Sentencing Law and Policy

Alaska Supreme Court finds due process flaw in state's sex offender registry scheme

Last Friday, the Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375  (Alaska June 14, 2019) (available here) decided that part of its state’s Sexual Offender Registration Act violates due process.  Here is how the majority opinion starts and concludes:

&This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second iswhetherASORAviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness....

The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The former prevent retroactive application of the act under the ex post facto clause of the Alaska Constitution,but they do not preclude imposing registration duties on out-of-state offenders who are present in the state.

The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.

The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

Noting that nearly all Democratic candidates are against the death penalty

This lengthy new San Francisco Chronicle article, headlined "Nearly all Democratic candidates oppose death penalty as public opinion shifts," reports on the new political reality surrounding death penalty view of leading candidates.  Here are excerpts:

Not so long ago, opposing the death penalty was pretty much a death knell for a presidential candidate.  Michael Dukakis, for one, sank his remaining hopes in 1988 when he told a debate questioner he would oppose execution even for someone who had raped and murdered his wife.

Now, in what appears to be another sign of a public turnabout on the issue, nearly all of the Democratic presidential hopefuls — with the notable exception of former Vice President Joe Biden — say they are against capital punishment....

If candidates “thought they were going to hurt themselves by coming out against the death penalty, I really think very few would do it,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles who specializes in election law and governance.  “I think the consensus (among candidates) is, this is where public opinion is or is about to be.”

Opinion polls indicate a decline in nationwide support for the death penalty, from 80% in a 1994 Gallup survey to 56% in October 2018.  A Quinnipiac University poll in March 2018 found that respondents favored life without parole over the death penalty for murder by 51% to 37%. And the polls say Democrats, who will vote in next year’s primaries, are more than three times as likely as Republicans to oppose the death penalty.

The president ... has direct authority over only the federal death penalty, which accounts for a fraction of the more than 2,700 death sentences now pending in the United States, including 735 in California.

Condemned federal prisoners include a few notorious cases — like Tsarnaev and Dylann Roof, the white supremacist who slaughtered nine African Americans at a South Carolina church in 2015 — but most of the 62 were convicted of murders that came under federal jurisdiction because they took place in federal prisons or other U.S. property or were connected to federal drug crimes.  The last federal execution took place in 2003.

Somewhat relatedly, Nicholas Kristof has this lengthy essay in the New York Times proving arguments for death penalty opposition unde the headline "When We Kill: Everything you think you know about the death penalty is wrong."

"Science and Ethics of Algorithms in the Courtroom"

The title of this post is the title of this new paper authored by Kia Rahnama now available via SSRN.  Here is its abstract:

This Article analyzes the societal and cultural impacts of greater reliance on the use of algorithms in the courtroom.  Big-data analytics and algorithms are beginning to play a large role in influencing judges’ sentencing and criminal enforcement decisions.  This Article addresses this shift toward greater acceptance of algorithms as models for risk-assessment and criminal forecasting within the context of moral and social movements that have shaped the American justice system’s current approach to punishment and rehabilitation.

By reviewing salient problems of scientific uncertainty that accompany the use of these models and algorithms, the Article calls into question the proposition that greater reliance on algorithms in the courtroom can lead to a more objective and fair criminal sentencing regime. Far from liberating the society from the biases and prejudices that might pollute judges’ decision-making process, these tools can intensify, while simultaneously concealing, entrenched cultural biases that preexist in the society.

Using common themes from the field of Science and Technology Studies (STS), including boundary-work analysis and Public Understanding of Science (PUS), this Article highlights unique technical characteristics of big-data analytics and algorithms that feed into undesirable and deeply-held values and beliefs.  This Article draws attention to specific gaps in technical understanding of algorithmic thinking, such as the black box of algorithms, that can have discordant impact on communicating uncertainty to the populace and reduce accountability and transparency in regulating the use of algorithms.  This Article also provides specific policy proposals that can ameliorate the adverse social and cultural effects of incorporating algorithms into the courtroom.  The discussion of policy proposals borrows from the STS literature on public participation in science and encourages adoption of a policy that incorporates diverse voices from political actors, most affected communities, and the offenders themselves.

"Criminal Clear Statement Rules"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and Joseph Edward Kennedy available via SSRN. Here is its abstract:

There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive.  Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws.  The problems of over-criminalization thus seems to be both a predictable yet intractable consequence of the incentives that legislatures face.  But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes.

The Supreme Court has created clear statement rules to protect important values, such as federalism and the separation of powers.  Legislatures can overcome those values, but only if they do so affirmatively and unambiguously.  Just as existing clear statement rules protect important structural values, new criminal clear statement rules would protect important criminal justice values.  Unless statutes clearly state that they reject those values, clear statement rules will result in statutory interpretations that better protect the interests of criminal defendants. 

The result will be clearer and more thoughtful criminal laws — both because legislatures will write better statutes and because judges will construe poorly drafted statutes in a more narrow and predictable manner.  In addition to making the case for criminal clear statement rules as a general interpretive tool, this Article proposes two specific clear statement rules.  One rule would create a default presumption of a knowing mental state requirement for material elements.  The other would impose a substantial harm requirement.  Both would markedly improve the state of modern criminal law.

Two different stories undermining prosecutors' claims that "we do not make the laws, we just enforce them"

Criminal justice reformers have come to give so much attention to the role of prosecutors because of the wide-spread realization of the profound power of prosecutors to shape the nature and application of modern criminal justice systems.  In this context, some prosecutors are eager to claim that they ought not be the focus of so attention (and criticism) because they are just tasked with enforcing the law and not making it.  Usefully, Josie Duffy Rice last year in in this commentary at The Appeal, headlined "Prosecutors Aren’t Just Enforcing The Law  — They’re Making It," did a terrific job highlighting numerous examples of how "DA associations are using [their] power to defeat a wide range of bipartisan reform efforts."  Similarly, others have spotlighted how, in this words of this piece, "Prosecutors Are Banding Together to Prevent Criminal-Justice Reform." 

Two recent stories about prosecutors, one state and one federal, have me thinking about these issues today.  The state one comes from Oregon and provides another example of prosecutors trying to shape the applicable criminal law.  It is reported in this new local article fully headlined: "District Attorneys Quietly Passed the Hat to Overturn New Oregon Laws Reducing Jail Time; Emails newly obtained by WW illustrate a deep divide in the state, between the people who make the laws and the people who enforce them."

The federal story is not about prosecutors seeking to make the law, but rather about their disinclination to enforce the law against persons from their ranks.  This Hill commentary, headlined "Feds gone wild: DOJ's stunning inability to prosecute its own bad actors," explains the ugliness here:

One was caught red-handed engaged in nepotism.  Another, a lawyer no less, admitted to shoplifting at a Marine barracks store.  A third leaked sealed court information to the news media. And a fourth engaged in fraud by turning a government garage into a personal repair shop.

Four cases, all solved in the past month, with suspects who cost taxpayers hundreds of thousands of dollars and significant breaches of public trust.

But these weren’t your everyday perps.  All were U.S. Department of Justice (DOJ) employees who are supposed to catch other criminals while working for the FBI, the Drug Enforcement Administration (DEA) and U.S. attorneys’ offices. Instead, they broke the law or violated the rules.  And all managed to escape prosecution, despite their proven transgressions.

Recent Justice Department disciplinary files tell an undeniable story. Under the leadership of Inspector General (IG) Michael Horowitz, DOJ’s internal watchdog is doing an outstanding job of policing bad conduct inside America’s premier law enforcement agency.

And DOJ is doing a poor job of punishing its own.  In cases closed in the past month, more than a half-dozen FBI, DEA, U.S. attorney and U.S. marshal officials were allowed to retire, do volunteer work, or keep their jobs as they escaped criminal charges that everyday Americans probably would not.

So, these stories reveal what insiders have long known: prosecutors do help make and shape our criminal laws, and they sometimes do not enforce them.

"The Myth of Bipartisan Death Penalty Abolitionism"

The title of this post is the headline of this notable recent commentary by Charles Fain Lehman at the Washington Free Beacon. I recommend the whole piece, which is a response in part to a recent Atlantic commentary noted here.  Here is how Lehman's piece starts and ends (with links from the original):

Did you know that Republicans are "quietly turning against the death penalty"?  So sayeth the Atlantic, in a lengthy story published Sunday in the wake of New Hampshire's abolition of the death penalty.  Sunday's article is just the latest in "conservatives who oppose the death penalty" coverage.  Google some combination of "death penalty," "conservative," and "oppose" and you will find similar stories from outlets like the Guardian, Wall Street Journal, and Washington Post.

The Atlantic piece neatly summarized the tenor of such stories: "death-penalty reform has quietly broken through as a bipartisan issue — one that could portend a shaky future for capital punishment in the U.S."

The basis of this argument is that a handful of Republican state legislators have authored or signed on to legislative proposals to end the death penalty.  But the implication is that conservatives are slowly but steadily getting in line behind the liberal consensus against the death penalty.  That's total nonsense.  Let's look at the data.

The General Social Survey, a major survey of public opinion administered by the National Opinion Research Center at the University of Chicago, has routinely asked respondents about their views on the death penalty since 1974; it also tracks respondents' political views.  The results are pretty clear: Roughly three in four conservatives support the death penalty, and have done so at at least that rate since the 1970s....

To be sure, there are self-identified conservatives who oppose the death penalty, in much the same way that there are self-identified conservatives who call themselves pro-choice or reject the right to keep and bear arms.  But the survey data show that abolition has been and remains a clear minority view, among conservatives and indeed among Americans generally.

Why, then, does the mainstream media keep pushing the narrative that there is some emerging conservative consensus against the death penalty?  Why do they keep regurgitating the talking points of the same few advocates?  (The Atlantic article conspicuously lacks a quote from any expert who represents the majority of Americans who support the death penalty.)

On this we can only speculate.  But one thing is clear: When it comes to the death penalty, most of the media is on one side, and most conservatives — indeed the majority of Americans — are on the other.

Brennan Center "final analysis" reports notable crime drops in major cities for 2018

This week the Brennan Center released this new data analysis of 2018 murders and crime rates in 30 major US cities under the titled "Crime in 2018: Final Analysis."  This short report, authored by Ames Grawert and Cameron Kimble, is summarized on this webpage in this way (with links from the original):

In this final analysis of crime rates in 2018, we estimate that rates of violent crime, murder, and overall crime declined in the 30 largest American cities, with significant declines in murder. The data in this report are collected directly from local police departments. The FBI’s final 2018 data, covering the entire United States, will be released in September. 

 

The data reported here refine an initial Brennan Center report released in September, Crime and Murder in 2018: A Preliminary Analysis, which concluded that “increases in the murder rate in 2015 and 2016 were temporary, rather than signaling a reversal in the long-term downward trend” in crime and violence.  A December update reached the same conclusion, showing rates of crime, violent crime, and homicide all declining. These continuing declines indicate that, while increases in crime in 2015 and 2016 merit further study, they did not signal the start of a new “crime wave.” 

 

Updated Tables 1 and 2 support conclusions similar to the Brennan Center’s September and December reports, and now include complete data through the end of the year:

 

Murder: The 2018 murder rate in the 30 largest cities is estimated to have declined by 8.0 percent since 2017.  This finding indicates that the major-city murder rate will approximate 2015 levels but remain above 2014’s low point.

 

Modest declines in most cities explain this decrease.  The murder rate in Chicago, which increased significantly in 2015 and 2016, declined by nearly 12 percent but remains roughly 40 percent above 2014 levels.  Baltimore, another city that continues to struggle with violence, also saw its murder rate decline by 9.1 percent.  While Las Vegas saw its murder rate decrease significantly, by more than 40 percent, part of this decline is attributable to the mass shooting at the Mandalay Bay Resort, which led to an unusually high homicide total in 2017.

 

Some cities saw their murder rates rise in 2018, such as Washington, DC (35.6 percent) and Philadelphia (8.5 percent).  These increases suggest a need to better understand how and why murder is increasing in some cities.  New York City’s murder rate also increased, but by less than 1 percent, making it essentially the same as the 2017 rate. 

 

Crime: The overall crime rate in the 30 largest cities in 2018 is estimated to have declined slightly from the previous year, falling by 3.5 percent. If final FBI data track these findings, crime will have again reached a record low, driven by declining rates of property crime.

 

Violent Crime: The violent crime rate is also estimated to have declined, falling by 4.0 percent from 2017.

 

Estimates of crime and violent crime are based on data from 25 of the nation’s 30 largest cities; estimates of murder include data from 26 cities. The Brennan Center’s previous report on crime in 2018 is available here, and a report studying crime trends from 1990 to 2016 is available here. 

More on the Rewriting the Sentence Summit

In this post and this post, I flagged this great event, titled "Rewriting the Sentence Summit on Alternatives to Incarceration," taking place next week in New York City hosted by Columbia University and The Aleph Institute at Columbia Law School. Today, Hanna Liebman Dershowitz has this new piece in the New York Law Journal about the event and related work under the headline "Rewriting the Sentence Means Choosing New Words."   Here is an excerpt:

Next week, hundreds of key stakeholders in our criminal legal system are gathering at The Aleph Institute’s Rewriting the Sentence summit on alternatives to incarceration at Columbia Law School. Rewriting the Sentence is part of Aleph’s multi-pronged strategic initiative to drive change in our system of punishment away from the reflexive and harsh overuse of incarceration.

These projects are shining a light on the vast array of innovative alternatives to incarceration springing up all over the country, and bridging gaps in knowledge and research about what are best practices and how to understand the culture shift that is happening. The summit will bring together the very people who make decisions each day that impact the lives of the millions of people who pass through our criminal justice system each year and reexamine the tools available to hold people accountable so that prison is no longer considered the main one. The summit will advance the conversation around how to define and nudge the culture shift already happening in this arena.

Aleph is formally announcing at the summit the establishment of the Center for Fair Sentencing, which will host a digital portal and maintain a clearinghouse on alternatives to incarceration.  This clearinghouse will bind together the community of stakeholders exploring or exemplifying the best practices in alternative programs, providing data and analysis; lift up examples of programs using data-informed approaches and best practices; publish turnkey guides, such as one for establishing alternative programs; proffer policy white papers and reports; and advocate for expansion of the use of non-custodial approaches.

As America’s criminal justice system continues to shift away from an unthinkingly harsh mindset, other terms belong on the rebranding block too, such as “alternatives to incarceration” and “alternative sentencing.”  These phrases lock us into the lock-’em-up mentality we so badly need to escape. What we really should be thinking of is alternatives to punishment, not incarceration.

Prior related posts:

• "Rewriting the Sentence Summit on Alternatives to Incarceration"
• Exciting agenda for "Rewriting the Sentence Summit on Alternatives to Incarceration" 

White House promotes efforts to provide job opportunities for former prisoners

Continuing its energetic criminal justice reform efforts, the White House today held a public event to promote reentry support for former prisoners.  This AP piece provides these (celebrity) highlights:

Reality star-turned-criminal justice reform advocate Kim Kardashian West returned to the White House on Thursday to help President Donald Trump promote efforts to help those leaving prison get jobs and stay on track.

At an East Room event attended by Cabinet secretaries, activist and formerly incarcerated people, Kardashian West announced the creation of a new ride-sharing partnership that will give former prisoners gift cards to help them get to and from job interviews, work and family events....

Trump pronounced himself a fan of Kardashian West’s advocacy, praising her genes and declaring, “I guess she’s pretty popular.” And he marveled at the passage of the First Step Act, which he signed into law late last year....

The White House has since been working with various companies, advocacy groups and federal agencies to try to give prisoners released early the tools and jobs they need to successfully adjust to life outside prison so they don’t wind up behind bars again....

Trump has embraced the efforts originally pushed by his son-in-law and senior adviser Jared Kushner to make changes to the criminal justice system, using them to highlight the low unemployment rate and paint himself as a president focused “on lifting up all Americans.”  It’s a deeply personal issue for Kushner, whose father spent time in federal prison when he was younger.

In addition to the ride share vouchers, Trump announced several other measures, including stepped-up efforts by the Federal Bureau of Prisons to work with businesses to help line up jobs for those being released and additional funds for states to support companies that hire former inmates.  He said his administration hopes to cut the unemployment rate for formerly incarcerated people to single digits within five years.  “Now we much make sure that the Americans returning from prison get a true second chance,” he said.

In addition, the White House has released the following fact sheet and remarks:

• "President Donald J. Trump Is Helping Americans Gain a Second Chance to Build a Brighter Future"

• "Remarks by President Trump on Second Chance Hiring"

US Commission on Civil Rights releases big report on "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities"

The US Commission on Civil Rights has today released this huge new report titled "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities."  The report runs over 150 pages and provide a comprehensive modern accounting of collateral consequences along with reform recommendations.  The introductory letter from the Commission Chair at the outset of the report provide this summary:

This report provides an overview of the relevant data and arguments for and against the imposition of collateral consequences on people with criminal records.  Each year, federal and state prisons release more than 620,000 people to return to their communities.  While these individuals have often completely exited criminal supervision (for example, through a prison sentence or probation), individuals with criminal records still face potentially thousands of collateral consequences upon reentering society.  These collateral consequences are sanctions, restrictions, or disqualifications that attach to a person because of the person’s criminal history.  For example, individuals with criminal histories can face barriers to voting, jury service, holding public office, securing employment, obtaining housing, receiving public assistance, owning a firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying for military service, and maintaining legal status as an immigrant.  The reach of each collateral consequence extends past people with criminal records to affect families and communities.

The Commission majority (six Commissioners in favor, one Commissioner in opposition) approved key findings including the following: Collateral consequences exacerbate punishment beyond the criminal conviction after an individual completes the court-imposed sentence.  Valid public safety bases support some collateral consequences, such as limitations on working with children for people convicted of particular dangerous crimes.  Many collateral consequences, however, are unrelated either to the underlying crime for which a person has been convicted or to a public safety purpose. When the collateral consequences are unrelated in this way, their imposition generally negatively affects public safety and the public good.

Evidence shows harsh collateral consequences unrelated to public safety increase recidivism by limiting or by completely barring formerly incarcerated persons’ access to personal and family support.  In addition, the general public, attorneys, and the courts often lack knowledge of what the totality of the collateral consequences are in their jurisdiction, how long they last, and whether they are discretionary or mandatory, or even if they are relevant to public safety or merely an extended punishment beyond a criminal sentence.  This absence of public and judicial awareness of collateral consequences of conviction undermines any deterrent effect that might flow from attaching such consequences, separate and apart from the punishment itself, to criminal convictions.  The processes people must undertake to restore rights, for example through applications for pardon or for judicial record sealing, are often complicated, opaque, and difficult to access.

The Commission majority voted for key recommendations, including the following: Collateral consequences should be tailored to serve public safety.  Policymakers should avoid punitive mandatory consequences that do not serve public safety, bear no rational relationship to the offense committed, and impede people convicted of crimes from safely reentering and becoming contributing members of society.  Jurisdictions that impose collateral consequences should periodically review the consequences imposed by law or regulation to evaluate whether they are necessary to protect public safety and if they are related to the underlying offenses.

The Commission majority specifically calls on Congress to limit discretion of public housing providers to prevent them from categorically barring people with criminal convictions from access to public housing; lift restrictions on access to student loans based on criminal convictions, except for convictions related to financial fraud; eliminate restrictions on TANF and SNAP benefits based on criminal convictions; and require federal courts to give comprehensive notice of federal restrictions on individuals’ rights before guilty plea entry, upon conviction, and upon release from incarceration.

"Is ‘Abolish Prisons’ the Next Frontier in Criminal Justice?"

The question in the title of this post is the headline of this effective Bloomberg commentary authored by Bill Keller.  Here are excerpts:

Five years ago, when the activist and cable TV host Van Jones launched the #cut50 campaign to reduce U.S. prison populations by half, many mainstream justice reform watchers rolled their eyes at what seemed to be a reckless overreach.... Now the campaign has attracted an A-list of celebrities, philanthropists and candidates pursuing the Democratic presidential nomination. These days, when Jones gets pilloried, it’s as likely to be for being too compromising: Why stop short of #cut100?

People who follow criminal justice policy for a living say the fastest growing subset of the reform movement consists of abolitionists who say a system that is inherently racist and based on retribution should be pulled up by the roots. Not just prisons and jails, but most of the institutions of law enforcement and criminal justice.

“Abolition has become a rallying cry for the progressive wing of the justice reform movement,” Jeremy Travis told me. “NO NEW JAILS. NO MORE MONEY FOR POLICE. ABOLISH ICE. ABOLISH PRISONS.” Travis, who oversees criminal justice issues for the Arnold Ventures philanthropy, has spent a career in the system, most recently as president of the John Jay College of Criminal Justice in New York. (Disclosure: Laura and John Arnold, the founders of Arnold Ventures, are donors to the Marshall Project, my former employer.) “There is lots of energy behind this reframing of the ‘reform’ agenda,” Travis said.

Prison abolition has decades of antecedents, led by once-fringe figures like Angela Davis, the 1960s communist firebrand, and Ruth Wilson Gilmore, the subject in April of a sympathetic profile in the New York Times Magazine. More recently abolition has been embraced by younger Americans who grew up after violent crime peaked in the early 1990s, and has helped kindle some fundamental rethinking in the mainstream.

Like other radical ideas — Medicare for All, the Green New Deal — abolition means different things to different people. Most of those who rally to the cause do not advocate a world where no one answers your 911 call and serial killers are set loose. Abolition is an ideal — like, say, “repeal and replace.” The real debate is what should replace the current institutions.

“There is always going to be some role for prisons, but maybe 10 percent of what we do now,” said Martin Horn, a former New York State parole director, now a professor at John Jay. “I think we need police. We may not need as many as we now have, and we want to use them differently.”

Abolitionists generally start the conversation with two immense objectives. The first is devolving responsibility for public safety to local communities. (“Civilianizing safety,” some experts call it.) One reason New York City has reduced its crime rate while simultaneously slashing arrests, incarceration and law-enforcement overreach is that the city has a nonprofit network on the ground, some of it subsidized by the city, to combat violence and to help the formerly incarcerated safely reenter society.

Abolitionists’ other aim is to redistribute government spending from police and prisons to narrowing the underlying, crime-breeding inequalities of wealth and opportunity. They would instead invest in housing, education, jobs and health — a goal that seems remote in the current political environment.

What is new, says Elizabeth Glazer, director of New York City’s criminal justice office, is that many of the ideas that animate the abolitionists “are now finding their way into established criminal justice structures” — not just scholars and activists but also prosecutors questioning what crimes should be prosecuted and judges seeking out-of-court remedies....

To reformists who work in or with the system, the abolitionists can be exasperating — a case of the ideal being the enemy of the good. DeAnna Hoskins, president of JustLeadershipUSA, which mobilizes former prisoners to press for reform, points to the campaign that persuaded New York to close the jail complex on Rikers Island. The plan depends on building smaller, more humane jails in four boroughs to house a much-reduced population of prisoners. Along with the inevitable resistance of prospective new neighbors, the city now faces vocal opposition from abolitionists who object to any new jails on principle. “That’s just not realistic,” Hoskins said. “We’re not going to close Rikers on Monday and not have any type of detainment.” She added, “When we talk about abolishing prisons and abolishing law enforcement, it’s actually reducing the power and the reach of those entities.”

One of the liveliest abolition debates concerns parole and probation, which get less attention than incarceration but regulate the lives of 4.5 million Americans, twice as many as are confined in prisons and jails. Because a parolee can be returned to prison for a technical infraction such as a missed appointment or a trace of drugs in a urine sample, the parole-to-prison pipeline is a major feeder of mass incarceration....

Although polling is scarce, it’s a fair bet that “abolition” is not a voter magnet. The electorate may want the system to be less cruel and more rehabilitative, but voters also want a professional answering that 911 call when their kid gets shot — and not a member of neighborhood watch. The bipartisan coalition that has found common ground on criminal justice would be severely strained by such a lurch to the left. The conservative attack ads write themselves.

But in recent years, with crime near historic lows, the iniquities and unintended consequences of American punishment have so captured public concern that even President Donald Trump coughs up an occasional platitude about “giving our fellow citizens a chance at redemption.”

There is a place for higher aspirations, if only to keep moving the middle. Closing Rikers was a radical idea, until it wasn’t. The #cut50 campaign was mocked as unrealistic until people realized that it was essentially restoring incarceration to 1980s levels.  “I don’t think that in my lifetime we’ll ever abolish prisons, but it’s a really important question, why we put people in prisons,” said Travis, adding that the abolition debate is “a healthy tension that is really challenging the pace of reform and the status quo.”

A few prior related posts:

• "Prison Abolition and Grounded Justice" 
• Making a case for prison abolition, not just sentencing and prison reform
• "What Is Prison Abolition?"
• Thoughtful look into prison abolitionism (and prison history) in theory and practice
• Recent Harvard Law Review issue covers prison abolition

Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal

As reported in this NBC News piece about the first sentencing in a high-profile federal criminal matter, "Stanford University's former sailing coach avoided significant prison time and was sentenced to just one day behind bars on Wednesday for his role in a massive college admissions scandal."  Here is more:

John Vandemoer was the first person to be sentenced in the sweeping corruption scandal that exposed the sophisticated network of college admissions ringleader William Rick Singer, who helped children of well-heeled clients cheat their way into elite universities.

U.S. District Court Judge Rya W. Zobel sided with defense lawyers who said their client should not get more than the one day, which the judge dismissed as time served. The government had asked the judge to sentence Vandemoer to 13 months in prison.

Before Wednesday, Vandemoer had already pleaded guilty to one count of racketeering conspiracy for accepting $770,000 in bribes in funds that all went into the school's sailing program. The money did not directly line Vandemoer's pockets, the judge and lawyers on both sides agreed. "From what I know about the other cases, there is an agreement that Vandemoer is probably the least culpable of all the defendants in all of these cases," Zobel said. "All the money he got went directly to the sailing program."

In court on Wednesday, Vandemoer's voice choked with emotion as apologized for his actions. "I want to be seen as someone who takes responsibility for mistakes," he said. "I want to tell you how I intend to live from this point forward. I will never again lose sight of my values."...

Vandemoer received three separate payments of $500,000, $110,000 and $160,000 between fall 2016 and October 2018 on behalf of the Stanford sailing program to falsely represent that three clients of Singer's were elite sailors — and thus deserving of special admission to the private school, according to court documents....

Assistant U.S. Attorney Eric Rosen pleaded with Judge Zobel to send Vandemoer to prison and send a message about the case. "The sentence that you impose will set the tone moving forward," Rosen said. The prosecutor added: "This case goes far beyond John Vandemoer. The damage on Stanford goes much further. The actions undermine the confidence in the college admissions process."

The defense asked for leniency, arguing that the money Vandemoer received didn't go into his pocket, but instead went to a fund that supported Stanford's sailing program. "It cannot be overstated: all parties agree that Mr. Vandemoer did not personally profit from the scheme," defense lawyer Robert Fisher wrote in his sentencing memo to the court. "Mr. Singer sent Mr. Vandemoer money, and he consistently turned that money over to Stanford."...

Zobel also sentenced Vandemoer to two years of supervised release and six months of home confinement. The former coach was also fined $10,000. "I am aware that these are serious offenses," Zobel said. "I find it hard in this case that Vandemoer should go to jail for more than a year."

Of the three students whose parents tried to bribe their way into Stanford, none them actually benefited from Singer and Vandemoer's scheme.  The first one's fake sailing application came too late in the recruiting season and "the student was later admitted to Stanford through the regular application process," according to prosecutors.  The next two opted to go to Brown University and Vanderbilt University, despite Vandemoer's help.

Vandemoer was fired by Stanford on March 12, hours after federal prosecutors unsealed indictments.  "Although Mr. Vandemoer's conduct resulted in donations to the Stanford sailing team, Stanford views those funds as tainted," according to a victim impact statement written to Judge Zobel by Stanford's general counsel, Debra Zumwalt. "Stanford takes no position regarding any specific sentence that this Court may impose."

Because Vandemoer does not pose any real threat to public safety, and because he has already suffered (and will continue to suffer) an array of formal and informal collateral consequences, this sentence certainly strikes me as "sufficient, but not greater than necessary, to comply with the purposes set forth" in federal sentencing law.  I suppose I am not surprised that the feds wanted a significant prison term in this first of many related sentencings, but the recommendation here of 13 months in prison is a reminder that the feds seem to think that just about every convicted defendant ought to be sent to prison for some significant period.

"A New Law Enforcement Agenda for a New Attorney General"

The title of this post is the title of this notable new essay authored by Paul Larkin now available via SSRN.  Here is its abstract:

President Donald Trump’s decision to dismiss U.S. Attorney General Jeff Sessions generated considerable legal and political controversy.  The foci of debate have been whether the President could lawfully appoint Sessions’s chief of staff, Matthew Whitaker, as Acting Attorney General and whether Whitaker was likely to dismiss Special Counsel Robert Mueller, the attorney appointed to investigate Russia’s involvement in the 2016 presidential election.  Lost in the wrangling over those matters is the issue whether the next attorney general should re-examine the direction of federal law enforcement. 

No attorney general has undertaken a comprehensive review of that enterprise for the last fifty years, and members of Congress, scholars, and practitioners have dis-agreed over the proper course.  It is important for the next attorney general to consider taking up that issue even if all he does is start the conversation.  The purpose of this essay is to facilitate that discussion by identifying three issues that the new attorney general should ask the Justice Department, the bench, the bar, the academy, and the public to ponder: (1) On what crimes should federal law enforcement focus?  (2) Which federal law enforcement agency should be responsible for each category of those offenses?  (3) How should we measure a federal law enforcement agency’s success?

Interesting new data on declining capital habeas petitions in federal court

The folks at TRAC recently produced this interesting little data report under the heading "Death Penalty Prisoner Petitions Fall Sharply."  Here is part of the text:

The latest available data from the federal courts show that during April 2019 the government reported only 5 new prisoner petitions challenging their death penalty sentence. According to the case-by-case court records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, there were just 62 death penalty challenges for the first seven months of FY 2019.  They have fallen over fifty percent (51.6%) over the last two years. Petitions are on pace to be the lowest number filed in over a decade.

The comparisons of the number of civil filings for death penalty-related suits are based on case- by-case federal court records which were compiled and analyzed by TRAC...  Since FY 2008, death penalty petitions reached a peak during FY 2009 when they totaled 245. The previous low was five years ago in FY 2014 when they fell to 162. If the current pace of filings continues during the remaining months of FY 2019, filings are projected to be only slight above one hundred this year.

Absent some other data or distinctive explanation, this seems like a pipeline story: in the 198-s and 1990s, there were lots of state death sentences imposed, resulting in lots of capital habeas challenges reaching the federal courts decades later. In years, the number of state death sentences have declined (see DPIC data here), meaning that the number of subsequent federal habeas challenges have declined.

"Bail and Mass Incarceration"

The title of this post is the title of this paper recently posted to SSRN and authored by Samuel Wiseman.  Here is its abstract:

It is widely known that the United States has the highest incarceration rate in the developed world, and the causes and ramifications of mass incarceration are the subject of intense study.  It is also increasingly widely recognized that the high rates of pretrial detention, often linked to the use of money bail, are unjust, expensive, and often counterproductive.  But, so far, the links between money bail, pretrial detention, and mass incarceration have been largely unexplored.  Our criminal justice system relies primarily on plea bargains to secure convictions at a relatively low cost.  And, as shown by recent empirical work, the bail system, which results in high pretrial detention rates for indigent defendants, plays a significant role in incentivizing quick pleas, and leads to more convictions and longer sentences.

Releasing more defendants pretrial would generate more pretrial motions, lengthier plea negotiations, and more trials, and would thus raise the cost — in the form of prosecutors, public defenders, and judges — of convictions and imprisonment.  In other words, if we release significantly more defendants pretrial, we will have to either spend more on criminal justice or convict fewer people and punish them less severely.  In addition to inducing quick, inexpensive guilty pleas from defendants unable to post bond, money bail also plays a more subtle role in sustaining high incarceration rates.  Money bail, by its very nature, discriminates based on wealth, and thus provides a built-in sorting mechanism — politically weak low-income defendants are pushed into the quick-plea process, while wealthier defendants are able to obtain release and the increased access to more robust process that it affords.  If politically better-represented wealthy and middle-class defendants were detained, and thus subjected to at least some of the same pressures to plead guilty as indigent defendants, there would, in all likelihood, be more demand for reform.

This Article explores the role of bail in mass incarceration, concluding that opponents of mass incarceration should pay increased attention to the pretrial process as a locus of reform.  Relatedly, it analyzes the likely impact of the bail–plea bargain link on future bail reform — which, of course, serves important interests beyond reducing the prison population, such as fairness and the avoidance of wrongful convictions.

Educating everyone about the value of educating prisoners

I have noticed in the last few days and weeks a number of commentaries making the case for ensuring prisoners have access to educational opportunities while behind bars and explaining why Pell grants should be one way to help do so.  I recommend all of these pieces in full, and here I will just be content with a round up of headlines and links:

• "Reinstate Pell Grants for Prisoners" by Emily Mooney and Shon Hopwood

• "Prisoner access to Pell Grants needs to be reinstated now. Here's why." by Arthur Rizer and John King Jr.

• "States – not just Congress – should unlock student financial aid for people in prison" by Bradley Custer

• "Restore Pell grant eligibility for incarcerated Hoosiers" by John Nally

In addition, this local article from Utah -- headlined "Even violent inmates get out. Here’s why Utah’s Sen. Mike Lee and others think they should have access to college courses in prison." -- highlights why at least one notable Senator is eager to get prisoners access to Pell grants.

Alabama enacts chemical castration mandate for sex offenders with child victims

As reported in this local article, Alabama "Gov. Kay Ivey [yesterday] signed into law a bill to require sex offenders whose victims are younger than 13 to undergo 'chemical castration treatment' as a condition of parole." Here are the details:

The treatment consists of taking a medication to suppress or block the production of testosterone.

The bill was sponsored by Rep. Steve Hurst, R-Munford, and passed on May 30, the next-to-last day of the legislative session. Hurst had sponsored similar bills for more than a decade and said his intention has always been to stop sexual abuse of children.

“I’m very serious,” Hurst said.  “Not only did I want it to pass, I want to follow it on through to the future where we can try to improve it.  One of the ultimate goals that I want to do is for us to track it and to make sure what medication works for what individuals.”

Hurst said he’s heard from many victims of sexual abuse supporting the effort.  “It’s amazing how many phone calls and how many emails I’ve gotten,” Hurst said.  “People not just in the state of Alabama but all over the world, things they went through.”

Other states have passed similar laws, including California and Florida in the 1990s.

The chemical castration law says sex offenders whose victims were younger than 13 will have to take “medroxyprogesterone acetate treatment or its chemical equivalent, that, among other things, reduces, inhibits, or blocks the production of testosterone, hormones, or other chemicals in a person’s body.”

The law requires the treatment to begin at least one month before a parolee is released.  The parolee is required to pay for the treatment unless a court determines he cannot. The Alabama Department of Public Health will administer the treatments.

Randall Marshall, executive director of the ALCU of Alabama, said the chemical castration treatment has been rarely used in other states that have authorized it through law. Marshall thinks it likely violates the ban on cruel and unusual punishment.  “It’s not clear that this actually has any effect and whether it’s even medically proven,” Marshall said. “When the state starts experimenting on people, I think it runs afoul of the Constitution.”

Hurst said children who are victims of child abuse are affected for the rest of their lives and said those who abuse children should face lifelong consequences. "What’s more inhumane than molesting a small, infant child?' Hurst asked.

Hurst said he has been haunted by the issue since he read an account from a foster care organization about an infant child being molested.  His legislation initially called for surgical castration.

Sen Cam Ward, R-Alabaster, who handled Hurst’s bill in the Senate, said the law will apply to a small number of offenders because many who molest children won’t be considered for parole.  He believes the treatments will work for those who are.  “I think it’s a good law,” Ward said.  “I think it’s a good deterrent.”

A search of this blog's archives reveals that chemical (or physical) castration of sex offenders is often discussed, but not often utilized, in both the United States and around the world.  But there historically has been little reliable evidence as to whether this novel punishment "works" to reduce recidivism.  It will be interesting to see if this new law actually ends up being applied and well studied in Alabama, though I suspect litigation and other administrative matters may keep it from being used with regularity.

Some of many prior related posts:

• Louisiana judges not using authority to order chemical castration for sex offenders
• Are there reliable data on the efficacy of chemical castration?
• "Argentina province OKs chemical castration for rapists"
• "Europeans Debate Castration of Sex Offenders"
• After high-profile child rapes, Koreans talk of physical castration and harsher sentencing for sex offenders 
• Garden State perspective on sex offender castration ... for no obvious reason 
• Huff Post commentary urging stiffer sentences and chemical castration for sex offenders

Supreme Court unanimously affirms ACCA sentence based on prior burglary conviction in Quarles

The Supreme Court this morning somewhat clarified the operation of its convoluted Armed Career Criminal Act jurisprudence through a unanimous opinion in Quarles v. US, No. 17-778 (S. Ct. June 10, 2019) (available here).  Here is how Justice Kavanaugh's opinion for the court get started:

Section 924(e) of Title 18, also known as the Armed Career Criminal Act, mandates a minimum 15-year prison sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a “serious drug offense” or “violent felony.”  Section 924(e) defines “violent felony” to include “burglary.” Under this Court’s 1990 decision in Taylor v. United States, 495 U. S. 575, the generic statutory term “burglary” means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599 (emphasis added).

The exceedingly narrow question in this case concerns remaining-in burglary.  The question is whether remaining in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.  For purposes of §924(e), we conclude that remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.  We affirm the judgment of the U. S. Court of Appeals for the Sixth Circuit.

The most interesting aspect of Quarles may be the short concurrence by Justice Thomas, which makes these points:

This case demonstrates the absurdity of applying the categorical approach to the enumerated-offenses clause. The categorical approach relies on a comparison of the crime of conviction and a judicially created ideal of burglary. But this ideal is starkly different from the reality of petitioner’s actual crime: Petitioner attempted to climb through an apartment window to attack his ex-girlfriend.

More importantly, there are strong reasons to suspect that the categorical approach described in Taylor v. United States, 495 U. S. 575 (1990), is not compelled by ACCA’s text but was rather a misguided attempt to avoid Sixth Amendment problems. See Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 21–23).  Under our precedent, any state burglary statute with a broader definition than the one adopted in Taylor is categorically excluded simply because other conduct might be swept in at the margins. It is far from obvious that this is the best reading of the statute. A jury could readily determine whether a particular conviction satisfied the federal definition of burglary or instead fell outside that definition. See Ovalles v. United States, 905 F. 3d 1231, 1258–1260 (CA11 2018) (W. Pryor, J., concurring). Moreover, allowing a jury to do so would end the unconstitutional judicial factfinding that occurs when applying the categorical approach. See, e.g., Dimaya, supra, at ___–___ (opinion of THOMAS, J.) (slip op., at 22– 23); Mathis v. United States, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring) (slip op., at 2); Descamps v. United States, 570 U. S. 254, 280 (2013)...

Of course, addressing this issue would not help petitioner: He has not preserved a Sixth Amendment challenge. Moreover, any reasonable jury reviewing the record here would have concluded that petitioner was convicted of burglary, so any error was harmless.

Because the categorical approach employed today is difficult to apply and can yield dramatically different sentences depending on where a burglary occurred, the Court should consider whether its approach is actually required in the first place for ACCA’s enumerated-offenses clause.  With these observations, I join the opinion of the Court.

SCOTUS grants cert in new capital case from Arizona concerning death sentence review procedures

The Supreme Court's new order list this morning includes new cert grants in five cases, one of which will interest sentencing fans.  Specifically, McKinney v. Arizona, No. 18-1109, involves questions of how a death sentence is to be reviewed.  SCOTUSblog coverage of the case has all the cert stage briefs linked (including a number of amici briefs), and here is the Questions Presented from the cert petition:

1. Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

2. Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

And here is how Arizona's brief in opposition describes the issues in the case:

1. Whether the Arizona Supreme Court erred in concluding that, because Petitioner’s convictions and sentences on two counts of first-degree murder became final several years before this Court decided Ring v. Arizona, 536 U.S. 584 (2002), that Ring did not apply to Petitioner.

2. Whether the Arizona Supreme Court erred in conducting an independent review of Petitioner’s death sentences.

Any Supreme Court decision about how Ring claims are to be sorted through on appeal should impact not only death sentence in Arizona, but also in Florida and perhaps a few other states. So McKinney could end up a pretty big deal.

Has death penalty reform "quietly broken through as a bipartisan issue"?

About four years ago, I asked in this 2015 post "Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?".  That post was prompted by a commentary noting various anti-death penalty movements in various red states.  This new Atlantic piece, headlined "GOP Lawmakers Are Quietly Turning Against the Death Penalty," is written in this same spirit and inspired by the repeal of the death penalty in New Hampshire.  Here are excerpts:

Though law-and-order conservatives have long championed the death penalty, New Hampshire is one of a growing number of states where Republicans ... are joining Democrats to push for a ban.  Last week, New Hampshire became the 21st state to outlaw capital punishment, one of 11 states this year — including GOP strongholds such as Kansas, Wyoming, Kentucky, and Missouri — where Republican lawmakers have sponsored bills to end the practice.  The movement is the result of several political factors, including Republican and Democratic concern over the country’s criminal-justice system.  But it’s also been motivated by lawmakers’ personal experiences....  Death-penalty reform has quietly broken through as a bipartisan issue — one that could portend a shaky future for capital punishment in the U.S.

Lawmakers in New Hampshire had tried and failed to outlaw the death penalty for two decades.  In 2018, they got close: The GOP-controlled state legislature passed a repeal bill, though it didn’t have enough votes to override Republican Governor Chris Sununu’s quick veto.  This year was different.  A repeal bill, co-sponsored by Welch, passed both chambers with just enough bipartisan support to narrowly best the governor.

Of course, many Republican state lawmakers — not to mention the president — still support the death penalty.  So does their base: A 2018 Pew Research Center poll found that three-quarters of Republican voters favor capital punishment, compared with just 35 percent of Democrats.  And the overwhelming majority of executions take place in red states: Of the 25 prisoners put to death in the United States last year, 13 were in Texas alone.  Democrats still continue to lead the charge to abolish the death penalty throughout the country, and starting in 2016, the national party included it in its official platform.  Nevertheless, like other states, New Hampshire wouldn’t have been successful without the support of dozens of Republicans in the legislature....

It wasn’t always this way.  Politicians from both parties have historically used the death penalty as a wedge issue to show that they were “tough on crime,” says Robert Dunham, the executive director of the nonpartisan Death Penalty Information Center.  A rise in the number of executions in the 1990s coincided with a push toward mass incarceration. While calls for reform escalated in the 2000s, as late as 2008, the then–presidential candidate Barack Obama voiced his disagreement with a Supreme Court ruling limiting the use of the death penalty in Louisiana.

One significant reason the tide has started to shift is the rise in conservative support for criminal-justice reform in the past few years.  Conservative groups such as Right on Crime and the Charles Koch Institute have advocated for reforms, including the First Step Act, a bipartisan bill President Donald Trump signed into law in late 2018 that changed some sentencing laws and targeted recidivism....

“As conservatives, we know the government’s flawed. We hate the government,” says Hannah Cox, the national manager of the advocacy group Conservatives Concerned About the Death Penalty. “Why would we give it power over life and death?”...

Overall, the opposition to the death penalty among Republicans represents a genuine, if slim, fault line in the party, one that could grow in parallel with concerns about the criminal-justice system as a whole. State lawmakers seem like the ones to watch: From 2000 to 2016, the number of GOP legislators sponsoring death-penalty-repeal bills increased by more than a factor of 10, according to Cox’s group. Repeal efforts have made it strikingly far in some conservative states. In February, Wyoming’s repeal bill passed the House and came within seven votes of passing the Senate. In Utah, a 2016 repeal effort passed the Senate but was just eight votes shy in the House. And in 2015, Nebraska lawmakers successfully overrode the governor’s veto to ban the death penalty, although it was later reinstated....

But for conservatives in New Hampshire who were key in getting death-penalty repeal past his veto, their concerns about capital punishment were too hard to ignore.  Bob Giuda, a Republican state senator, told me he also used to support the death penalty, but then slowly changed his mind.  “What do we accomplish by executing people?” he said.  “What statement do we make?” Giuda’s wife lives in a vegetative state, and he told me that he aspires to view all lives as equal, whether it’s his wife’s or Addison’s. “We don’t get to assign that value,” he said.

That type of deeply intimate answer may be why Republicans and Democrats in New Hampshire, and in other states, are joining together to scrap death-penalty laws, even as they remain deeply polarized on a whole set of other issues.  “I never hear, ‘Well, my caucus thinks’ or, ‘My party says,’” Hruska said. “It’s always a personal answer.”