"

The title of this post is the title of this timely new report from The Sentencing Project.  Here is a partial summary of its contents from an e-mail I received earlier today:

The report identifies four key features of the criminal justice system that produce racially unequal outcomes, beyond the conditions of socioeconomic inequality that contribute to higher rates of some crimes in marginalized communities, and showcases initiatives to abate these sources of inequity in adult and juvenile justice systems around the country. In many cases, these reforms have produced demonstrable results, including:
  • Indiana amended its drug-free zone sentencing laws, which imposed harsh penalties on a defendant population that was over 75% African American in Indianapolis.
  • Multnomah County (Portland), OR, revised and removed bias in its risk assessment instrument for determining juvenile detention, reducing African American and Latino youth detention levels by half.
  • Berks County, PA, reduced the number of youth in secure detention – who were primarily youth of color – by 67% between 2007 and 2012 in part by increasing reliance on alternatives including non-secure shelters and expanding use of evidence-based treatment programs.
  • The Milwaukee County prosecutor’s office eliminated racial disparity in charges of possession of drug paraphernalia by instituting case oversight and emphasizing diversion to treatment programs and dismissals.

February 3, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos

Download (1)If the wealthy truly have extraordinary influence on modern federal politics and policies, a notable defendant serving a mandatory 55-year sentence as a result of a few small marijuana sales ought to be getting out of prison before too long.  I say this because, according to this Daily Beast piece, my former client Weldon Angelos is now a "poster boy" for the latest Koch-brothers-backed political effort.  This piece is headlined "The New Face of the Koch Campaign" and here is its subheading: "A father of two was sentenced to 55 years in jail for selling pot. The Koch brothers want to help set him free and make him the face of their new campaign for criminal justice reform."  Here are excerpts:

Weldon Angelos could have hijacked a plane and spent less time in jail.  But due to mandatory sentencing laws, the father of two was sentenced to 55 years in jail for selling pot — a term so long even the judge who gave it to him protested its injustice.  A group backed by the Koch brothers agrees, and is now fighting to get him out of prison.

Angelos is an extreme case: even though the crime was considered non-violent, Angelos carried a firearm during a series of marijuana sales to a Salt Lake City police informant —  so federal mandatory minimums required that he be put in jail until he’s 80 years old. Judge Paul Cassell protested the sentence when he was forced to make it in 2004, a move he told The Daily Beast he considers “the most unjust, lengthy sentence that I had to hand down.”...

Angelos is now 35 years old and has spent some 11 years behind bars.  He has more than 40 years left to go.  Even though his crime was non-violent, parole is not an option at the federal level.  His only hope for relief from his sentence is an order by the president.

“If we’re going to deprive someone of liberty, and deal with the high cost of incarceration, it better solve a problem.  And in this case, it doesn’t solve any problem,” argued Mark Osler, Angelos’ lawyer, who filed a clemency petition on his behalf in 2012.

This is where the Koch brothers come in.  The case is being highlighted by Koch-backed group Generation Opportunity, which targets millenials, in a broader campaign to press for criminal justice reforms this year.  They will kick off the campaign with a documentary highlighting Angelos’ predicament, premiering at Washington, D.C.’s Newseum next week. “[This year] offers a unique moment in history in which people of different backgrounds and political leanings are coming together to facilitate a substantive dialogue on how to fix [the criminal justice system],” said Evan Feinberg, the group’s president. “We can work towards a more just system that reflects the rule of law without overcriminalizing non-violent offenses.”

The new campaign will target the overcriminalization of non-violent crime, mandatory minimum laws, and helping criminals who have served their sentences reintegrate into society.  The demilitarization of police and the excesses of civil asset forfeiture will also be addressed.

Generation Opportunity worked with Families Against Mandatory Minimums on the documentary.  FAMM founder Julie Stewart was in the room during Angelos’ first sentencing hearing.  It was, she said, a severe example of a worrisome trend in the criminal justice system....

“A lot of people just thought that because of the amount of time my brother was [sentenced to], he had done something terrible, just because of the ignorance that is out there about mandatory sentencing,” said Lisa Angelos, Weldon’s older sister and advocate. “Before the case, I had no idea that this was possible in America.”  The judge who was forced to hand down the sentence, Paul Cassell, said the Angelos case is an example of “clear injustice marring the public perception” of the federal courts — and victimizing taxpayers who have to pay to keep him locked up.

“We have in place in our country today some very draconian penalties that distort our whole federal sentencing scheme,” Cassell said.  “When people look at a case like Weldon Angelos and see that he got 55 years, and they see other cases where victims have gotten direct physical or psychological injuries and don’t see a similar [result] from the system, they start to wonder if the system is irrational.”

When he was sent to prison, Angelos’ children were small, now both are in their teens. Without their father, the family fell on hard financial times.  His children rarely talk to him, Weldon’s sister says, because they can’t afford a cell phone on which they can be reached.  “When I tell him stories about his kids, you can tell how very hard it is for him to hear it… to know that he can’t be here,” Lisa Angelos said. “It’s destroyed him in many ways.”

The Angelos’ have waited for more than two years for word on their executive clemency request.  The average successful clemency request takes approximately four years, according to his lawyer.  Weldon Angelos deserves clemency, Osler said, because his sentencing “doesn’t correlate in this country with what’s wrong, and what those wrongs deserve.”

Long-time readers are likely familiar with the Angelos case, which came to my attention on a few months after I started this blog 11 years ago. I litigated pro bono, unsuccessfully, Weldon's 2255 motion with claims (that I still find compelling) that his prosecution and sentencing involved violations of the Second, Fifth, Sixth and Eighth Amendments. I continue to hope Weldon will receive clemency or some other form of relief soon not merely to remedy the injustice of his extreme prosecution and sentencing, but to vindicate critical constitutional principles.

Related prior posts providing some Angelos case history:

February 3, 2015 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, February 02, 2015

Indiana sentencing reforms highlight how low-level criminal justice is forced to fill public health gaps

This lengthy local article from Indiana, headlined "County jails fear onslaught of addicts, mentally ill from prisons," provides an effective showcase of the relationships between criminal-justice issues and public-health issues. Here is how:

With the passage of sentencing reforms last year, one study estimates that more than 14,000 low-level offenders, some with serious addictions and mental illnesses, will no longer be kept in prison.  They will be diverted to county jails and community corrections programs that [Franklin County Sheriff Ken] Murphy and others say are ill-equipped to handle the onslaught.

Many such offenders need expensive mental health care — some requiring hundreds of dollars a month in medication.  "These are people with real problems that need treatment," Murphy said. "We need a secure facility or work release or whatever where we can send these folks ... where they can receive treatment, and when they're released, somebody follows up with them."

Sheriffs across the state say jails are not designed for all that.  Jails are meant to hold people awaiting trial, not to house and rehabilitate those who have been convicted. Many do not have mental health services.  Some counties also lack money to expand treatment programs or to launch community corrections programs that provide alternatives to jail, such as housing and GPS monitoring.  That, Murphy said, makes this legislative session critical for public safety.

The success of the criminal code reform under House Enrolled Act 1006, which took effect in July, hinges largely on providing funds for county programs.  Without them, Murphy and others say, people with mental illness and substance abuse problems have a higher risk of failing and re-offending....

"County jails are totally based on the idea in our society that you are innocent until proven guilty," said Howard County Sheriff Steve Rogers. "(HEA) 1006 wants us to hold folks after they've been convicted. Then they won't be pretrial detainees." Rogers said HEA 1006 will put a strain on his jail's mental health resources. "If we can reduce the amount of people that have these mental health issues in our jail," Rogers said, "I think we can handle what 1006 will bring us."

Jails also lack educational programs and vocational training offered in the DOC. "We're not here to rehabilitate," said Capt. Harold Vincent, commander at the Howard County Jail. "That doesn't happen in the jail setting."

Inmates with mental illnesses and substance abuse problems are expensive to incarcerate because of their medical and psychiatric needs. In Marion County, for instance, about 30 percent of inmates are mentally ill, and they take up roughly $7.7 million of the sheriff's budget every year, Layton said. Eighty-five percent have substance abuse problems.

Medication for the mentally ill costs about $800 to $1,500 per dose per person, said Dr. Erika Cornett, medical director for the behavioral health division of Community Howard Regional Health.  Some need an injection once a month, while others need two. That means one mentally ill inmate can cost a jail up to $3,000 a month in medication alone....

Will the political atmosphere be agreeable to spending more money on programs and services that help criminals?  Some hope so....   Some, however, think there will be political resistance.  Investing in other areas, such as education, is more popular.

This article is notable in part because it helps highlight that efforts to reduce prison populations and associated costs could be "penny wise, pound foolish" if there are not adequate resources devoted to services needed to aid localities with community supervision and reentry needs.  More broadly, by detailing various links between health-care needs and criminal justice institutions, this article suggests that effective health-care reform (especially for the poor) may be as critical to public safety and to the public fisc as is effective sentencing reform.

February 2, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Highlighting how apathy may help the criminal justice reform cause

This new Slate commentary by Jamelle Bouie spotlights why maybe I should not complain too much about criminal justice problems not getting enough attention from the media and the general public. The piece is headlined "Why Public Apathy Isn’t All Bad: It has actually helped pave the way for significant criminal justice reform," and here are excerpts:

[A]s much as intensity contributes to politics, we shouldn’t give short shrift to its sibling: public apathy. Apathy gets a bad rap, but when you look at its full place in the world of public policy, it’s underrated.

To be clear, apathy’s reputation isn’t undeserved.  Politicians have long used voter disinterest as cover for corrupt behavior.  And on issues toward which voters aren’t attentive — but interest groups are — the public can get shafted. But the same shadows that cloak the worst of our lawmakers can also shield the best of them.  On issues with which the problems are severe and about which voters are indifferent, politicians have a chance to act effectively for the public good without watching their rears.

The best example is criminal justice reform. During the last decade, lawmakers across the country have pushed bold experiments in shrinking prisons and reducing incarcerated populations, unscathed by any kind of public backlash.  In 2010, after two decades of ceaseless prison growth, Texas officials — supported by Gov. Rick Perry — moved to counter increasing costs of prison construction and incarceration with a new regime of treatment and mental health programs to give prosecutors and judges a third option besides jail or parole.  It worked.  The Texas inmate population has dropped from its peak of 173,000 in 2010 to 168,000 in 2013, without any increase in violent or property crime. Recidivism is down, and the state has saved an estimated $3 billion.

You see a similar story in Georgia, where Gov. Nathan Deal has led the state to drastically change its approach to criminal justice. In 2012, lawmakers passed reforms that gave prosecutors non-prison options for adults arrested for minor crimes, and that gave judges more options for drug offenses, with a goal of reserving prison beds for violent offenders. And in 2013 the state passed reforms that would place minor juvenile offenders in social service programs, skipping the criminal justice system entirely....

On crime, in other words, the broad public just isn’t that interested. And as such, there isn’t a strong incentive for “tough on crime” rhetoric, crime-focused politicians, or punitive anti-crime policies.  But for those on the other side of the issue — for politicians who want fewer prisons and less incarceration — there’s an opportunity to push reform without fear of attack. And slowly, lawmakers are taking it.

Thanks in part to public apathy, the country is beginning to make progress on one of our most important problems.  But we shouldn’t get too optimistic.  Bills against asset forfeiture or for flexibility in sentencing are like the first few boards in a game of Ms. Pac-Man — easy to clear if you know what to do.  To tackle the larger problems — overcriminalization, disinvestment in prison alternatives, and robust reintegration for former offenders — you need more: more will, more skill, and more support.  You also need more money beyond the savings you gain from reform.  And in politics, the moment you ask for cash is the moment the public starts to pay attention.

February 2, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, February 01, 2015

Seemingly without a "grim roster of victims," California reduces extreme prison crowding as ordered in Plata

DownloadAs long-time readers will recall, the US Supreme Court in 2011 in Plata upheld, by a 5-4 vote, a lower-court order that imposed on California a requirement to have its prison population reduced below 137.5% of capacity to remedy extreme Eighth Amendment violations in prison conditions (basics here).  In their dissenting Plata opinions (as noted here and here), Justices Alito and Scalia predicted this ruling would likely produce "a grim roster of victims" and a massive number of "murders, robberies, and rapes" in California.  Similarly, as noted here, in response to Gov Jerry Brown's realignment plan to deal with the Plata problems, the Los Angeles DA predicted "the greatest spike in crime of the last several decades."

Fast forward a few years and this local story now reports that "California’s prison system has hit a milestone, with new figures showing that the inmate population inside the state’s 34 adult prisons has fallen below a court-ordered cap more than a year ahead of schedule."  Here is more: 

California’s prisons steadily filled in the 1990s as tough-on-crime measures such as the “three-strikes” law won public support. In November 2006, the prison population hit 162,804 -- larger than Elk Grove’s current estimated population -- or 200.2 percent of the design capacity at that time.

Lawyers for the inmates said overcrowding had reached the point that medical and mental health care services for prisoners were unconstitutional, and they renewed their legal challenge to a system in which inmates were being housed in triple-deck bunks in prison gyms and other open spaces.  The state disagreed and continued to fight, but in August 2009 a panel of three federal judges said the situation had “brought California’s prisons to the breaking point.”

The panel decreed that within two years the state would reduce inmate populations to 137.5 percent of capacity.  The U.S. Supreme Court agreed in a 5-4 decision in 2011 that the prison population had to be reduced, prompting a series of efforts under Gov. Jerry Brown that led to Thursday’s levels.

Under the latest court orders, California has until Feb. 28, 2016, to cut its inmate population to the 137.5 percent benchmark. The early success in getting to that point can be traced largely to the governor’s prison realignment plan, passed in 2011, which shifted responsibility for nonviolent, low-level offenders from the state to counties.

Before that plan, as many as 60,000 inmates annually were sent to prisons as parole violators and served an average of 90 days. The Department of Corrections says realignment has cut the prison population by about 25,000 inmates. Counties statewide have seen an increase in jail inmates during that time frame....

[In addition,] 2,035 inmates have been released since passage of Proposition 47 in November, which redesignated several felony-level crimes, including some drug possession and property offenses, as misdemeanors. [And] 1,975 inmates in prison after a “third strike” have been released since voters approved Proposition 36 in 2012.  The measure allows for inmates to seek resentencing if their third strike was not considered serious or violent.

So, one should ask, what has happened recently in California with respect to crime rates, especially violent crimes that produce the greatest harms to victims.  This Crime & Consequences post provides a quick summary of the latest official data: "California property crimes per 100k population totaled 2,665.5 in 2013, a 3% drop from the 2012 figure although still above the rate before the realignment law went into effect.  Even better, the rate of violent crimes, less affected by that law, is down to a level not seen since 1967."

Posts at C&C highlight data indicating an increase in car thefts and other property crimes in recent years in California.  But I do not think even the greatest critics of Plata and the state's responses can assert that, as was predicted by a prominent prosecutor, California has experienced "the greatest spike in crime of the last several decades."  In sharp contrast, violent crime has continued to drop in the state in the wake of Plata.  

Though I doubt we will be hearing any sort of mea culpa from those who predicted that the public safety sky was sure to fall after Plata, I hope the California story will help inform assessments of future Chicken-Little-type predictions.

February 1, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

"Why Judges [and criminal case decisions] Tilt to the Right"

The title of this post is a slight modification of the headline of this interesting new piece by Adam Liptak in the New York Times. Here are excerpts:

Lawyers on average are much more liberal than the general population, a new study has found. But judges are more conservative than the average lawyer, to say nothing of the graduates of top law schools. What accounts for the gap?  The answer, the study says, is that judicial selection processes are affected by politics.

Judges are, of course, almost without exception lawyers.  If judges reflected the pool from which they were selected based on politically neutral grounds like technical skill and temperament, the bench might be expected to tilt left.  But something else is going on.

“Politics plays a really significant role in shaping our judicial system,” said Maya Sen, a political scientist at Harvard’s Kennedy School of Government and one of the authors of the study. Since judges tend to be more conservative than lawyers, she said, it stands to reason that the officials who appoint judges and the voters who elect them are taking account of ideology.  She said the phenomenon amounted to a politicization of the courts, driven largely by conservatives’ swimming against the political tide of the legal profession.

Eric A. Posner, a law professor at the University of Chicago, said the paper might have drawn the wrong conclusion from the right data. “The authors argue that a court is politicized if the judges deviate from the ideology of the underlying ideological distribution of attorneys,” he said. “Maybe.”

But an equally powerful case could be made, he said, for viewing courts as politicized if they failed to reflect the ideology of people generally.  “On this view,” Professor Posner continued, “we should congratulate rather than condemn Republicans for bringing much-needed ideological balance to the judiciary.”

Either way, said Tracey George, a law professor and political scientist at Vanderbilt University, the study explored a distinctive feature of American justice.  Foreign legal systems tend to be homogeneous, she said, with lawyers and judges closely aligned ideologically. “You would think there would be a better match” in the United States, she said. “Why would the attorneys facing the bench be so different from the people looking back at them in robes?”

The study is based on an analysis of the campaign contributions of American lawyers, a group that turns out to be exceptionally active in the financial side of elections.... Federal judges and many state judges are barred by ethics rules from making contributions, but a majority did write checks to political campaigns before they joined the bench. Indeed, future judges gave at an even higher rate than lawyers generally.  About 67 percent of future federal trial judges made contributions.  Future state Supreme Court justices gave at the same rate.  And 80 percent of future federal appeals court judges wrote checks to politicians....

The new study considered how judges are selected, not how they rule.  It is possible that the political leanings of judges before they took the bench tell us nothing about how they do their jobs.  But earlier research on the federal courts has found correlations between the political parties of the presidents who appoint judges and how those judges rule.

“The role of ideology increases as cases move up the judicial ladder,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.  “That’s because the constraints on judicial discretion lessen as one moves up.” She and two co-authors — William M. Landes, an economist at the University of Chicago, and Judge Richard A. Posner of the federal appeals court in Chicago — documented the trend in a 2013 book, “The Behavior of Federal Judges.”

Comparing votes in the same set of cases heard at all three levels of the federal judiciary from 1995 to 2008, the book found that judges appointed to trial courts by Republican presidents were only slightly more likely to cast conservative votes than those appointed by Democrats.  But the disparity grew to almost 2-to-1 on the appeals courts and to 2.5-to-1 on the Supreme Court.

Professor Posner, who is Judge Posner’s son, said the new study made a particular contribution in assessing the political inclinations of the American Bar.  “It confirms,” he said, “what everybody always thought: that lawyers are to the left of other professions.”

Every subgroup of practicing lawyers examined by the study was more liberal than the general population. Public defenders and government lawyers generally were particularly liberal, as were women and the graduates of top law schools. But prosecutors and law firm partners were pretty liberal, too.

Law professors, too, are quite likely to lean left, a finding that matched those in earlier studies. Indeed, when Professor Posner and a colleague, Adam S. Chilton, tried to assess whether the liberal tilt of the legal academy affected its scholarship, they had a hard time finding law professors at the top 14 law schools who had contributed more to Republican candidates than to Democratic ones.

Why are judges different? After all, they, too, are a subset of a generally liberal legal culture. Professors Bonica and Sen said that conservatives had worked hard and effectively to ensure representation of their views on the courts. They have cultivated candidates for the bench, notably through the Federalist Society, the conservative legal group active on law school campuses. But if the numbers of conservative candidates remains small, they wrote, it makes strategic sense to deploy candidates on the courts that matter most. The study’s authors call this “strategic politicization.”

“The most conservative courts (and thus the least representative of the overall distribution of lawyers) are the federal courts of appeals, followed by the state high courts, the federal trial courts and state trial courts,” the study found....

There may be reasons besides politics for the overrepresentation of conservatives on the courts, at least as compared with the pool of lawyers.  Judges do tend to be older than the average lawyer, and older lawyers are more conservative than younger ones. Even so, the study found, judges are more conservative than other lawyers their age.

February 1, 2015 in Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, January 31, 2015

Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones

The silly idea reflected in the title of this post is my effort to put a timely spin on what is becoming an old story: lots of folks from lots of different perspectives are coming together to talk about the need for criminal justice reforms. And, as detailed in this press piece, many of these folks got together this past week at an event. Here are the details:

Only one issue in Washington right now could bring together the Koch brothers’ top lawyer, an environmental activist, the former head of the NRA and Sen. Al Franken.  Criminal justice reform.  In a city best known for dysfunction and discord, the issue has stood out as a rare area of common ground between Democrats and Republicans.

And at a panel on reforming the criminal justice system hosted by the Constitution Project advocacy group on Capitol Hill on Wednesday, the bipartisan array of speakers seemed genuinely nonplussed by the harmony across an otherwise gaping political divide.

Van Jones, the former Obama administration official and liberal commentator, was seated next to Mark Holden, Koch Industries’ general counsel and the face of the conservative mega-donors’ efforts to lower incarceration rates in the country. (The Koch brothers are planning to spend a reported $889 million during the 2016 election cycle, a figure that puts their operation in the same financial ballpark as the two political parties themselves.)

“That should be a headline in itself,” Jones said of he and Holden sitting at the same table. “Cats and dogs sleeping together,” Holden chimed in. “I don’t know about sleeping together,” Jones quipped.

Jones said he hoped politicians would seize on this moment — when crime is down and interest is high — to reform the U.S. penal system so that the country no longer imprisons a higher percentage of its citizens than any other nation.  “This is a time for real comprehensive change,” Jones said. “It’s very, very rare that we have a moment where the stars are aligned in this way.”  He later warmly embraced the Kochs' lawyer.

Lawmakers lined up to promote their criminal justice reform bills at the event, which also included remarks from Piper Kerman, the author whose memoir about her experience in federal prison inspired the Netflix series “Orange Is the New Black.”

Sens. Rob Portman, a Republican, and Al Franken, a Democrat, spoke about a bill they’re reintroducing this year to provide more mental health services to prisoners and to fund special mental health courts that emphasize treatment over doing time. Rep. Jim Sensenbrenner (R-Wis.) said he believes lawmakers should review every federal regulation or law that carries prison time to decide if it’s merited or not. Sen. Cory Booker (D-N.J.), who introduced a bill to expunge nonviolent criminal records of juvenile offenders that he’s co-sponsored with Sen. Rand Paul (R-Ky.), sat with audience members, saying he wanted to listen and learn.

Holden told the crowd that the Koch brothers have been involved in criminal justice reform for more than 10 years, after a few of their employees were prosecuted for violating environmental regulations in Texas in the 1990s.  (The charges against the employees were later dropped, and Koch Industries settled with the government.)  The Kochs have since invested in providing defense lawyers for poor people and other reform efforts, and have signaled it will be a major policy priority this year.  Their support could lend momentum to the bipartisan reform bills that have already been introduced. “What we should be using the prison system for is people we’re afraid of,” Holden said, not for nonviolent offenders.

I am always pleased to see talk of significant criminal justice reform making headlines. But as I have often said before (and as I likely will say again a lot in the months ahead), "talking the talk" about criminal justice reform is always much easier than "walking the walk" especially at the federal level.  So, if you come upon this notable cast of characters at your SuperBowl party this weekend, you should find it much easier to talk about criminal justice reform than to predict when all this talk will result in significant legislative action.

We are coming on five years since the libertarian/small-government wing of the GOP began talking a lot about significant sentencing reforms (right after the 2010 election cycle).  And yet, circa 2015, we still have not yet seen any proposals for "real comprehensive change" making the rounds on Capitol Hill.  Indeed, even (much-too) small proposed changes reflected in bills like the Smarter Sentencing Act have gained precious little momentum.

I am cautiously hopeful that the involvement of major capitalists like the Kochs will help fuel the work of major activists to turn all the talk into real action. But, ever the realistic (though optimistic) cynic, I am not expecting Congress to enact any truly landmark criminal justice reform legislation anytime soon.

January 31, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

After adopting new execution drug laws, Ohio delays all executions for additional year

As explained in this AP article, a full year after Ohio had difficulties executing Dennis McGuire and a month after the state enacted new execution laws, Ohio officials decided to kick the execution can another year down the road by rescheduling all 2015 scheduled executions.  Here are the details:

The state on Friday rescheduled executions for seven death row inmates as it tries to find new lethal drugs, meaning no inmate will be put to death in Ohio in 2015.  The announcement affects six executions this year, including one set for Feb. 11 for condemned child killer Ronald Phillips, and one previously scheduled for 2016 that was pushed farther back.

The move, which was expected, follows a federal judge's previous order delaying executions while the state puts a new execution policy in place, the state said.  The delays also allow the state time to find supplies of new drugs, according to the Department of Rehabilitation and Correction.  The new execution policy calls for Ohio to use drugs it doesn't have and has had difficulty obtaining in the past.

The delays mean that for the first time Ohio won't execute anyone in a calendar year since the state resumed putting inmates to death in 1999.  The state put one inmate to death last year and three in 2013.  A total of 11 executions are scheduled for 2016.  Under the revised schedule, the next execution is Jan. 21, 2016, when Phillips is scheduled to die for the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.

 Tim Young, the state public defender, applauded the move, saying there was no need for executions "until we have answers to the numerous legal and medical questions posed by lethal injection."

Earlier this month, the state ditched its two-drug method after problematic executions in Ohio a year ago and Arizona in July.  Ohio's supplies of those drugs, midazolam, a sedative, and hydromorphone, a painkiller, were already set to expire this year. Underscoring concerns about midazolam, the U.S. Supreme Court earlier this week ordered Oklahoma to postpone lethal injections executions using the drug until the court rules in a challenge involving midazolam.

Ohio's execution policy now calls for it to use versions of thiopental sodium or compounded pentobarbital, neither of which it has.  Death penalty experts question where Ohio would find supplies of thiopental sodium, saying it's no longer available in the U.S. and overseas imports would run afoul of importing bans.

Notably, before Ohio started having major problems with lethal injection protocols, the state had become one of the most active and effective states carrying out death sentences. The state completed nearly 50 executions from 2002 through 2012, and a few years in that period it was second only Texas in the number of executions completed. But lethal injection difficulties and litigation entailed that the state could carry out only three executions in 2013, only one in 2014 and now there will be none in 2015.

I expect that Ohio officials will be try pretty hard to get its machinery of death up and running again in 2016, and it is possible a Supreme Court decision about lethal injection protocols in Oklahoma might actually end up helping the state get its execution chamber back on line. But the 140 men and one woman now on Ohio's death row (and their lawyers) should be breathing a little easier today. And it now seems that much more likely that the majority of these murders will end up just dying in prison rather than be subject to an affirmative state killing.

January 31, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, January 30, 2015

Aggressive litigation prompts federal prosecutor in Chicago to drop stash house sting

As reported in this lengthy front-page Chicago Tribune article, aggressive litigation by the federal defense bar concerning aggressive federal drug-war tactics have now resulted in federal prosecutors backing off the most aggressive federal criminal charges these tactics have generated.  The article is headlined "Chicago prosecutors quietly drop charges tied to drug stash house stings," and here is how it begins:

Federal prosecutors in Chicago have quietly dropped narcotics conspiracy charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.

The decade-old strategy is also under fire because federal authorities, as part of a ruse, led targets to think large quantities of cocaine were often stashed in the hideouts, ensuring long prison terms upon conviction because of how federal sentencing guidelines work. Experts said the move by Chicago prosecutors marked the first step back by a U.S. attorney's office anywhere in the country in connection with the controversial law enforcement tactic.

In the court filings seeking the dismissals, prosecutors gave no clue for the unusual reversal, and a spokesman for U.S. Attorney Zachary Fardon declined to comment. But the move comes two months after the 7th U.S. Circuit Court of Appeals issued a stinging rebuke to the policy, ordering a new trial for a Naperville man who alleged he was goaded into conspiring to rob a phony drug stash house by overzealous federal agents.

The stings, led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, have been highly criticized for targeting mostly minority suspects, many of whom were drawn into the bogus rip-offs by informants who promised easy money at vulnerable points in their lives.

The cases are built on an elaborate ruse concocted by the ATF. Everything about the stash house is fictitious and follows a familiar script, from supposedly armed guards that need to be dealt with to the quantity of drugs purportedly stashed there. By pretending the house contains a large amount of narcotics, authorities can vastly escalate the potential prison time defendants face, including up to life sentences. Earlier this month, federal prosecutors in Chicago sought to drop drug conspiracy charges in seven of the nine pending stash-house cases, leading some of the judges to quickly approve the move without a hearing.

In each case, the defendants — 27 in all — still face weapons and other charges for the alleged scheme and potentially long prison sentences upon conviction. But without the drug conspiracy charges, the mandatory minimum sentences for most of the defendants would drop to just five years in prison from as much as 25 years, according to Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.

The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment.

Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York, said hundreds of people nationally have been charged as part of the drug house ruse. The ATF has been using this sting for at least a decade, she said. Tinto said she believes the decision to drop the cases in Chicago is an acknowledgment of the fact that federal agents involved in the sting set the quantity of the phony drugs, a critical factor in driving the sentencing.

The dismissal of the seven cases likely "signals that the government is starting to take a critical look both at these tactics and the immense sentencing these tactics can bring," Tinto said.  "In this tactic the drugs are imaginary, and the amount of the drugs is set by the government."

I have been preaching in recent years that I have come to believe that aggressive litigation taking on some of the worst extremes of the federal drug war and excesses of mass incarceration was more likely to "move the sentencing reform needle" as much, if not more, than legislative advocacy directed and a gridlocked Congress. This story reinforces my sense that more and more federal judges are growing more and more willing to criticize and seek to rein in what they more and more are seeing as federal prosecutorial overreach in the drug war and elsewhere.

January 30, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9) | TrackBack

Notable new commentary on Yates v. US and overcriminalization

Via email I learned about these two notable new commentaries discussing issues surrounding the federal criminal case Yates v. United States soon to be resolved by the Supreme Court:

SOX on Fish: A New Harm of Overcriminalization by Todd Haugh

Going Overboard: Yates and DOJ’s “Most Serious Offense” Charging Policy by Scott Coffina & Edward James Beale

January 30, 2015 in Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, January 29, 2015

Intriguing review of early impact of California's Prop 47 reducing offense seriousness

La-me-g-early-release-20150127Though marijuana reform is the national criminal justice reform story most significantly driven by voter initiatives, voters in California the last two major election cycles have been enacting significant sentencing reforms through the initiative process.  In 2012, voters approved Proposition 36 to revise the state's tough Three Strikes Law; last year, voters passed Proposition 47 to reduced various crimes from felonies to misdemeanors. These developments provide yet another reason to view California as the most interesting and dynamic of all states in the history of modern sentencing reform.

The Los Angeles Times now has this lengthy new article detailing some early impacts of Prop 47. The piece is headlined "Prop. 47 brings a shift to longer time spent behind bars," and here are excerpts:

For decades, Los Angeles County jail inmates divided their sentences by five, 10 or 20 to calculate the time they would actually spend behind bars. Because of overcrowding, they left after completing as little as 5% of their sentences.

Now, as Proposition 47 begins to reshape the California criminal justice system, they are serving much more of their time. The new law, passed by voters Nov. 4, reduced drug possession and other minor crimes from felonies to misdemeanors. The county jail population plummeted and sheriff's officials began increasing the time served for the remaining inmates to 90% or more.

Most of the affected inmates will end up serving only half of that, due to automatic credits prescribed by state law, but the change is still profound. Because of Proposition 47, others who would have landed in jail are not being arrested as street cops take a pass because of the low stakes. At the Los Angeles County Sheriff's Department, bookings are down by 23% and narcotics-related arrests are down 30%.

Other California counties are also seeing significant decreases in their jail populations as a result of the new law. In Los Angeles County, the altered landscape has led to renewed questions about how big the new Men's Central Jail should be, as well as concerns about whether those now being issued misdemeanor citations are missing out on drug treatment that could turn their lives around.

Under the new law, the cost savings from smaller county jail populations, which the state legislative analyst estimated could be hundreds of millions of dollars, will be channeled into substance abuse and mental health programs, victim services and reducing school dropouts and truancy.

But some, including law enforcement officials, worry that people who need help will not enter the system. Already, fewer are opting for mandatory drug treatment programs because they face little to no jail time as an alternative. "What concerns me is that some of those offenders were getting treatment," said Gardena Police Chief Ed Medrano, the Los Angeles County representative for the California Police Chiefs Assn., which lobbied against Proposition 47. "If they're getting arrested less, that doesn't mean their drug addiction problems have gone away."

Early release has been a near-constant feature in Los Angeles since 1988, when a federal judge allowed sentenced inmates to be let out early as a temporary solution to overcrowding. Many inmates were freed after serving only 10% of their time. A 2006 Times investigation found that nearly 16,000 were rearrested for new offenses while they could have been finishing out their sentences. Sixteen were charged with murder....

Over the years, the county has tried solutions including electronic monitoring, work programs and firefighting camps. But nothing had a dramatic impact until Proposition 47 passed with nearly 60% of the vote.

More than 400 county jail inmates have been released in the last three months because their crimes — which include theft and writing bad checks as well as drug possession — have been downgraded to misdemeanors under Proposition 47. That, combined with the reduced number of arrests, helped bring the jail population down to a low of about 15,000 from 18,600. Since early release has been scaled back, the inmate count has rebounded to about 17,400.

Inmates with county sentences for burglary, theft, DUI and the like are now serving 90% of their terms, whereas men had been serving 20% and women serving 10%. Those convicted of more serious offenses such as child molestation or assault with a deadly weapon are now serving 100% of their terms, compared with 40% previously. About 3,000 inmates are serving the longer county sentences; most of those serving state sentences are not affected.

The smaller jail population has allowed sheriff's officials to complete overdue repairs and has freed up more space for educational programs, Cmdr. Jody Sharp said. Dist. Atty. Jackie Lacey praised the news that serious offenders in Los Angeles County are now serving most of their terms, calling it "a positive and welcome effect" that could help her office strike better plea deals. "Every defendant asks the following question: 'When can I get out?' " Lacey said. "If the 'when can I get out' is far in the future, it could impact if they plead guilty early or if they demand a trial."

Lacey emphasized that keeping a close eye on crime and recidivism rates will be key to understanding the full impact of the new law.

In Orange County, the inmate count has dropped nearly 22% since Proposition 47 took effect after the election, allowing sheriff's officials to close a section of the James A. Musick jail. Previously, there were no extra beds for new arrivals on the long weekends when court was not in session. "Now, we've got the luxury of not waiting on pins and needles — now we have some space," said Lt. Jeff Hallock, a department spokesman.

This report provides early evidence that Prop 47 has succeeded in redirecting California's state law enforcement and correction resources principally to the most serious offenders presenting the greatest risk to public safety.  Of course, long-term developments and analyses will been needed to conclusively assess whether the Prop 47 reform is an unqualified success.  But this early report sure is encouraging (and perhaps explains why the folks at Crime & Consequences, who had substantive posts assailing Prop 47 before the November vote, have not substantively discussed the law since its passage).

Some prior related posts on California's Prop 47:

January 29, 2015 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, January 28, 2015

"Lynch to Cast Herself as Departure From Holder in Bid to Be Attorney General"

The title of this post is the headline of this New York Times article previewing the start today of hearings concerning President Obama's nomination for Eric Holder's replacement as Attorney General. Here is how the article starts:

Loretta E. Lynch on Wednesday will cast herself as an apolitical career prosecutor who is a departure from Eric H. Holder Jr. when she faces a new Republican-­controlled Judiciary Committee that includes some of the administration’s fiercest critics in Congress.

“I look forward to fostering a new and improved relationship with this committee, the United States Senate, and the entire United States Congress — a relationship based on mutual respect and constitutional balance,” Ms. Lynch said in testimony prepared for the confirmation hearing.  “Ultimately, I know we all share the same goal and commitment: to protect and serve the American people.”

If she is confirmed, Ms. Lynch would be the nation’s first African-American woman to serve as attorney general.  Her allies have sought to differentiate her from Mr. Holder, an outspoken liberal voice in the administration who clashed frequently with Republicans who accused him of politicizing the office.

In particular, Ms. Lynch is expected to face tough questioning about her opinion of the president’s decision to unilaterally ease the threat of deportation for millions of unauthorized immigrants.  Mr. Holder approved the legal justification for that action, enraging some Republicans.

In these hearings, I am expecting some Senators to ask some questions about sentencing reform and federal marijuana policy. I hope to be able to provide some coverage and commentary about what gets asked and what nominee-Lynch says in future posts.

Prior related posts:

January 28, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Did feds just win the drug war?: kingpin twin drug dealers get kingly sentencing break thanks to cooperation

ImagesAs detailed in this AP story, headlined "Trafficking Twins Get Sharply Reduced Sentences," the sentencing benefits of cooperating with the government was on full display yesterday in a Chicago federal courtroom. Here are the details:

Identical twin brothers who ran a drug-trafficking ring that spanned much of North America were sentenced Tuesday to 14 years in prison after a judge agreed to sharply reduce their penalty as a reward for becoming government informants and secretly recording Mexico's most notorious drug lord.

In a rare courtroom display, it was a federal prosecutor who poured praise on Pedro and Margarito Flores, portraying them as among the most valuable traffickers-turned-informants in U.S. history and describing the courage they displayed in gathering evidence against Joaquin "El Chapo" Guzman and other leaders in Mexico's Sinaloa cartel.

With credit for time served awaiting sentencing and for good behavior in prison, the brothers, now 33, could be out in as little as six years.

Chief U.S. District Judge Ruben Castillo likened Americans' sense of security to walls and scolded the brothers for introducing drugs that fueled violence and despair. "You devastated those walls. You knocked them down," he said.  The twins' cooperation was the only thing that spared them from an actual life sentence, Castillo told the brothers. But, he added, they would still serve a life sentence of sorts — having to look over their shoulders the rest of their lives in constant fear of a deadly attack by an assassin working for the cartel they betrayed.

Castillo said the twins were the most significant traffickers ever in his court.  But he said he had also never seen traffickers at the height of their power and wealth come forward to offer to become government witnesses, as the siblings had.

The twins appeared in court with the same olive-green clothes and the same closely cropped haircuts. Both kept tapping one foot nervously throughout the hourlong hearing. Just before the judge imposed a sentence, each walked to a podium separately to speak, appearing uneasy. "I'm ashamed. I'm embarrassed. I'm regretful," Margarito Flores said. "There is no excuse."

So successful was their criminal enterprise that the jewelry-loving, Maserati-driving twins smuggled $1.8 billion — wrapped in plastic and duct tape — into Mexico, according to prosecutors....

Prosecutor Mike Ferrara had asked for a sentence of around 10 years. He noted the twins' cooperation led to indictments of Guzman and more than 50 others. The twins began cooperating with agents in 2008 and engaged cartel leaders for months, sometimes switching on recorders and shoving them in their pockets. They continually risked death, Ferrara said.

The 5-foot-4 twins' trafficking careers soared after they left Chicago to live in Mexico around 2004. In mid-2005, they met with Guzman in his secret mountain compound to cut major drug deals, government filings said. The brothers ran their operation from a Mexican ranch. Their network stretched from its Chicago hub to New York, Detroit and Washington, D.C., and to Los Angeles and Vancouver, British Columbia....

Later Tuesday, Chicago-based U.S. Attorney Zachary Fardon announced new charges against several Sinaloa figures stemming from the twins' cooperation. Asked about their lenient sentences and the message it sent to other would-be cartel traffickers, Fardon said it should demonstrate, "You can right some of what you did wrong ... by helping the government."

So does this all mean that the federal drug war can be declared officially over, and that we can claim the good guys officially won this 50-year costly war?  After all, this was a sentencing of two of the most significant drug traffickers, and they have become the "most valuable traffickers-turned-informants in U.S. history."  Surely this must scare off and deter all other current and would-be drug dealers and all the trillions in taxpayer dollars spent on the drug war has now been vindicated as money well spent.  

Of course, I am asking the question above and in the title of this post with my tongue firmly planted in my cheek.  A key problem with the drug war, as I see it, is that even a huge drug war "victory" in catching and prosecuting some drug dealers typically will make it that much more valuable and enticing for other drug dealers to seek to replace the captured criminals.  I fear that , unless and until illegal drug demand is reduced,  illegal drug suppliers will be plentiful in part because the drug war makes their activities potentially much more lucrative.  

January 28, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 27, 2015

"The Humane Death Penalty Charade"

The title of this post is the headline of this New York Times editorial.  Here are excerpts:

When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.

The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma deathrow inmates alleging that the state’s lethal­injection drug protocol puts them at risk of significant pain and suffering.

In accepting the case, the justices had to change its name.  The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-­to-­4, denied him a last­minute stay.  That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution.  The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)...

The justices have been here before.  They upheld the constitutionality of lethal injection in 2008.  But, since then, the battles over the practice have grown more warped.  Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training.  During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website drugs.com, not scientific studies.  It would all be a laughable farce if it didn’t involve killing people.

There is disingenuousness on both sides.  Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms.  Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments.  In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.

It is time to dispense with the pretense of a pain­free death.  The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable.  When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

I love the phrase "armchair executioners," even though I could not help reacting with a classic "Taxi Driver" response.

Recent related posts:

January 27, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, January 26, 2015

"Beyond a Reasonable Disagreement: Judging Habeas Corpus"

The title of this post is the title of this notable new article by Noam Biale now available via SSRN. Here is the abstract:

This Article addresses ongoing confusion in federal habeas corpus doctrine about one of the most elemental concepts in law: reasonableness.  The Supreme Court recently announced a new standard of reasonableness review for habeas cases, intended to raise the bar state prisoners must overcome to obtain federal relief.  This new standard demands that errors in state court decisions be so profound that “no fairminded jurist could disagree” that the result is incorrect. Scholars have decried the rigid and exacting nature of this standard, but very little interpretive work has yet been done to theorize what it means and how it should be used.

This Article develops a theoretical framework for understanding the new habeas standard and shows that the assumptions lower courts are making about its meaning are wrong. It concludes that federal courts need more data beyond the mere possibility of fairminded disagreement to find that a decision is reasonable.  The Article draws on scholarship and jurisprudence in other areas of law that employ reasonableness standards, and argues that the missing data should be supplied by examining the state adjudicative process.  The case for focusing on state process in federal habeas cases is not new, but this Article represents the first argument that the new habeas standard not only permits such a focus but, in fact, requires it.

January 26, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead.  Here is how the piece starts:

There are nine justices on the Supreme Court.  It takes four votes to hear a case, but it takes five to stay an execution.

That can leave a lethal gap.  A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year.  But the prisoner who brought it may not live to see the decision.

In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-­death importance of a single vote.  The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.

“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high­-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”

The case the court agreed to hear used to be called Warner v. Gross, No. 14­7955.  On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 14­7955. It may change again.  The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday.  The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.  

The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review.  He seemed to indicate that the state was prepared to proceed with the executions.

The petitioners’ lawyers will doubtless seek stays.  In Mr. Glossip’s case, they will have to act quickly.  How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions.  Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.

Recent related posts:

January 26, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?

PSPP_Fed_Growth_FS_fig1The question in the title of this post is part of my reaction to this new fact sheet released by the Pew Public Safety Performance Project. The Pew document is titled "Growth in Federal Prison System Exceeds States': Federal imprisonment rate, taxpayer costs soar as states curtail expansion, protect public safety," and here is how it starts (footnoted omitted):

Between 1980 and 2013, the federal imprisonment rate increased 518 percent, from 11 inmates for every 100,000 U.S. residents to 68.  During the same period, annual spending on the federal prison system rose 595 percent, from $970 million to more than $6.7 billion in inflation-adjusted dollars.  Prison expenditures grew from 14 percent of the Justice Department’s total outlays to 23 percent, increasingly competing for resources with law enforcement and national security programs.

States, like the federal government, recorded sharp increases in incarceration and corrections costs over the past three decades.  However, between 2007 and 2013, many states made research-driven policy changes to control prison growth, reduce recidivism, and contain costs. While the federal imprisonment rate continued to rise during that period, the state rate declined.

Folks like Bill Otis and some other defenders of the modern state of the modern federal criminal justice system are often suspect when I (and others like Senator Rand Paul and Grover Norquist) assert that a true commitment to conservative values should prompt serious questions about the size and operation of federal criminal justice system.  And I fully understand how folks committed to certain social conservative values, and who also believe the federal government should be actively promoting certain social values, can continue to support strongly the federal war on drugs and ever-increasing federal expenditures in service to promoting certain social values.

But, as the title of this post suggests, I do not understand how anyone who is truly committed to fiscal conservative values is not now compelled to examine whether it is wise to keep spending/borrowing more and more federal monies to keep growing the federal prison system.  As this Pew document and many others have highlighted, a significant number of states have been able to reduce its spending on incarceration over the last decade without any obvious harmful impact on public safety.  My advocacy for federal sentencing reform is based largely on the hope and belief that the feds can now do the same.

January 26, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

High-profile capital trials put spotlight on dynamics of death-qualification of jurors

This new AP story, headlined "Death-qualified' juror search slows marathon, theater cases," effectively reviews the distinct notable realities that attend jury selection in a capital case. Here are some excerpts:

One prospective juror was brutally frank when asked whether he could consider a sentence of life in prison for the man accused of bombing the Boston Marathon. "I would sentence him to death," he said, then added: "I can't imagine any evidence that would change how I feel about what happened."  Another prospective juror said he couldn't even consider the death penalty, telling the court, "I just can't kill another person."

The two men are on opposite sides of the capital punishment debate, but both unlikely to make it on the jury for the trial of Dzhokhar Tsarnaev: to be seated for a death penalty case a juror must be willing — but not eager — to hand down a sentence of either life or death.

The process of finding "death qualified" jurors has slowed down jury selection in federal case against Tsarnaev, who is charged with setting off two bombs that killed three people and injured more than 260 during the 2013 marathon.  It is expected to do the same in the state trial of James Holmes, the man accused of killing 12 people and injuring 70 others in a suburban Denver movie theater in 2012.

The process is designed to weed out jurors who have strong feelings for or against the death penalty.  A 1985 ruling from the U.S. Supreme Court said a juror can lawfully be excused if his views on the death penalty are so strong that they would prevent or substantially impair his ability to follow the law.

But death penalty opponents have long said the process is fundamentally unfair.  They argue that death-qualified juries do not represent a true cross-section of the community and are less likely to be sympathetic to the defense.  "You end up with a jury with less women, less blacks, less Democrats ... you end up with a jury that is skewed in ways that make it probably more conservative, more accepting of prosecution arguments, of state authority," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization that opposes executions.

The Capital Jury Project, a consortium of university researchers, interviewed about 1,200 jurors in 353 capital trials in 14 states beginning in the early 1990s.  The group's research has shown that death penalty juries are more likely to convict and that jurors often make up their minds about what punishment to hand down long before they're supposed to, said William Bowers, director of the project....

Death penalty opponents have argued that to get around this kind of pre-judgment, separate juries should be chosen to hear evidence in the guilt phase and the punishment phase. But that idea has not gained traction....

In the Holmes case, an unprecedented 9,000 jury summonses were mailed. As of Friday, 210 prospective jurors had been excused over four days. Individual questioning is set to begin next month.  In the marathon bombing case, 1,373 people filled out juror questionnaires. Individual questioning of prospective jurors has been slowed as the judge has probed people at length about their feelings on the death penalty. The judge had originally said he hoped to question 40 jurors each day, but during the first five days only averaged about 15.

Capital punishment supporters say the current system of screening out strong pro- and anti-death penalty jurors is the only fair way to choose juries in death penalty cases.  "The process simply says that jurors must be willing to abide by the law," said John McAdams, a Marquette University professor who supports the death penalty.

January 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"The Unconvincing Case Against Private Prisons"

The title of this post is the title of this intriguing recent article by Malcolm M Feeley just now appearing on SSRN. Here is the abstract:

In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue.  The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance.  This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world.  Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them.

In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed.  The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary.

The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers.  The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism.

January 26, 2015 in Prisons and prisoners, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, January 25, 2015

Will this week's confirmation hearings for AG nominee Loretta Lynch produce any fireworks?

This new National Law Journal article suggests the answer to the question in the title of this post may actually be no. The piece is headlined "Nominee Isn't Drawing a Crowd: Loretta Lynch hasn't inspired the passions that Eric Holder Jr. did — but that might be by design." Here are excertps:

Since Loretta Lynch's nomination on Nov. 8 for attorney general, the Senate Judiciary Committee has received about a dozen letters supporting her — a volume that starkly contrasts with the outpouring Eric Holder Jr. inspired six years ago.

That may not be a bad start for a nominee whose Senate hearings are scheduled to begin on Jan. 28. But by the time Holder's confirmation hearings began on Jan. 15, 2009, the committee had received more than 100 letters from law enforcement, victims' rights and civil rights organizations — among other groups and individuals — weighing in on Holder's fitness for the job.

A former White House lawyer who worked on previous Obama administration nominations told the NLJ that the dearth of formal submissions concerning Lynch is less about a lack of enthusiasm for her than the fact her work in the law hasn't generated sharp, easily defined divisions on Capitol Hill.

Lynch's critics so far haven't pointed to any particular moment in her career that raises questions about her fitness to serve as the nation's top law enforcement officer. Indeed, some Republicans intend to challenge Lynch as a proxy for the Obama administration at large — with a focus on the president's executive action on immigration....

As of press time, the Judiciary Committee had posted 13 letters addressing Lynch's nomination. Lynch's public support, so far, represents a cross-section of federal prosecutors, district attorneys, in-house corporate attorneys, African-American lawmakers and law enforcement officers. She has the formal support of general counsel at Alcoa Inc. and Estée Lauder Cos. Inc., the National Organization of Black Law Enforcement Officers, the Federal Bar Council, the Congressional Black Caucus and the National District Attorneys Association....

From almost as soon as Obama nominated Lynch, some Senate Republicans signaled they wouldn't stand in her way. In November, for example, Sen. Orrin Hatch, R-Utah, said Lynch "looks good to me." Sen. Lindsey Graham, R-S.C., called her a "solid choice." That does not mean there won't be opposition. The difference between 2009 and 2015 in the political climate and the Senate's composition — now with the Republicans in control — may mean Lynch will be confirmed by a narrower margin than Holder's 75-21 tally, which included 19 Republican "yea" votes. "The pattern of recent confirmations has been that nominees will get just enough to get through," Gorelick said.

Gun Owners of America intends to voice its concerns to the judiciary committee for those senators looking for reasons to vote "no" against Lynch. In a proposed letter, the group said Lynch has "no real paper trail." The letter tied her to justices Elena Kagan and Sonia Sotomayor, as well as to Holder, each of whom the Gun Owners of America calls "a committed anti-gun radical." "She's kind of like Eric Holder in a skirt," organization president Larry Pratt told the NLJ. Although Lynch has made her name as a longtime prosecutor, Pratt's letter highlights sustained criticism of Holder as an activist attorney general.

Prior related posts:

January 25, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (1) | TrackBack

"The Politics of Mercy: Is clemency still the third rail? We may find out."

The title of this post is the headline of this lengthy piece by Ken Armstrong at The Marshall Project. Here are excerpts:

For decades, the conventional wisdom has been that clemency equals danger. Any governor who grants pardons or commutations to convicted felons invites political risk – with no potential benefit. In Massachusetts, Mitt Romney signed not a single pardon, a record he later touted.

But when [Robert] Ehrlich was governor of Maryland from 2003 to 2007, he made clemency a priority, dedicating lawyers to screen requests and meeting monthly with senior aides to review applications.  In the end, Ehrlich granted clemency more than 200 times. And should he run for president, he plans to hold up that record as a signature achievement, arguing that it shows he is someone who leads instead of cowers.... The GOP field could also include other candidates who have resisted convention, such as Ohio Gov. John Kasich, who has commuted the death sentences of five condemned inmates since 2011.

Is it possible that a willingness to grant clemency might now offer some political benefit? “I would give it a qualified yes,” says P.S. Ruckman Jr., a political science professor at Rock Valley College in Rockford, Ill., and editor of the Pardon Power blog. “I think increasingly there’s a sense that it’s a nebulous plus if you at least appear to be someone who takes the Constitution seriously and isn’t stuck in the 1980s, pushing the Willie Horton button.”...

Ehrlich says there has since been a cultural shift, with growing concern about harsh sentencing laws — for example, mandatory minimums — and a realization that “the drug epidemic is more appropriately viewed as a health issue than as a criminal justice issue.” The country’s booming prison population “is impacting so many people, so many families, so many careers, so many parents,” Ehrlich says.  “It crosses every line.”...

Margaret Love, who served as U.S. Pardon Attorney under presidents Clinton and George H.W. Bush, says,  “This is a function of the justice system that should not be subject to these political whims.  I get sort of annoyed whenever I see it treated as a sort of holiday gift-giving. That’s not what it is. It’s part of the system, or at least ought to be.”

On Thursday, Love wrote a post on the website for the Collateral Consequences Resource Center, noting the symbolism of Virginia Gov. Terry McAuliffe’s recent summoning of the media to watch him sign a conditional pardon for an autistic inmate.  “There may be no more telling sign that the ‘soft on crime’ label is losing its power over elected officials than McAuliffe’s decision to publicize this bedside act of mercy,” she wrote.

In the next campaign, no candidate would test the power of that label more than Mike Huckabee, who this month left his Fox News show to consider running.  In his decade as Arkansas governor, Huckabee granted clemency more than 1,000 times.  On Thursday, BuzzFeed published an unaired ad that Mitt Romney’s campaign had prepared during the 2008 race, tying Huckabee to the early release of a serial rapist who, once freed, committed murder.  Romney’s campaign ultimately balked at using the ad.

Since then, Huckabee has become an even more inviting target.  In 2009, in Washington state, a former Arkansas inmate named Maurice Clemmons shot and killed four police officers in a coffee shop.  Nine years before, Huckabee had commuted Clemmons’s prison sentence, making him eligible for parole.

It might seem that advocates for clemency would cringe at the prospect of a Huckabee candidacy in 2016, given his vulnerability to Willie Horton-type attacks.  But Mark Osler, a law professor at the University of St. Thomas in Minneapolis, says, “I’ve told people for the last few years that one of the best things for clemency would be for Huckabee to run.”

What Osler and others see in Huckabee is an opportunity for an open discussion of what clemency is – and is not. “It does not lead to perfection, in the same way the jury system does not lead to perfection,” Osler says.  “With clemency you have an independent moral actor who is unpredictable — and that’s the person receiving clemency.  You can never guarantee that that person will not commit another crime.”

Clemency advocates believe Huckabee, an ordained minister, can make a persuasive case for mercy, particularly given how he links clemency to his Christian faith and to his belief in what he calls “restorative justice.”...

Ehrlich, unlike Huckabee, has not had any grants of mercy come back to haunt. And when talking about his embrace of clemency, he’s found support among dramatically different audiences, from a dinner co-hosted by the Charles Koch Foundation to a forum sponsored by George Soros’s Open Society Foundations.  “So it’s hard right and hard left, but the audiences have generally the same view on this issue,” he says.  In a speech three years ago, Ehrlich boiled his motives for making clemency a priority down to this: “Because it's the right thing to do. It's really not that complicated.”...

The field of potential presidential candidates also includes governors at the opposite end of this spectrum.  Wisconsin Gov. Scott Walker, a Republican, has refused to grant any pardons, portraying them as an undermining of the criminal justice system, rather than as a way to recognize someone’s rehabilitation or help check an unduly harsh law or ill-conceived prosecution.  To Ruckman, Walker is “on the wrong side of history. He’s a dinosaur on this one.”

January 25, 2015 in Clemency and Pardons, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, January 24, 2015

Another remarkable exoneration thanks only to NC Innocence Inquiry Commission

3a47dbc6b83315036c0f6a70670038b2On this blog, I typically do not extensively cover or frequently discuss exonerations and criminal appeals based on actual innocence claims because, as some may know, I fear guilt/innocence concerns can at times distort sentencing procedures and policy debates focused only on indisputably guilty persons.  But this new amazing story out of North Carolina, headlined "After 36 years, Joseph Sledge's unfamiliar feeling: normal," seemed especially blogworthy for various reasons.  

Most significantly, I think, is that this remarkable NC story highlights the unique benefits resulting if (and perhaps only when) a jurisdiction has a special institution and special procedures for  dealing specifically with innocence claims. Here are the basic of one remarkable story that is embedded in the broader realities of North Carolina's unique approach to innocence concerns:

Joseph Sledge looked out across Lake Waccamaw on Friday afternoon, shivering against a cold January rain and trying to embrace an unfamiliar feeling: normal. Sledge walked out of jail Friday for the first time in 36 years without the burden of handcuffs and shackles.

He is finally free. The state had been wrong about him in 1978, and in all the years since; he is no killer. At 70, he will begin again. “I’m full up on freedom,” Sledge said shyly, leaning over a menu at Dale’s Seafood, a lakeside restaurant in rural Columbus County.

Sledge is the eighth man freed through a unique process that forces the state to deal with prisoners’ claims of innocence. The North Carolina Innocence Inquiry Commission, created in 2006, examined Sledge’s innocence claim over the last 18 months, and in December, it voted that his case merited a possible exoneration.

On Friday afternoon, a trio of judges did just that. Jon David, the Columbus County district attorney, made their decision swift and easy; David told judges he had become convinced that Sledge was innocent.

As Superior Court Judge Tom Lock announced Sledge’s exoneration, a dozen photographers and reporters rushed toward Sledge and his attorneys. Sledge smiled slightly as his attorneys, Christine Mumma and Cheryl Sullivan of the North Carolina Center on Actual Innocence, pulled him close. Applause erupted....

Sledge ... stole some T-shirts from a department store in the early 1970s. A judge sentenced him to four years in a prison camp in rural Eastern North Carolina. In 1976, with just a year left in his sentence, he escaped from the White Lake Prison Camp one night after a beef with another inmate.

That very night, not 5 miles away, someone brutally murdered Josephine and Ailene Davis, a mother and daughter, who lived together in rural Bladen County. That horrible coincidence set the course for Sledge’s life.

Sledge’s exoneration is bittersweet. It comes after dozens of mistakes and casual dismissals of his pleas for help. David, the district attorney, ticked through the justice system’s blind spots in Sledge’s case. The system wasn’t what it is now, he said. No DNA testing was available. The best it had – microscopic hair comparison – could only determine that Sledge’s pubic hair was consistent with pieces left on one victim’s exposed torso. Sledge’s escape and the wild testimony of two jailhouse informants made it all seem too obvious during the 1978 trial, which had been moved to Columbus County.

David said Friday that he regretted the system’s weaknesses and any part that court officials played in it. “There’s nothing we regret more to our values as prosecutors than to believe an innocent person is in prison,” David said. He offered Sledge an apology.

Mumma, who first encountered Sledge’s case a decade ago, has had a hard time swallowing all of the ways the criminal justice system failed Sledge – and the amount of time it took to make it right. Clues that should have sent investigators to other suspects were disregarded. None of the nearly 100 fingerprints taken from the crime scene matched Sledge’s. Investigators also collected head hairs from the victims’ bodies, but Sledge had always shaved his bare.

During two decades, Sledge sent dozens of letters to judges, police officials and prosecutors asking that they find and test evidence from his case for DNA. Yet it took nearly 20 years for a clerk to find hairs that would prove his innocence. By happenstance, a Columbus County clerk climbed a ladder in late 2012 while cleaning the evidence vault; she found an envelope flat on the top shelf with the missing hairs. The clerks had been ordered to search for that evidence as far back as 2003.

Without the state’s new apparatus for testing innocence claims, Sledge might have remained in prison. The Center on Actual Innocence and the Innocence Inquiry Commission interviewed dozens of people, testing memories that had faded over decades.  Commission staff discovered crime scene evidence and investigators’ notes that local sheriff’s deputies had said for years had been lost or destroyed.  The commission spent $60,000 on forensic testing.

January 24, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, January 23, 2015

Seven years after Baze, Supreme Court takes up another lethal injection challenge

As reported in this new USA Today piece, taking up a "case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment."  Here is more:

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will likely be heard in April, though it could be held over until the next term begins in October.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.... "States now experiment with various drug formulations that have resulted in multiple malfunctioning executions — indeed, spectacles — over the past year," the challengers' brief says....

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in their eight-page dissent last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

I presume this cert grant will halt all scheduled executions in Oklahoma until the Supreme Court rules.  Left unclear, however, is whether other states will be able to move forward with executions while this case is pending.  This DPIC page with scheduled executions suggest that at least a half-dozen states have more than a dozen serious execution dates scheduled before the Supreme Court is likely to resolve this new case from Oklahoma.

I am sure that these states will try to move forward with executions, especially if their protocols are dissimilar to what Oklahoma does in executions. But I am also sure that death row defendants and their lawyers will urge states to postpone all execution until the Supreme Court rules in this new case (as happened when the Supreme Court first took up this issue eight years ago in Baze v. Kentucky). In short, here we go again!

Recent related posts:

January 23, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

US Sentencing Commission essentially giving up on fixing definition of "crimes of violence"

As noted in prior posts here and here, the US Sentencing Commission earlier this month publish proposed guideline amendments with some modest but significant possible revisions to the federal fraud sentencing guidelines.  One reason these modest proposed guideline changes could be the most consequential reform coming from the Commission this year is because, as noted at the very end of these remarks at by the USSC Chair Patti Saris, it appears the Commission has given up its effort to seek to improve the doctrinal problems surrounding another big part of the federal sentencing guidelines:

I did want to briefly address an issue that does not appear in the proposed amendments.  As I announced at the last public meeting, the Commission held a roundtable discussion this fall on the definition of “crimes of violence” and related terms.  We had hoped that we would be positioned to publish some proposals today as an outgrowth of that very informative roundtable, and we conducted considerable follow up work after that event. But ultimately, after much consideration of this issue internally and consultation with leading experts, the Commission concluded that, given the existing statutory scheme, any attempts by the Commission at this time to clarify these definitions or establish more consistency within the guidelines would likely only lead to more confusion and renewed litigation.  We are currently considering whether it would be helpful for the Commission to issue a report on this issue with recommendations for legislative fixes.

I am a bit disappointed and troubled that the USSC thinks the best way now to deal with all the confusion and litigation over some key guideline terms is just to give up trying to fix these terms. But I also understand the challenge the USSC faces given that these terms are so significant in federal statutes that the Commission cannot itself amend.  And, perhaps usefully, the Commission's struggles here might further embolden the Supreme Court to declare part of the Armed Career Criminal Act unconstitutionally vague as it reconsiders the pending Johnson case (as discussed here).

January 23, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, January 22, 2015

NACDL explains the massive work behind Clemency Project 2014

Download (1)As noted in this prior post, Senate Judiciary Committee Chair Chuck Grassley last week sent this letter to Attorney General Eric Holder asking a number of questions about the relationship between the Justice Department and outside groups working on "Clemency Project 2014." Though AG Holder has not yet, to my knowledge, late last week one of the key groups involved in Clemency Project 2014 described its work and the broader project.

Specifically, the NACDL on Friday sent around this lengthy news release (which I believe was a joint statement by all of the groups working together on this project) titled "Clemency Project 2014: A Historically Unprecedented and Wholly Independent Volunteer Effort By the Nation's Bar." The release merits a full read for those following closely the current activities surrounding federal clemency, and here is an excerpt:

An army of volunteer lawyers are diligently working on behalf of thousands of prisoners who have requested free legal assistance in drafting and submitting clemency petitions. This unprecedented, wholly independent effort by the bar, facilitated by the organizations which make up Clemency Project 2014, seeks to achieve justice for those prisoners. It reflects these organizations' shared commitment to the highest calling of the legal profession.

At its core, Clemency Project 2014 is a vehicle through which attorneys, responding to the Department of Justice's call for the bar to offer free assistance to potential petitioners, may participate in this important initiative.  The Project has not been delegated any responsibility or authority by the Department of Justice.  The Project expects the Department of Justice to treat these petitions as they would any other well-reasoned petition in making its recommendations to the President, who is the sole authority for granting clemency.  Many prisoners have applied directly to the Department of Justice for clemency without using the lawyers working with Clemency Project 2014, and/or are using counsel they identified and retained outside of the Project.

Since its conception less than a year ago, Clemency Project 2014 created a training and case management infrastructure to prepare an army of volunteer lawyers. Indeed, in just a handful of months, the Project:

  • Provided volunteer support from each of the entities to organize a mechanism for outreach to inmates and attorneys, and to develop a technological infrastructure;

  • Received critical funding from the ACLU and supplemental funding from the Foundation for Criminal Justice to fund and recruit three critical staff positions to oversee the effort;

  • Obtained donated office space and technological infrastructure from the National Association of Criminal Defense Lawyers (NACDL);

  • Enabled Project administrators to efficiently review, sort, and assign prisoner requests, and created and implemented an electronic database to efficiently organize detailed prisoner requests for assistance that at last count numbered more than 26,000;

  • Developed and deployed an extensive, multi-hour legal education training program (available on demand to any interested attorney at no charge) to ensure that all volunteer lawyers, from any practice background, will be equipped with the tools necessary to evaluate and prepare petitions for submission to the Office of Pardon Attorney for its review and consideration;

  • Responded to a legal memorandum issued by the Administrative Office of the Courts that opined that federal public defenders may not provide representation in clemency matters, by recruiting additional volunteer attorneys to fill the void while federal defenders continue to assist in gathering documents on behalf of former clients, and to provide administrative support for the Project;

  • Worked with the Lawyers Committee for Civil Rights Under Law to recruit more than 50 large firms, bringing hundreds of additional lawyers to the process;

  • Established and implemented a multi-tier process to assist volunteer lawyers in identifying potentially eligible applicants and preparing petitions for submission to the Office of Pardon Attorney for consideration....

  • Assigned 5,310 cases to volunteer attorneys;

  • Provided individual notice to several thousand applicants with a sentence of less than ten years, a disqualifying factor under the Justice Department's criteria;

  • Established a website with information for the public, including family members; and

  • Offered ongoing, individual legal support, resource materials, and on demand training to more than 1,500 volunteer attorneys.....

This endeavor has brought in lawyers from vastly diverse practice backgrounds, more than 50 of the nation's largest and most prestigious law firms and law clinics, leading not-for-profit organizations, and the criminal defense bar to answer the call made last year by Deputy Attorney General James Cole before the New York State Bar Association.

Some prior related posts:

January 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, January 21, 2015

Speculating about how new California Supreme Court will now handle capital cases

This new Los Angeles Times article, headlined "Brown appointees to Supreme Court renew hopes in death penalty cases," reviews reasons why some think that new California Justices might mean a new type of California capital justice. Here are excerpts from the piece:

In the long run, the new composition [of the California Supreme Court] could affect an array of cases, including medical malpractice and medical marijuana, but probably will be most felt in the criminal arena. The court, long dominated by former prosecutors, has affirmed about 90% of the death sentences it has reviewed. Criminal defendants rarely win.

"Brown certainly seems to have reshaped this court in a fairly dramatic way," said Jan Stiglitz, a co-founder of the California Innocence Project, which is representing a client in a case before the newly constituted court. Instead of appointing former prosecutors, Stiglitz said, "Brown has brought in not just people from the outside but people who don't have this background that sort of predisposes them to be cynical in criminal cases."

But little experience in criminal law also can be a handicap, critics said. Former prosecutors have "stared evil in the face and know what it looks like," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. None of the Brown appointees have had prior judicial experience. "The academic view of criminal law is what produces bad decisions," Scheidegger said.

[Mariano-Florentino] Cuellar, the court's only Latino, is a former Stanford law professor. [Leondra] Kruger, the only African American justice, has worked primarily in Washington, where she represented the federal government in cases before the U.S. Supreme Court. Justice Goodwin Liu, Brown's first appointee last term, was a law professor at UC Berkeley....

Legal analysts expect the Brown justices may form a new majority with Justice Kathryn Mickle Werdegar, a moderate to liberal Republican appointee.  Unlike the other Republican appointees, she was never a prosecutor.  She worked for the federal government on civil rights matters and as staff attorney on appellate courts.

January 21, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Should a court hearing be required anytime a registered sex offender seeks entry to a public school?

The question in the title of this post is prompted by this notable article from Virginia headlined "ACLU questions new sex offender bill." Here are the details:

Their faces and address are already public, now one Virginia lawmaker wants registered sex offenders to face public hearings before going inside schools.  To have access to Virginia public schools, House Bill 1366 would require violent sex offenders to pay for a newspaper ad publicizing a personal court hearing.  It would run once a week for two weeks. Then anyone could attend the hearing and testify against them.

The bills author, Delegate Jeff Campbell, says it’s about safety, but the ACLU says it crosses the line of civil rights.  “The public hearing is simply an invitation for an angry mob to gather at a school and get in the way of a parent’s right to be involved in the education of his or her child,” said ACLU of Virginia’s Executive Director Claire Gastanaga.

Gastanaga said there is no real proof that registries and restrictions like this keep kids safer. He said the most direct impact of the bill would be on parents with kids in school who want to go and meet with the kids’ teachers.

Delegate Campbell disagrees: “I disagree totally, what it does is it gives parents of the other children a say in who is around their children.”... “The public’s right to know who is around their children and to have a say in whether they agree in that or not trumps that individual’s right to free access to the school,” he said.

Currently, sex offenders must inform school superintendents before they go inside a Virginia school. Delegate Campbell said there was an incident last year in Wise County where a parent did that and got permission to attend sporting events, but then started showing up to school at other times. Parents got upset and that is the reason for his bill.

A subcommittee unanimously passed the bill on Monday, but there is no set date yet for it to go before the full committee.

Because Virginia's court system is surely already pretty crowded, the burden this bill will create for state court personnel strikes me as significant and notable. A bit of research revealed that there are about 20,000 registered sex offenders in Virginia. Even if only 10% of that group has good reason to go to a public school each year, the Virginia court system is going to have to handle 2000 more annual hearing to consider (and supervise?) any school visit.

January 21, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Tuesday, January 20, 2015

A (too) brief 2015 State of the Union mention of criminal justice issues

At the tail end of a lengthy speech mostly focused on economic issues and foreign affairs, President Barack Obama in his 2015 State of the Union Address mentioned a few matters that should intrigue those focused on federal criminal justice issues.  Here are the passages from this CNN text of the SotU speech that caught my attention:  

As Americans, we have a profound commitment to justice -- so it makes no sense to spend three million dollars per prisoner to keep open a prison that the world condemns and terrorists use to recruit.  Since I've been President, we've worked responsibly to cut the population of GTMO in half.  Now it's time to finish the job. And I will not relent in my determination to shut it down. It's not who we are....

We may have different takes on the events of Ferguson and New York. But surely we can understand a father who fears his son can't walk home without being harassed. Surely we can understand the wife who won't rest until the police officer she married walks through the front door at the end of his shift. Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.

The absence of anything more substantive or substantial about federal criminal justice reform confirms my sense and fear that President Obama is more content simply to support criminal justice reforms pushed by others from behind rather than committed seriously to leading reform efforts from the bully pulpit.

January 20, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (1) | TrackBack

Hoping for (but not expecting) some mention of sentencing reform in 2015 State of the Union

For criminal justice and especially sentencing fans, the most notable aspects of President Obama's State of the Union addresses have been the absence of any discussion of anything having to do with sentencing or criminal justice.  Notably, the Obama era SOTU silence on sentencing issues contrasts with President George Bush's discussion of reentry and capital defense in his 2004 and 2005 SOTU speeches.  

Calling America "the land of second chance," President Bush in his 2004 State of the Union Address spotlighted prisoner re-entry issues and proposed "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."  And asserting that in America "we must make doubly sure no person is held to account for a crime he or she did not commit," President Bush in his 2005 State of the Union Address said he was going to send "to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side." 

I am expecting that President Obama in his 2015 State of the Union Address scheduled for tonight may finally say something about criminal justice issues, in part because I think he will want to say something about race and policing issues in the wake of Ferguson and his creation of a Task Force on 21st Century Policing.  But, as the title of this post reveals, I am not really expecting to hear tonight any discussion of sentencing law and policy  issues even though many in Congress and throughout the nation are concerned about the modern status quo and prospects for federal reforms.

On this front, Andrew Cohen at The Marshall project put together this terrific new piece headlined "‘My Fellow Americans …’: Reimagining the president's State of the Union speech," in which he got "a group of people who think deeply and regularly about criminal justice to share what they would like President Obama to say."   I was honored to be one of the people who Andrew Cohen asked to share my thoughts, though I find most notable what Senator Patrick Leahy, (D-Vt.) had to say:

The biggest issue facing our justice system today is our mass incarceration problem. The president has said before that we should enact laws that ensure “our crime policy is not only tough, but also smart.”  But tonight, while he has the attention of every member of Congress and the American people, I want to hear the president say that he supports an end to all mandatory minimum sentences, as I do.  Mandatory minimums are costly, unfair, and do not make our country safer.  For too long they have served as an easy way to score cheap political points: Want to prove you're tough on crime? Just add another mandatory minimum to the law. No need to bother with evidence that they do not make us safer; they make a nice talking point. That policy fallacy is one of the reasons we have the largest prison population in the world. And why $7 billion – nearly a third of the Justice Department’s budget – goes to the Bureau of Prisons instead of to community policing, victims services, or prison diversion programs that would make us safer and save taxpayers money.

Reagular readers will not be surprised to hear that I support the substance of what Senator Leahy is saying here.  But I am personally a bit surprised that the a ranking member (and former Chair) of the Senate Judiciary Committee is saying he think it is important for an executive branch official to say he opposes a legislative sentencing problem that Congress itself created and seems unable or unwilling to address dynamically. 

January 20, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS rules in favor of prisoner's RLUIPA claim and capital defendant's AEDPA contention

The Supreme Court handed down a few opinions this morning, and two of them involve notable victories for criminal defendants (and notable reversals of the Eighth Circuit).  

Via a unanimous ruling in Holt v. Hobbs, No. 13- 6827 (S. Ct. Jan 20, 2015) (available here), the Court explains why a rigid prison beard policy wrongfully infringes religious rights. Here is how the opinion, per Justice Alito, gets started:

Petitioner Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate and a devout Muslim who wishes to grow a 1⁄2-inch beard in accordance with his religious beliefs. Petitioner’s objection to shaving his beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition. We hold that the Department’s policy, as applied in this case, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., which prohibits a state or local government from taking any action that substantially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering a compelling governmental interest.

We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise.  Although we do not question the importance of the Department’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband.  And we conclude that the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests.  We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit.

Via a summary reversal in Christeson v. Roper, No. 14-6873 (S. Ct. Jan 20, 2015) (available here), the Court explains why lower federal courts were too quick to preclude a capital defendant from arguing a habeas deadline ought to be tolled.  Here is how the Court's per curiam decision gets started:  

Petitioner Mark Christeson’s first federal habeas petition was dismissed as untimely. Because his appointed attorneys — who had missed the filing deadline — could not be expected to argue that Christeson was entitled to the equitable tolling of the statute of limitations, Christeson requested substitute counsel who would not be laboring under a conflict of interest.  The District Court denied the motion, and the Court of Appeals for the Eighth Circuit summarily affirmed. In so doing, these courts contravened our decision in Martel v. Clair, 565 U. S. ___ (2012).  Christeson’s petition for certiorari is therefore granted, the judgment of the Eighth Circuit is reversed, and the case is remanded for further proceedings.

Notably, in Holt, Justices Ginsburg and Sotomayor concurred in a little separate opinion to provide a bit of their own spin on RLUIPA.  And in Christeson, Justices Alito and Thomas dissent from the summary reversal because they would have preferred full briefing concerning a "question of great importance" regarding "the availability of equitable tolling in cases governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)."

January 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?

The question in the title of this post is my first reaction to this lengthy Denver Post piece discussing what to expect now that jury selection is about to begin in the Colorado's high-profile capital trial of Aurora theater shooter James Holmes.  The piece is headlined "Aurora theater shooting trial could strain limits of jury service," and here are some excerpts:

After 50 days of testimony and deliberations, the jurors who decided the fate of Oklahoma City bomber Timothy McVeigh emerged haunted. "Have you ever seen 12 people cry?" one juror told reporters about deliberations for the 1997 verdict, handed down in a federal courtroom in Denver.  "I'm 24," another said, "But I don't feel 24 anymore."

Pummeled with horrific accounts of the attack, freighted with finding justice amid tragedy, the jurors had been pushed to near shattering. "I personally felt subject to the same sort of trauma that some of the victims and survivors went through," another said.

Now, imagine if that trial had lasted twice — even three times — as long.  The trial of Aurora movie theater gunman James Holmes, which starts Tuesday with jury selection, is expected to be so lengthy and arduous that it could strain the very process of justice it seeks to uphold.

Nine thousand potential jurors — one of the largest pools in American history — have been summoned for the case.  If picked, jurors will be ordered to serve for as long as five straight months, longer than any state criminal trial in memory in Colorado. They will weigh whether Holmes was sane in July 2012, when he killed 12 people inside the Century Aurora 16 movie theater and tried to kill 70 others, and, if they find he was, they will decide whether he should be executed.

For their service, they will be guaranteed a wage of only $50 a day, a rate that could plunge their income to near the federal poverty level.  Even harder, during what will likely be the most stressful time of their lives, they will be forbidden from talking to anyone about the experience — not their family or fellow jurors or counselors.  Until deliberations begin sometime late this year, the jurors will bear that stress in silence, despite a growing body of research that shows jury service on traumatic cases can lead to mental and physical illness and impact jurors' decision-making....

Since the 1930s, perpetrators of public mass shootings nationwide are more likely to die at the scene than to be captured, according to research by Minnesota Department of Corrections official Grant Duwe.  Of the 45 percent who were arrested, only a fraction ever faced a jury.  And even fewer of those were charged with killing in an attack as devastating to the community as Holmes is for the Aurora theater shooting.

William Bowers, a researcher for the Capital Jury Project at the State University of New York in Albany, likens the theater shooting trial to that currently taking place for one of the suspected Boston Marathon bombers.  "There's nothing really comparable to these cases in modern experience, in terms of duration of the trial and effect on the jury," Bowers said....

But, at its most extreme limits, jury service can become less of a duty and more of an ordeal, legal experts say.  Studies have shown that jurors in traumatic trials can suffer from insomnia, anxiety, anger and depression.  One study documented cases of jurors who broke out in hives, developed ulcers or increased their alcohol consumption while serving at trials. And after the trial is over, some jurors have said they experienced flashbacks....

In recognition of the strains of jury service, courts across the country increasingly offer counseling to jurors. Jon Sarche, a spokesman for the Colorado Judicial Branch, said counseling will be made available to jurors in the theater shooting case once the trial is over.  But — because judges routinely order jurors not to talk about the case with anyone, to protect the trial's integrity — counseling is almost never available to help jurors manage stress during the case.

While this piece effectively highlights some economic and human costs to be borne the jurors in this case, the question in the title of this post also suggests thinking about the economic and human costs sure to burden the lawyers and the court system throughout this case.  And, as the question in the title of this post is meant to highlight, these costs are all endured in service now only to having Holmes sentenced to death; inevitable appeals and other factors will likely mean Holmes is unlikely ever actually to be executed by Colorado for his crimes.

I suspect these kinds of costs and uncertainties explain (and clearly justify?) why the feds were willing to cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).  But Colorado prosecutors in this case appear quite committed to enduring all these costs in service to trying to get James Holmes sentenced to death. 

Recent and older related posts (with lots of comments):

January 20, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, January 18, 2015

Highlighting that most prisoners in Wisconsin now sent there for parole or probation violations

B99420782z.1_20150117211308_000_g199j1go.1-0This lengthy Milwaukee-Wisconsin Journal Sentinel article highlights the interesting reality of just who gets sent to prison in the Badger State and how. The piece carries this headline and subheading: "No new conviction, but sent back to prison; Re-incarceration for rule, parole violations costs taxpayers millions." Here is how the article starts:

More than half of the nearly 8,000 people sent to Wisconsin's prisons in 2013 were locked up without a trial — and they weren't found guilty of new crimes.  Some were punished for violating probation or parole by doing things such as accepting a job without permission, using a cellphone or computer without authorization, or leaving their home county. Some were suspected of criminal activity, but not charged.

Re-incarcerating people for breaking the rules costs Wisconsin taxpayers more than $100 million every year. The process that forces violators back behind bars relies largely on the judgment of individual parole agents, which can vary widely. Once accused of violations, people on parole can be sent back to prison for years without proof beyond a reasonable doubt — and they are left with little chance of a successful appeal.

Hector Cubero's agent, for example, recommended he be returned to prison on his original sentence of life with the possibility of parole after he inked a tattoo on the shoulder of a 15-year-old boy. The tattoo featured a cross and a quote from peace activist Marianne Williamson: "Our deepest fear is not that we are inadequate, our deepest fear is that we are powerful beyond measure."

Cubero maintains the teen lied about his age. Had Cubero been found guilty of tattooing a minor, a city ordinance violation, he would have been ticketed and fined $200. If he had been convicted of tattooing without a license, a misdemeanor, he could have been fined $500 and faced a maximum of 30 days in jail. But because he was on parole at the time, Cubero, 52, has served more than two years — with no guarantee he will ever go home.

Cubero already had spent more than 27 years behind bars for being a party to the crimes of first-degree murder and armed robbery. Court records show Cubero, 18 at the time of the offense, did not plan the robbery or fire the shots that killed the victim, a Milwaukee dentist.

Until the parents of the 15-year-old complained about the tattoo, Cubero had never violated parole, according to Corrections Department records. During the four years he'd been free, he passed all his drug tests, paid his restitution and court costs and worked fairly steadily. Nonetheless, Cubero's parole agent recommended he be sent back to prison. The agent, with cooperation from a prison social worker, also blocked his fiancée, Charlotte Mertins of Delafield, and her three children, all in their 20s, from visiting him.

January 18, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, January 17, 2015

"If crime is falling, why aren’t prisons shrinking?"

Cbpp_statesThe title of this post is the headline of this notable Boston Globe commentary. Here are some excerpts:

The prison population in Massachusetts has tripled in size since 1980. That’s faster than the state economy has grown and even faster than the rise in obesity. Massachusetts is hardly alone in this. Prison populations have mushroomed all across the United States, occasionally reaching rates far higher than anything seen here.  But while many states are now experimenting with approaches that ease criminal penalties, Massachusetts has taken few steps in this direction.
How many people are in prison? About 165 of every 100,000 people in Massachusetts are currently serving prison sentences of a year or longer. That number used to be a lot lower. In the late 1970s, just 50 of every 100,000 people were in state prisons.  You can find this same upward trend most everywhere in the United States; across the country, roughly 430 of every 100,000 people are in state prisons.
 Why has the prison population grown so rapidly? Initially, the growth in prison populations was a response to the surge in crime that shook American cities in the ’60s and ’70s. Faced with eruptions of violence, states everywhere began to put more people in prison and to increase the length of prison sentences.
Despite the fact that crime rates have declined dramatically since the early 1990s, those policing techniques and sentencing laws stayed in place. As a result, the prison population remains elevated....
Liberal and conservative states alike have begun to reassess the efficacy of their incarceration policies.  Partly, that’s about the strain on state budgets — building and maintaining prisons has proved extremely costly. But it’s also because of new research showing that it’s possible to loosen criminal penalties and reduce crime at the same time.
Over the last few years, the states that made the biggest reductions to their prison populations, including New Jersey and Connecticut, have also seen some of the biggest drops in crime.
Since 2008, 29 states have seen both lower crime rates and smaller prison populations. “Justice reinvestment” is the term being used to describe this effort, and what it involves is a careful cost-benefit analysis to see how states can simultaneously keep people out of prison, reduce crime, and save money. Among other things, states are experimenting with:
Looser drug laws. Over a dozen states, from California to Maine, have stopped sending people to prison for possessing small amounts of marijuana. And even with more serious drugs, it can be more effective — and cheaper — to help people get treatment. Texas has invested millions of dollars in treatment programs for drug offenders.
Electronic monitoring. Only recently has it become possible to effectively monitor people without putting them in prison. For those awaiting trial or struggling to keep up with the conditions of their parole, an ankle monitor can be a relatively inexpensive alternative to confinement. New Jersey is one of the states making use of this technology.
Therapy. Some forms of cognitive-behavioral therapy have been shown to keep one-time criminals from becoming two-time criminals, which is good for the public and good for state budgets. Dozens of different states have experimented with these therapies.
What reforms are being tried in Massachusetts? Given that the prison population in Massachusetts is far smaller than elsewhere in the United States, there’s less urgency around issues of reform.  Still, Massachusetts devotes about 3 percent of its budget — over $1 billion each year — to corrections. That’s twice what we spend on early education and roughly the same amount that we devote to higher education....
During his time in office, Governor Patrick had said he hoped this new information would revitalize the state’s sentencing commission, but it’s a big step from data-gathering to policy-making.  For now, other states seem to be taking the lead in the effort to find targeted reforms that can safely reverse the decades-long increase in prison populations.

January 17, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS takes up a few small criminal justice case along with big marriage questions

As highlighted by this Lyle Denniston post at SCOTUSblog, yesterday's big Supreme Court news was its decision to finally grant cert to consider the legal and constitutional status of same sex marriage.  But this same post also notes that SCOTUS also granted review on four other cases, three of which have criminal justice elements:

In addition to the same-sex marriage cases, the Court agreed on Friday to hear four other new cases, all of which are also expected to be argued in April.  Here, in summary, are the issues in those other cases:

In Mata v. Holder, the Court will be ruling on the authority of federal appeals courts to delay a deadline for a non-citizen to seek reopening of a deportation case with a claim that his lawyer was ineffective.

In Horne v. U.S. Department of Agriculture, the Court agreed to decide whether an unconstitutional seizure of part of a California raisin crop occurs when the federal government requires the private grower to take it off the market to help keep raisin prices up....

In McFadden v. United States, the issue is whether federal prosecutors must prove that an individual accused of distributing a substance actually knew that the material was a substitute for (an “analogue” of) an illegal narcotic drug.

In Kingsley v. Hendrickson, the Court will clarify when the police use of force against an individual who is being held awaiting a criminal trial is unconstitutionally excessive.

January 17, 2015 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack