Sentencing Law and Policy

Recent highlights from Marijuana Law, Policy and Reform

Since it has once again been a few weeks since I did a round-up of recent posts from Marijuana Law, Policy and Reform, here goes:

• Wisconsin police chief advocate marijuana legalization to fund treatment for harder drugs

• DC marijuana "legalization" ballot measure polling at 65%

• "Marijuana Money Is Still A Pot Of Trouble For Banks"

• Local Officials Have Their Marijuana Boots On The Ground

• "Are cities being racially discriminatory in banning legal marijuana?"

• In new ad campaign, "Marijuana Industry Battling Stoner Stereotypes"

• Why Florida is such an interesting marijuana reform state: "Snowbirds potential partakers of medical marijuana"

• Does nearly every NFL player really have a "certifiable need for medical marijuana"?

Despite the threat of another Plata, a number of states' prisons remain way over capacity

I expected that one consequence of the Supreme Court's affirmance of the prisoner release order for California in Plata would be that other states would work even harder than usual to keep their prison overcrowding in check so as not to risk Plata-like litigation in their states.  But, as this new Washington Post piece highlights, there are still a significant number of states that are still dealing with significant prison overcrowding problems (though Plata still seems on their minds).  Here are excerpts from a piece headlined "Prisons in these 17 states are over capacity":

The number of Americans in state and federal prisons has exploded over the last three decades, to the point that nearly one in every 200 people is behind bars. And though the rate of growth has slowed, and even declined over the last five years, the tough-on-crime policies and longer sentences that have sent prison rates skyward present a huge problem for states: Where do they put all those people?

That problem is especially acute in 17 states where the prison population is now higher than the capacity of the facilities designed to hold them. Those states, still recovering from a recession that decimated budgets, have to decide whether to build facilities with more beds, turn to private contractors, relax release policies — or simply stuff more prisoners into smaller spaces.

At the end of 2013, Illinois was housing 48,653 prisoners, according to data published by the Bureau of Justice Statistics. The state’s prison facilities are designed to hold just 32,075 prisoners, meaning the system is operating at 151 percent of capacity. North Dakota’s 1,571 prisoners live in space meant for 1,044 people, 150 percent of capacity. Nebraska, Ohio, Delaware, Colorado, Iowa and Hawaii are all holding a prison population equal to more than 110 percent of capacity.

What scares states the most is the prospect of federal courts intervening and ordering new action. California has been under court order since 2009 to reduce its prison population, which is far beyond capacity. The state has spent billions housing inmates in county jails or sending them to facilities run by private for-profit companies.

“No state actively wants the federal courts to come in and take over operation of their state government functions,” said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts.

The possibility of federal court intervention has spurred Alabama to begin reviewing its corrections procedures. A Justice Department investigation released in January found conditions at the state’s women’s prison violate the Constitution, and DOJ said it would look into conditions at other state prison facilities.

In June, Alabama Gov. Robert Bentley (R) launched the Justice Reinvestment Initiative to study the state’s criminal justice system and make recommendations for easing overcrowding. The state’s prison facilities are designed to house 13,318 inmates, though operationally the facilities can hold 26,145 people. The current prisoner population, 26,271 inmates, is 197 percent of the lowest possible capacity and 100.5 percent of the highest number.

Court intervention “has been a powerful motivator over the last couple of years for Alabama to tackle its situation, independent of all the in-state concerns with overcrowding,” Gelb said.

"The Most Senior Wall Street Official: Evaluating the State of Financial Crisis Prosecutions"

The title of this post is the title of this notable new article on SSRN authored by Todd Haugh. Here is the abstract:

This September marks six years since the collapse of Lehman Brothers and the height of the financial crisis.  Recently, a growing debate has emerged over the Justice Department’s failure to criminally prosecute Wall Street executives for their role in creating the crisis.  One side of that debate contends the government has failed to bring to justice individual wrongdoers — primarily the heads of banks operating in the mortgage-backed securities market — instead preferencing enforcement decisions that target corporations, resulting in punishments that are “little more than window-dressing.”  The other side argues that cases against individuals are precluded by the realities of the federal criminal justice system, and that “corporate headhunting” will only inhibit meaningful regulatory reform.

It is difficult, however, to evaluate these competing claims without proper context.  This Article explores the recent conviction and sentencing of Wall Street executive Kareem Serageldin as a means of providing that context.  Although Serageldin has been trumpeted as the “the most senior Wall Street official” to be sentenced for conduct committed during the financial crisis, and his conviction was framed as a victory in punishing those accountable for the financial collapse, a critical look at his case reveals he committed only a mundane white collar crime marginally related to the crisis.  This disconnect creates a unique lens through which to understand and evaluate the current state of — and debate surrounding — financial crisis prosecutions.  And it ultimately highlights the merits, and shortfalls, of each camp’s arguments.  The Article concludes by offering something largely absent from the current debate: specific proposals for how we might go about prosecuting individuals so as to prevent the next crisis.

BJS reports modest decline in violent and property crimes in 2013

As detailed in this official press release from the Justice Department’s Bureau of Justice Statistics, the results of the BJS crime victimization survey shows that the "overall violent crime rate declined slightly from 26.1 to 23.2 victimizations per 1,000 U.S. residents from 2012 to 2013."   Here are more of the statistical details:

The 2013 decrease in violent crime was largely the result of a slight decline in simple assault, which is violence that does not involve a weapon or serious injury. The rate of violence committed by strangers also declined in 2013. However, there was no statistically significant change in the rate (7.3 per 1,000 in 2013) of serious violence, defined as rape or sexual assault, robbery or aggravated assault.

In addition, there were no significant changes from 2012 to 2013 in the rates of firearm violence (1.3 per 1,000), violence resulting in injury to the victim (6.1), domestic violence (4.2) or intimate partner violence (2.8)....

In 2013, 1.2 percent of all U.S. residents age 12 or older (3 million persons) experienced at least one violent victimization, down from 1.4 percent in 2012. About 0.4 percent (1.1 million persons) experienced at least one serious violent victimization.

The overall property crime rate, which includes burglary, theft and motor vehicle theft, also decreased after two consecutive years of increases. From 2012 to 2013, the rate declined from 155.8 to 131.4 victimizations per 1,000 U.S. households. The rate of theft declined from 120.9 to 100.5 victimizations per 1,000 households, driving the decline in the overall rate. In 2013, 9 percent of all households (11.5 million households) experienced one or more property victimizations....

Violent victimization in urban areas declined from 32.4 per 1,000 in 2012 to 25.9 per 1,000 in 2013. The violent crime rate declined for males but did not change significantly for females from 2012 to 2013. From 2012 to 2013, the violent crime rate declined for blacks while remaining flat for whites and Hispanics.

The NCVS is the largest data collection on criminal victimization independent of crimes reported by law enforcement agencies to the FBI’s Uniform Crime Reporting Program (UCR) — the nation’s other key measure of the extent and nature of crime in the United States. During 2013, about 90,630 households and 160,040 persons age 12 or older were interviewed for the NCVS. Since the NCVS interviews victims of crime, homicide is not included in these nonfatal victimization estimates.

The full report written by BJS statisticians and titled simply "Criminal Victimization, 2013" is available at this link.

"The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options"

The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:

Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing.  The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.

That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways.  Drug enforcement could contribute to overall social instability in high-crime, high-enforcement communities, or at least to the perception of instability, in ways that may trigger more enforcement by police and prosecutors, even if crime rates are relatively low and falling.  Furthermore, while prior drug offenses do not appear to trigger formal recidivist statutes, they may alter prosecutorial charging decisions for later non-drug offenses, but prosecutorial charging behavior is currently impossible to measure with existing data.

Finally, even though the War on Drugs has played only a secondary role in prison growth, there are over 200,000 people in state prison every day on drug charges, and states appear eager to reduce the scope of drug-related incarcerations.  So I conclude by considering some of the options available to states.  I point out that the leading contenders -- decriminalization and sentence reduction -- will likely have little effect, since few offenders are in prison on marijuana charges (the only drug for which decriminalization is currently feasible), and all drug offenders serve relatively short sentences, well below the statutory maximums.  I then consider broader options, such as proposals that target the financial incentives prosecutors have to send offenders, including drug offenders, to prison.  I also touch on the implications of adopting broader definitions of "drug offenders," such as those who commit violent or property crimes either to support drug habits or in the course of selling drugs.

Members of Congress call for federal judge to resign after his domestic violence conviction

As reported in this local article, headlined "Sen. Jeff Sessions, Sen. Richard Shelby call for Mark Fuller's resignation," there is a growing consensus that a federal district judge ought to not longer be a judge after his conviction for assaulting his wife.  Here are the details:

On Wednesday, Sen. Jeff Sessions and Sen. Richard Shelby called for U.S. District Judge Mark Fuller's immediate resignation following his high-profile arrest for domestic violence in August.  "Judge Fuller's unacceptable personal conduct violates the trust that has been placed in him," Sessions said in a statement.  "He can no longer effectively serve in his position and should step down."

Sessions' sentiments echoed Shelby's earlier comments.  "The American people's trust in our judicial system depends on the character and integrity of those who have the distinct honor of sitting on the bench," Shelby said.  "I believe that Judge Mark Fuller has lost the confidence of his colleagues and the people of the state of Alabama."...

Fuller, who serves Alabama's federal middle district, was arrested Aug. 9 after his wife reported to police that her husband was drunk when he beat her while they were at an Atlanta hotel.  She had accused him of having an extra-marital affair with his law clerk. According to the police report, police noted "visible lacerations" to the woman's mouth and forehead.  Police said the woman reported Fuller had pulled her to the ground by her hair and kicked her.

On Sept. 5, Fuller accepted a plea deal that could expunge the arrest from his record if he completes a counseling program

On Tuesday, U.S. Rep Martha Roby said tolerating domestic abuse is condoning the crime, adding that she is closely monitoring the case. Rep. Terri Sewell also called for Fuller's resignation Tuesday. "No one committing such abusive acts should get a pass," Sewell said. "This is especially true for those charged with upholding and enforcing the law. Judge Fuller has violated the public trust and should resign."

Related prior posts:

• Alabama federal judge has cases reassigned after his arrest for wife-beating
• Will and should federal judge Mark Fuller get the same professional treatment as Ray Rice?

Long-incarcerated mass murderer given right to end his life in Belgium

A helpful reader alerted me to this fascinating article from overseas headlined "Serial murderer and rapist, 50, given right to die under controversial Belgian euthanasia laws." Here are excerpts:

A serial murderer and rapist has been given the right to end his life under controversial Belgian euthanasia laws, it has emerged.  Frank Van Den Bleeken, 50, has been behind bars for 30 years and has no hope of release because of his intensely violent urges.  Now judges in Brussels have agreed that Van Den Bleeken can commit suicide with the help of medics.

Jos Vander Velpen, the prisoner’s lawyer, said: ‘Over recent years, he has been seen by several doctors and psychologists and their conclusion is that he is suffering, and suffering unbearably.’

It will be the first time that a Belgian legal ruling about euthanasia which specifically applies to a serving prisoner has been handed down.  It was rubber stamped by the country’s Justice Ministry, which is ultimately responsible for everyone serving time in jail.

In all cases, patients must be conscious and have presented a ‘voluntary, considered and repeated’ request to die.  Mr Vander Velpen said his client met all such conditions, and for the past four years had felt he ‘couldn’t stand to live like this any longer and could no longer accept the pain’.

Van Den Bleeken will be transferred from his prison in Bruges to a hospital, where he will be euthanised.  Like every other country in the Union, Belgium does not have a death penalty, and technically doctors will only be helping Van Den Bleeken die.

Van Den Bleeken himself said in recent TV documentary: ‘If people commit a sexual crime, help them to deal with it.  Just locking them up helps no one — neither the individual, society or the victims.  ‘I am a human being, and regardless of what I’ve done, I remain a human being.  So, yes, give me euthanasia.’

Despite being a mainly Roman Catholic country, Belgium has always been at the forefront of liberalising euthanasia laws.  It made euthanasia legal in 2002, making it only the second country in the world to do so after Holland.  Last year alone, Belgium euthanised a record 1,807 people.

Van Den Bleeken has only left prison once in the past three decades — to attend his mother’s funeral.  A Belgian justice ministry spokesman said Van Den Bleeken would be euthanised ‘shortly’ at this own request.

Perhaps unsurprisingly, the decision to grant Van Den Bleeken a right to die, as evidenced by this companion commentary piece headlined "Why should our sister's killer be allowed to die with dignity when our suffering goes on?". Here is an excerpt of that piece providing some more context:

Van Den Bleeken is the first serving prisoner to be granted the right to die because of psychological torment. Another Belgian inmate was euthanised last year but he suffered from an incurable physical illness. But, as a direct result of the ruling, 15 other Belgian prisoners have already applied for euthanasia, even though the death penalty was abolished in 1996.

The case has renewed controversy about state-sanctioned suicide and raised serious ethical concerns. But it also calls into question the very nature of punishment and whether murderers and rapists should “suffer” for their heinous crimes or get treatment and rehabilitation.

Medics warn that euthanasia must not become an alternative to treatment while prison reformers insist it must not become a back-door return to the death penalty.

The country’s leading euthanasia advocate is also opposed to Van Den Bleeken’s death. Professor Wim Distelmans, chairman of the Belgian Board of Control for Euthanasia ... said: “It is wrong to allow him to end his life like this.” But Nikhil Roy, Director of Programmes at Penal Reform International, said: “While people are in prison it is the responsibility of the prison authorities to provide adequate care and opportunities for rehabilitation. This case highlights the lack of adequate therapy for prisoners and the fact that mental health issues are widespread in prisons around the world.”

Finding an age-based silver lining — or lead lining — in latest BJS prison data

Regular readers know I am very intrigued by the (often overlooked) social science research that suggests lead exposure levels better account for variations in violent crime rates than any other single variable.  Consequently, I am happy an eager to note this new data and analysis sent my way by researcher Rick Nevin who has been talking up the lead-exposure-violent-crime link for many years. 

This short new piece by Nevin, titled "Prisoners in 2013: The News Media Buries the Lead," responds to yesterday's report from the Bureau of Justice Statistics that the US prison population increased in 2013 for first time since 2009. Without vouching for the data, I am eager to highlight Nevin's interesting and encouraging age-based data discussion (with bolding in original and a recommendation to click through here to see charts and all the links):

The news media is reporting on U.S. incarceration data from the Bureau of Justice Statistics (BJS), but the media and BJS have ignored the important news: From 2012 to 2013, the male incarceration rate fell 21% for men ages 18-19, 6% for ages 20-24, and 5% for ages 25-29, but increased by 5% for ages 50-54, 7% for ages 55–59, and 8% for ages 60–64.

BJS Prisoner Series data show an ongoing incarceration rate decline for younger males and an increase for older males that has been ignored by the media for more than a decade.  From 2002 to 2013, the male incarceration rate fell by 61% for men ages 18-19, 34% for ages 20-24, and 25% for ages 25-29, but increased by 30% for ages 40-44.

BJS data for older age groups, reported since 2007, show the same trend through the age of 64. From 2007 to 2013, the male incarceration rate fell 37% for ages 18-19, 28% for ages 20-24, 14% for ages 25-29, and 7% for ages 30-44, as the male incarceration rate increased 22% for ages 45-49, 50% for ages 50–54, and 57% for ages 55–64.  In 2007, men ages 18-19 were twice as likely to be incarcerated as men ages 60-64.  In 2013, men ages 60-64 were almost 20% more likely to be incarcerated than men ages 18-19.

The BJS Prisoners in 2013 report ignores the detailed data on trends in male incarceration rates by age, and highlights an increase in the total prison population of about 4,300 from 2012 to 2013, but notes that the overall incarceration rate (per 100,000 U.S. residents) did fall from 480 in 2012 to 478 in 2013....

The actual BJS data show a long-term trend of falling incarceration rates for younger men that has continued from 2002 through 2013. That decline was the inevitable result of a shift in violent crime arrest rates by age since the 1990s. From 1994 through 2011, the violent crime arrest rate fell by 64% for ages 13-14, 61% t0 52% for ages 15-18, 44% to 39% for ages 19-21, 37% for ages 22-39, and 19% for ages 40-44, as the violent crime arrest rate increased by 6% for ages 45-49, and 13% for ages 50-54.

What is the causal force behind the shift in age-specific violent crime arrest rates and incarceration rates?  The Answer is Lead Poisoning.

Some recent related posts:

• Should we thank unleaded gas and the EPA for the great modern crime decline?
• Effective Washington Post commentary talks up great (and still puzzling) crime decline
• Do lead exposure realities continue to best explain modern crime-rate realities?
• Fascinating lead-crime-rate forecast that incarceration levels will decline significantly in coming years
• "Research on [lead]’s effects on the brain bolsters the hypothesis that childhood exposure is linked to criminal acts"
• More useful discussion of the (under-discussed) lead-crime-rate connections 

Seventh Circuit panel seemingly unmoved by feds appeal of probation sentence given to Beanie Babies billionaire

As detailed in this new Chicago Tribune article, "Prosecutors in Warner tax evasion case grilled by appeals court judges," federal prosecutors apparently did not get a warm reception at oral argument in the Seventh Circuit as they pressed their claims that a probation sentence given to a high-profile tax cheat was unreasonable. Here are the basics:

Federal prosecutors appealing the probation sentence of Beanie Babies founder Ty Warner faced a three-judge panel Wednesday to make the case for why the Westmont billionaire should get prison time for evading taxes.

Warner pleaded guilty last year to one count of tax evasion for failing to report more than $24 million in income and skirting $5.5 million in federal taxes on millions of dollars he hid for more than a decade at two Swiss banks.  Prosecutors had been pushing for a sentence of at least one year in prison, partly to deter others from committing the same crime. Sentencing guidelines had called for a prison sentence of up to 57 months.  His defense lawyers had argued that many tax evaders were allowed to join an amnesty program and that, even among those criminally charged and convicted, more than half who had been sentenced received probation.

Ilana Rovner, a U.S. appeals court judge for the seventh circuit, said Wednesday that she had a problem reconciling why the government was seeking to throw out Warner’s sentence when many tax evaders get probation or might not be prosecuted at all.  Also, the amount of tax he evaded was a fraction of what he has paid in taxes, she noted. Warner has already paid a civil penalty for not reporting the offshore accounts and restitution for what he owed in back taxes and interest....

Rovner also noted that prosecutors seem to be ignoring the “considerable discretion” of the district judge, Charles Kocoras, has in imposing a sentence.  He is a “veteran” judge who “obviously agonized” over the decision, she said.

Judge Michael Kanne noted that Warner’s guilty plea “saved the government some money” and that the appeals court “shouldn’t be the sentencing court.”

Judge Joel Flaum wondered why, if Warner’s conduct was so egregious, he was charged with only one count of tax evasion and why the government was seeking at minimum at least a year in prison.  Rovner chimed in, addressing Petersen: “You agreed to this.”

Judge Kanne noted that one count of tax evasion and a minimum prison sentence of a year “doesn’t sound like deterrence to me.”  Petersen responded that probation is a far more lenient sentence than the minimum of one year the government was seeking.

Anyone eager to hear the oral argument in full can access it via this mp3 link from the Seventh Circuit's website.  Notably, former US Solicitor General Paul Clement argued on behalf of the defendant (and I cannot help but wonder if he got some special Beanie Babies from the defendant in addition to the usual fees for his efforts).

Prior related posts:

• You be the federal judge: what sentence should the Beanie Babies billionaire get for tax evasion?
• Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire
• Feds call probation sentence given to Beanie Babies billionaire substantively unreasonable

Woman who bought guns for killer gets (way-above-guideline) eight-year federal prison sentence

As reported in this post last month, a high-profile federal gun case in upstate New York involved federal prosecutors seeking a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense.  This new local article, headlined "Woman tied to firefighter ambush sentenced to 8 years," details that the feds today were successful in securing a way-above-guideline federal gun sentence in the case:

The woman convicted of buying guns for a man that were used to kill two firefighters on Christmas Eve 2012 was sentenced to eight years in prison on federal charges Wednesday. The sentence, imposed by U.S. District Judge David Larimer, will run concurrent with a state sentence Dawn Nguyen is now serving of 16 months to four years.

On June 6, 2010, Nguyen bought the semiautomatic rifle and shotgun that William Spengler Jr. used when he fatally shot two volunteer firefighters Dec. 24, 2012. She claimed on a federal firearms transaction form that the guns were for her, when she was purchasing them for Spengler.

"I'm sure Miss Nguyen wishes she could take back that decision she made on that June day, but life is not like that," Larimer said in federal court Wednesday morning. Assistant U.S. Attorney Jennifer Noto in court Wednesday had argued that Nguyen's actions directly led to the Christmas Eve killings. "She should have foreseen the possibility of serious harm," said Noto....

Spengler had previously served 17 years in prison for fatally beating his grandmother with a hammer in 1980.

Larimer on Wednesday said he believed Nguyen knew of Spengler's dangerousness, and that she likely knew the facts behind Spengler's killing of his grandmother. Speaking of Spengler's past crime, Larimer said, "that should raise not one but hundreds of red flags that maybe this is not the kind of person who you want to be giving guns to."

Nguyen's lawyer Matthew Parrinello maintained that Nguyen did not know the specifics of Spengler's earlier crime. "This was a quirky, weird, crazy neighbor that she knew," said Parrinello. "But he was very nice, very kind and he did things for her family."

Dawn Nguyen on Wednesday faced the court room — which was packed with police officers, West Webster, N.Y., volunteer firefighters and her relatives — and told the crowd that she was sorry for her actions.

Related prior posts:

• Fascinating federal "gun control" criminal charges in wake of NY ambush murder-suicide
• Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer

"Sentencing and Interbranch Dialogue"

The title of this post is the title of this intriguing new paper by Eric Fish now available on SSRN. Here is the abstract:

American legislatures generally delegate primary control over sentencing policy to one of two actors — trial judges or a sentencing commission.  In choosing between these actors, a legislature decides between two values, individualization or uniformity.  If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices.  If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant.  This Article proposes a different architecture for American sentencing systems, one that relies on inter-branch dialogue to transcend this conflict between individualization and uniformity.  In a dialogue-based system, judges and the sentencing commission are co-authors of the sentencing guidelines.  They establish sentencing policies through dialogic feedback loops, wherein the first actor systematically influences the decisions of the second, which in turn systematically influences the decisions of the first.

Such dialogue has different institutional forms in different guidelines regimes.  In a presumptive guidelines regime (where the guidelines are presumptively binding but judges can depart from them in unusual cases), dialogue takes place through trial judges departing from the guidelines, appellate courts reviewing those departures, and the sentencing commission incorporating this departure case law into the guidelines themselves.  In an advisory guidelines regime (where the guidelines are non-binding), dialogue takes place through the sentencing commission trying to convince judges to follow the guidelines, tracking whether and why judges depart, and updating the guidelines to win more judges’ adherence.

The benefits of a dialogic sentencing system are twofold.  First, it minimizes the conflict between individualization and uniformity that has plagued modern sentencing law. Second, it evolves sentencing policy in a morally rational direction by using judges’ departure decisions to change the guidelines where they create illogical or unjust results. Whether a dialogic sentencing system is ultimately possible will depend on political factors, especially legislatures’ willingness to delegate sentencing authority and refrain from issuing restrictive mandates.  Assuming that it is politically feasible, the federal government and most of the states with guidelines could adopt dialogue-based systems without major changes to their current institutions.  Indeed, several jurisdictions have already incorporated elements of dialogue into their sentencing systems.

Two folks working on criminal justice issues get MacArthur "genius" Fellowships

The MacArthur Foundation announced its 2014 Fellowships (which are often called “genius grants”), and two recipients work on criminal justice issues.  Here is an overview of their work via the MacArthur announcement (with a link for more information):

Jennifer Eberhardt is a social psychologist investigating the subtle, complex, largely unconscious yet deeply ingrained ways that individuals racially code and categorize people, with a particular focus on associations between race and crime. Through collaborations with experts in criminology, law, and anthropology, as well as novel studies that engage law enforcement and jurors, Eberhardt is revealing new insights about the extent to which race imagery and judgments suffuse our culture and society.

Jonathan Rapping is a lawyer and legal defense advocate addressing failures of the U.S. criminal justice system to provide client-centered representation for indigent Americans. A large and growing number of those accused of felonies (by some estimates as high as 80 percent) cannot afford to pay for legal counsel. Though provided lawyers at no charge by the court system, often the accused are represented by public defenders burdened with too many cases and too few resources, resulting in over-incarceration or wrongful convictions that irreparably disrupt the lives of not only the indicted individuals but of their families and communities as well.

Texas poised to execute a second female murderer in one year

As reported in this local AP piece, headlined "Court Declines To Stop North Texas Woman’s Execution," it appears as though Texas is not facing any impediments to completing a notable execution on Wednesday.  Here are the basics:

When paramedics responding to a 911 call arrived at a North Texas apartment, they found on the bathroom floor a dead boy clad only in bandages and a disposable diaper. He appeared to be 3 to 5 years old. Further investigation determined Davontae Williams actually was 9.

His emaciated body weighed only 36 pounds, about half of what a boy his age should weigh. Evidence showed he had been restrained repeatedly at his wrists and ankles. A pediatrician later would testify that he had more than 250 distinct injuries, including burns from cigarettes or cigars and scars from ligatures, and that a lack of food made him stop growing.

On Wednesday, Lisa Ann Coleman, the live-in girlfriend of Davontae’s mother, is set to be executed for the child’s July 2004 death in Arlington. Coleman’s trial lawyers said his death was an accident, that the boy had mental health issues, was difficult to handle and she and Marcella Williams, his mother, didn’t know how to deal with him in a positive manner.

Coleman, 38, would be the ninth Texas inmate to receive a lethal injection this year. She would be the sixth woman put to death in the nation’s busiest capital punishment state since executions resumed in Texas in 1982 and the second this year.

Nationally, she would be only the 15th woman executed since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, nearly 1,400 men have been executed.

After a Tarrant County jury in 2006 convicted Coleman and gave her a death sentence, Marcella Williams, facing similar charges, took a plea deal and accepted a life prison term. Now 33, she not eligible for parole until 2044.

Attorneys for Coleman argued in appeals that prosecutors improperly defined Davontae’s restraints and confinement in a closet as kidnapping to find an aggravating factor so Coleman could be eligible for the death penalty. They also argued that jurors who convicted her of capital murder did so because her trial lawyers were deficient. “It has never been Lisa Coleman’s position that she should not be punished for what she did,” attorney John Stickels said in an appeal the 5th U.S. Circuit Court of Appeals, which was rejected Tuesday....

Photos of Davontae shown to jurors were “horrendous” and illustrated his suffering, trial defense attorney Fred Cummings acknowledged, but he believed a life sentence also would have been appropriate for Coleman. “It just doesn’t seem that the system was fairly applied here,” Cummings said last week.

Evidence showed child welfare officials repeatedly investigated Marcella Williams but would lose track of her because she kept moving to evade them, fearing they would take away her son and two younger daughters.

The Death Penalty Information Center has this effective webpage that assembles information about the handful of women who have been executed in the modern death penalty era.  That page reveals that it has been more than a decade since two female murderers were executed in the same calendar year.  It also shows that Texas will still lag behind one other state for the most executions of women in a single year: in 2001, Oklahoma completed executions of three women.

After a few modest yearly declines, state prison population ticks up in 2013 according to new BJS data

As reported in this New York Times piece, headlined "Number of Prisoners in U.S. Grew Slightly in 2013, Report Finds," a small streak of yearly declines in state prison populations came to a halt in 2013. Here are the details:

Breaking three consecutive years of decline, the number of people in state and federal prisons climbed slightly in 2013, according to a report released Tuesday, a sign that deeper changes in sentencing practices will be necessary if the country’s enormous prison population is to be significantly reduced.

The report by the Justice Department put the prison population last year at 1,574,700, an increase of 4,300 over the previous year, yet below its high of 1,615,487 in 2009. In what criminologists called an encouraging sign, the number of federal prisoners showed a modest drop for the first time in years.

But the federal decline was more than offset by a jump in the number of inmates at state prisons. The report, some experts said, suggested that policy changes adopted by many states, such as giving second chances to probationers and helping nonviolent drug offenders avoid prison, were limited in their reach....

Across the country, drug courts sending addicts to treatment programs rather than jail have proved valuable but are directed mainly at offenders who would not have served much prison time anyway, said Marc Mauer, executive director of the Sentencing Project, a private group in Washington. At the same time, Mr. Mauer said, more life sentences and other multidecade terms have been imposed than ever, offsetting modest gains in the treatment of low-level offenders.

“Just to halt the year-after-year increase in prisoners since the 1970s was an achievement,” said Richard Rosenfeld, a criminologist at the University of Missouri–St. Louis, and that shift came about because of changes in state policies and a drop in crime.

But experts say it will take more far-reaching and politically contentious measures to markedly reduce the country’s rate of incarceration, which is far above that in European nations and has imposed especially great burdens on African-Americans. Mandatory sentences and so-called truth-in-sentencing laws that limit parole have not only put more convicts in costly prison cells for longer stretches but have also reduced the discretion of officials to release them on parole....

The size of the federal prison population is closely tied to federal drug laws and penalties. A majority of the 215,866 offenders in federal prisons in 2013 were there on drug charges, often serving lengthy sentences under get-tough policies that have increasingly come under question. Recent changes in federal drug enforcement — a 2010 law to reduce disparities in sentences for crimes involving crack as opposed to powdered cocaine, and a directive from Attorney General Eric H. Holder Jr. calling for less stringent charges against nonviolent offenders — are too new to have had a large impact in 2013.

The full BJS report, titled excitingly "Prisoners in 2013," is available at this link. I need to grind over the data in the full report before commenting on what this notable new report tells us about the state and direction of modern mass incarceration.

Terrific collection of materials on-line as USSC's "Annual National Seminar Goes Paperless"

Though not nearly as historic or controversial as Bob Dylan going electric, I was still excited and intrigued to see a new item on the US Sentencing Commission's website announcing that this week's upcoming USSC Annual National Seminar "is going paperless." What this means, as the notice explains, is that all of the USSC's Seminar materials are now available online at this link. 

I recommend that everyone interested in federal sentencing data and developments take the time to click through and scroll down through the USSC's Seminar agenda. One can find lots of interesting articles, data runs and presentation materials that provide information and insights about modern federal sentencing that would be hard to find anywhere else. Kudos to the Commission for going paperless and for enabling folks like me who cannot make it to this year's event to still access a lot of the materials that are to be presented.

Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells

I am pleased to see that by LawProf Richard M. Re  now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here).  Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells.  I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.

Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:

In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note.  As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.”  The case might go to the Supreme Court on the Eighth Amendment question it raises.

Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency.  First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about.  A robust clemency tradition would bring those factors to light.  Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.

Prior related posts on Young case:

• "A few shotgun shells landed a man 15 years in federal prison"
• New York Times column spotlights extreme application of ACCA in US v. Young
• Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
• Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells

Congressional Budget Office reports Smarter Sentencing Act would save federal taxpayers $4.36 billion

As reported in this new piece from The Hill, which is headlined "CBO: Drug sentencing reform saves $4B," this is now an official congressional estimate of just how much federal taxpayer monies would be saved if the Smarter Sentencing Act were to become law. Here are the basics:

Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) announced that their bill to reform nonviolent drug sentencing would reduce prison costs by more than $4 billion. “Making smart reforms to our drug sentencing laws will save the taxpayers billions of dollars,” Lee said on Monday.

On Monday, the Congressional Budget Office (CBO) reported that Durbin and Lee’s bill would save the federal government $4.36 billion in prison costs by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses.

“Today’s CBO report proves that not only are mandatory minimum sentences for non-violent drug offenses often unfair, they are also fiscally irresponsible,” Durbin said. “By making the incremental, targeted changes that Senator Lee and I have proposed in our Smarter Sentencing Act, we can save taxpayers billions without jeopardizing public safety.”

This press release from Senator Mike Lee's office provides more context and details about potential SSA savings and the broad support the bill has already garnered:

CBO is the second government agency to conclude that the Durbin-Lee bill would produce billions of dollars in savings. The Department of Justice, which administers our federal prison system, has estimated that the bill would avoid prison costs of nearly $7.4 billion in 10 years and $24 billion in 20 years.

With federal prison populations skyrocketing and approximately half of the nation’s federal inmates serving sentences for drug offenses, the Smarter Sentencing Act would give federal judges more discretion in sentencing those convicted of non-violent drug offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, Major Cities Chiefs Association, the ACLU, Grover Norquist, International Union of Police Associations, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, more than 100 former prosecutors and judges, the NAACP, Association of Prosecuting Attorneys, the Sentencing Project, American Conservative Union, Police Executive Research Forum (PERF), the Council of Prison Locals, Ralph Reed, Open Society Policy Center, American Correctional Association, the American Bar Association, National Black Prosecutors Association, the National Association of Criminal Defense Lawyers, National Task Force to End Sexual and Domestic Violence, Families Against Mandatory Minimums, Texas Public Policy Foundation, and the Constitution Project.

"Unbundling Criminal Trial Rights"

The title of this post is the title of this intriguing short paper by John Rappaport that I just saw on SSRN. Here is the abstract:

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong.  Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure.

This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.”  The parties could then tailor court procedures by agreement.  Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury.  Or the parties could agree to submit a case to private arbitration.  Would such a world be better or worse than the one we have now?  This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.

Encouragingly, private prison company CCA turning focus to reducing recidivism

This recent Wall Street Journal article, headlined "Prison Firm CCA Seeks to Reduce Number of Repeat Offenders: Company Pushes to Reduce Costs Associated with Recidivism," reports on a private industry's latest encouraging response to the latest market realities in corrections. Here are the details:

The nation's largest private prison company is shifting its focus toward helping release more inmates and keep them out — a reaction, company officials say, to changing policies around the country on the severity of criminal punishment.

After three decades of surging prison populations, the number of people behind bars is starting to decline, albeit slowly. There were more than 2 million people locked up in federal and state prisons and jails in 2012, the last year for which the Justice Department has published data. That year saw prisons and jails release 27,500 more inmates than they took in, marking the fourth year of a declining prisoner population.

Yet repeat offenders remain a costly headwind. A Justice Department study of data from 2005 to 2010 in 30 states found that three out of four released prisoners will be rearrested within five years of their release. Getting a high-school equivalency degree while in prison, however, can greatly reduce the chances of being rearrested, studies show. A 2013 study by the Rand Corp. think tank concluded that spending $140,000 to $174,000 on education programs for a hypothetical group of 100 inmates would save as much as $1 million in re-incarceration costs over a three-year period.

Damon Hininger, chief executive of Nashville, Tenn.-based Corrections Corp. of America, said in an interview that government clients are increasingly concerned about the long-term costs of housing inmates and are pushing CCA and other private operators to save them money by reducing recidivism, the number of inmates who are released only to do a repeat turn in prison.

He plans to expand the company's prison rehabilitation programs, drug counseling and its prisoner re-entry work in cities around the country. It's a significant shift for CCA, which has built a profitable business from incarcerating people—nearly 70,000 inmates are currently housed in more than 60 facilities. The company is the fifth-largest correction system in the country, after only the federal government and the states of California, Florida and Texas.

"This is a watershed moment for our company and we hope it will be for our entire industry," Mr. Hininger said. "We are determined to prove that we can play a leadership role in reducing recidivism and that we have every incentive to do so. The interests of government, taxpayers, shareholders, and communities are aligned. We all just need to recognize that and commit to that."...

Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, has doubts about the company's new initiative. "It must be a challenge for CCA to implement programs that could reduce recidivism when that runs counter to the private prison model itself," she said. "We can only hope that CCA's interest in such programs indicate a shift away from its previous stance that 'reductions in crime rates' are a 'risk factor' for business and toward a completely new business model that does not rely on ever-growing mass incarceration."

Over the past two decades, government agencies have gravitated toward contracting with CCA or other private prison firms, often with a goal of saving money on the daily cost of housing inmates. In recent years, however, company officials are increasingly being asked by governments to cut down the cost of repeat offenders, Mr. Hininger said. Mr. Hininger compared the cost of recidivism on government budgets to the cost of long-term pension obligations and health-care coverage — issues that elected officials hadn't often thought of when drafting year-to-year budgets in the past but are now of increasing concern in more state capitals....

Jason Clark, a spokesman for the Texas Department of Criminal Justice, which contracts with CCA at some facilities, said the state began a push to expand rehabilitation and re-entry programs, which led to a drop in its recidivism rate from 25.3% to 22.6% over a three-year period. "Those are real numbers and real savings because less people are coming back into the prison system," Mr. Clark said. "We believe that continuing to invest in diversion and treatment initiatives is the best strategy to maintain a stable and successful criminal-justice system."

In a speech broadcast to CCA's roughly 15,000 employees, Mr. Hininger said the company plans to expand its postprison work around the country, noting that currently much re-entry work is done by small businesses and nonprofit groups that lack CCA's ability to scale up such work in larger facilities in many cities. He declined to say which cities. "What we've seen as we've looked around the U.S., it is a little fragmented, as smaller operators providing these solutions," Mr. Hininger said in the interview. "We see an opportunity to provide some consistency and expertise."

Mr. Hininger emphasized rehabilitation has always been part of CCA's work, but said that going forward it would be part of each employee's job description. He said that from the first day a prisoner arrives, that prisoner should be evaluated and steered toward effective rehabilitation programs.

Stories like this partially account for why I tend to be more hopeful than most other reform advocates concerning the role that private industry might play in improving the state of incarceration nation. Though I worry about how a profit motive can and will skew priorities and incentives in corrections, modern mass incarceration is the product of government agents playing politics much more so that the product of private actors pursuing profits. Consequently, I am eager to be open-minded about the potential for private players to improve the status quo, even while so many others claim that private prisons are sure to make bad matters worse.

Claiming his innocence, convicted Florida murderer requests judge to impose death penalty

I have often told my sentencing classes that, if I was unlucky enough to be wrongly convicted of capital murder, I would likely request to be sentenced to death in the hope of bringing more attention to my case and cause.  This local story from Florida, headlined "Defendant Dares Judge to Give Death Penalty," suggests that at least on Florida defendant has a similar philosophy. Here are the details:

A South Florida man convicted of murdering two people during a string of Dunkin’ Donuts robberies in 2008, dared a judge Friday to sentence him to death.  “Honestly and truly, I’m not asking you to spare me,” James Herard said in Broward County courtroom on Friday. “Go ahead and do what you gonna do.  I pretty much dare you to give me the death sentence because I’m innocent.”

Herard, 25, was convicted on 18 of 19 counts by the Fort Lauderdale jury in May. The same jury that convicted him has recommended the death penalty for Herard. Herard did not testify during the trial, so Friday was his last chance to speak in court before the judge hands down his sentence.

“I’m actually hoping you give me the death penalty because I know the Supreme Court won’t allow me to die for something I didn’t commit,” Herard said Friday.

Prosecutors say Herard didn’t pull the trigger in the 2008 murder of 39-year-old Eric Jean-Pierre. But, they say he, along with other members of a gang, were part of a “body count competition” and Herard pushed Tharod Bell to murder Jean-Pierre.

“They’re claiming I encouraged Tharod Bell to shoot someone, and how I did that, I don’t know,” Herard told the court....

Herard was previously convicted of the murder of 58-year-old Kiem Huynh in 2008.  He received sentences of life imprisonment for Huynh’s death.