Sentencing Law and Policy

Prez Obama selects Loretta Lynch to replace Eric Holder as US Attorney General

This brief press release from the White House Friday afternoon made official that it was President Obama's "intent to nominate U.S. Attorney Loretta Lynch to be the Attorney General of the United States."  This lengthy Politico article, headlined "Lame duck looms over Lynch confirmation," highlights some politics dynamics surrounding this decision, and closes with a substantive point I care most about:

President Barack Obama will nominate Loretta Lynch to be the new attorney general on Saturday, setting up what could prove the first major post-midterms Senate showdown.

Obama will call for Lynch to be confirmed as soon as possible, but White House aides say he’ll defer to Senate leaders on whether to press ahead with a vote during the coming lame duck session, or to wait until next year, when the Republicans will officially be in the majority.

Senior Democratic aides, meanwhile, said no final decision on timing has been made, but they are strongly leaning towards moving in the lame duck.  A confirmation vote could be used as leverage in other deals the White House and leaders are seeking in the lame duck.

Incoming Senate Majority Leader Mitch McConnell (R-Ky.), however, made clear that he’s completely opposed, issuing a statement Friday evening promising “fair consideration,” but that Lynch’s “nomination should be considered in the new Congress through regular order.”

The question is a significant one — there’s precedent in President George W. Bush pushing through Michael Mukasey’s nomination in a lame duck.  But at the outset of what’s supposed to be a new effort toward cooperation, Obama and Senate Democrats would be doing the exact opposite by moving confirming such a senior Cabinet official in between the midterms and the Republican takeover of the majority.

That could give Republicans an easy excuse to point to for blame on future gridlock.  But by waiting until the new GOP members are sworn in, Obama would risk not getting his choice — or any choice — confirmed for the job.

Lynch, a United States attorney from New York, has kept a low profile, but has quietly been in top consideration for weeks at the White House. Lynch would be the second woman in the post, and the second African American, following Holder.  That could make opposition from the Republican Senate more politically difficult, especially as she’s been previously confirmed by acclimation twice previously.

A career prosecutor who’s been confirmed twice by the Senate to one of the most prominent U.S. attorney positions, Lynch has experience with many of the major issues that a new attorney general would confront — including terrorism and financial crimes. She does not have a deep personal relationships with Obama or his close aides, or a resonance with the Democratic base eager to see the president pick fights more post-midterms.

Sen. Patrick Leahy (D-Vt.), the outgoing Judiciary Committee chairman, issued a statement praising Lynch’s selection, but made no firm commitment on timing.  “I have spoken with the President about the need to confirm our next attorney general in a reasonable time period, and I look forward to beginning that process,” Leahy said.

Sen. Chuck Grassley (R-Iowa), who’ll head the Judiciary Committee when Republicans take over, said he was generally supportive of Lynch’s nomination but said he was looking forward to learning more about her.  “As we move forward with the confirmation process, I have every confidence that Ms. Lynch will receive a very fair, but thorough, vetting by the Judiciary Committee. U.S. Attorneys are rarely elevated directly to this position, so I look forward to learning more about her, how she will interact with Congress, and how she proposes to lead the department,” Grassley said.  “I’m hopeful that her tenure, if confirmed, will restore confidence in the Attorney General as a politically independent voice for the American people.”...

And timing isn’t the only problem Lynch would face. Sen. Jeff Sessions’ office sent out a reminder to reporters Friday of recent comments by Sens. Sessions, McConnell, Ted Cruz, Mike Lee and Rand Paul all saying that any nominee for attorney general would have to disavow Obama’s plan to provide amnesty to certain illegal immigrants through executive action. Obama has said repeatedly, including at his post-election press conference Wednesday, that he will go forward with the immigration reform executive actions before the year, unless Congress passes an immigration reform bill....

Obama, White House aides have said, sees the next attorney general as being a key figure in helping him complete several issues he sees as fundamental to the legal legacy he wants, including sentencing reform and figuring out a solution to closing the detention center at Guantanamo Bay.

I am very pleased and excited by this news for many reasons, particularly because I think the selection of Lynch at least indirectly suggests that Prez Obama is more interested in moving forward with sentencing reform than in picking fights with the new Congress. Among the various names discussed as possible nominees, I view Lynch as probably the least controversial choice as well as the person most likely to be able, practically and politically, to keep up the sentencing reform momentum that outgoing AG Eric Holder made a signature concern of his final years in his position.

"We should stop putting women in jail. For anything."

The title of this post is the headline of this provocative commentary by Patricia O'Brien available via the Washington Post.  Here are excerpts:

It sounds like a radical idea: Stop incarcerating women, and close down women’s prisons. But in Britain, there is a growing movement, sponsored by a peer in the House of Lords, to do just that.

The argument is actually quite straightforward:  There are far fewer women in prison than men to start with — women make up just 7 percent of the prison population. This means that these women are disproportionately affected by a system designed for men.

But could women’s prisons actually be eliminated in the United States, where the rate of women’s incarceration has risen by 646 percent in the past 30 years? ...  Essentially, the case for closing women’s prisons is the same as the case for imprisoning fewer men. It is the case against the prison industrial complex and for community-based treatment where it works better than incarceration.  But there is evidence that prison harms women more than men, so why not start there?

Any examination of the women who are in U.S. prisons reveals that the majority are nonviolent offenders with poor education, little employment experience and multiple histories of abuse from childhood through adulthood.  Women are also more likely than men to have children who rely on them for support — 147,000 American children have mothers in prison....

What purpose is served by subjecting the most disempowered, abused and nonviolent women to the perpetually negative environment of prisons?  Efforts to make prison “work” for women have only perpetuated the growth of the prison industrial complex. These putative reforms have helped some individuals, and possibly brought the nature of mass warehousing of poor, black and brown bodies more into focus, but the number of incarcerated people still continues to rise.

So what is the alternative to jailing women at the rate we do?  In Britain, advocates propose community sentences for nonviolent offenders and housing violent offenders in small custodial centers near their families.  There is evidence that these approaches can work in the United States.  Opportunities to test alternatives to prison are increasing across the states, and some have demonstrated beneficial results for the women who participated....

Oklahoma is currently ranked No. 1 for female incarceration per capita in the country. Nearly 80 percent of Oklahoma’s incarcerated women are nonviolent offenders, their presence in prison largely attributed to drug abuse, distribution of controlled substances, prostitution and property crimes.

A program that began five years ago, Women in Recovery, provides an alternative to prison for women who are sentenced for felony crimes linked to alcohol or drug addiction.  The program includes comprehensive treatment and services such as employment services, housing assistance and family reunification.  Women with small children are given the highest priority for admission to the program.  Women who complete the program, averaging about 18 months, have a high degree of success after release.  The program coordinator has told me that 68 percent of the women who completed the program had no further involvement with the criminal justice system....

The systemic production of mass incarceration cannot be solved simply by assisting troubled and troubling individual women.  Another step to abolition requires taking the discussion beyond the individuals and communities most directly harmed, controlled and erased by the prison industrial complex to the public sphere that has passively accepted it.  Put simply, we need to stop seeing prisons as an inevitable part of life....

The case for closing women’s prisons is built on the experiences of formerly incarcerated women and activists who recognize that women who are mothers and community builders can find their way forward when they respected and supported.  It is possible to imagine a future without women’s prisons; whether it’s achievable will require a bigger shift in thinking.

Guest SCOTUS argument analysis: "Fish are apparently funny . . . and other quick thoughts on Yates"

Professor Todd Haugh was kind enough to send along for posting here this analysis of one of the notable federal criminal justice cases just heard by the Supreme Court:

The Supreme Court heard argument this week in Yates v. United States, the oddball case requiring the Court to determine whether the “anti-shredding” provision of the Sarbanes-Oxley Act applies to a fisherman who threw a crate of undersized grouper overboard after he was ordered not to by a federal agent.  The precise issue was whether the fisherman, John Yates, had adequate notice that 18 U.S.C. § 1519’s “tangible object” provision covered fish along with financial records, which were the focus of SOX following the Enron and Arthur Anderson document-shredding scandal. Although there have been a number of comprehensive posts about the statutory interpretation aspects of the case, see here and here, I wanted to offer my quick reaction to the argument, which I attended.

Fish are funny.  First of all, although this may be trivial for hardcore criminal law and sentencing buffs, this was one of the most jovial arguments I have seen, riotous even.  The argument was interrupted numerous times by the gallery’s laughter — 15 times according to the transcript — which was prompted by both the litigants and the Justices.  And this wasn’t all the Scalia show.  Justices Kagan, Sotomayor, and Breyer all offered quips that gave the audience quite a show.

But overcriminalization is not.  Part of the reason everyone was in a joking mood was the inherent absurdity of the underlying prosecution.  Although Roman Martinez, the Assistant SG, tried to convey that Yates had not just tossed away a few fish, but had directly disobeyed a federal agent and then enlisted his crew to lie about it, the Justices weren’t buying it.  At one point, Chief Justice Roberts interrupted Martinez, saying, “You make him [Yates] sound like a mob boss or something.”  (Again, to great laughter.)  In between the laughs, however, the Court conveyed a serious concern over the sweep of § 1519 and the government’s exercise of discretion.  Justices Breyer and Alito, in particular, posed squirm-inducing hypotheticals to Martinez demonstrating that the only thing stopping this provision from criminalizing obviously trivial conduct is the U.S. Attorney’s Office. Martinez’s admission, solicited from Justice Ginsburg, that the U.S. Attorney’s Manual instructs prosecutors to bring the most severe charge available did not help the government’s cause.  Justice Scalia, who had previously asked what kind of “mad prosecutor” brought the case and questioned whether it was the “same guy . . . that brought the prosecution in Bond last term,” said that if the government’s policy was to always prosecute so severely, the Court was “going to be much more careful about how extensive statutes are” and how much “coverage” to give them.

And neither is severe sentencing.  Much of this was driven by the sentencing risk Yates faced — twenty years for destroying evidence of a civil infraction.  A number of Justices questioned why Congress needed to enact another obstruction provision with a 20-year max when there were others available.  The government tried to back its way out of the inquiry by explaining that the prosecutor had recommended a Guideline sentence of 21 to 27 months and Yates only got 30 days in jail, but Chief Justice Roberts highlighted that the issue was not the actual sentence received but the “extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.”  He specifically mentioned prosecutors using the risk of severe sentencing to force pleas, and Justice Scalia’s questions suggests he was troubled by the same thing.  

Overcriminalization exacts real hams.  I’m by no means a statutory interpretation wonk, so my interest in Yates is focused on how the case tees up the issue of overcriminalization (particularly in the white collar context).  Overcriminalization exacts harms by making prosecutors lawmakers and adjudicators of the criminal code, which invariably leads to arbitrary enforcement.  This is what so many of the Justices were reacting to during the argument.  But overcriminalization’s real harm, which flows from that arbitrary enforcement, is that it lessens the legitimacy of the criminal law.  The absurdity of the Yates prosecution, while making for a lively and fun argument, demonstrated the point. It’s fine to laugh, but when that laughter is directed at our criminal justice system, that’s a serious matter. The question is whether the Court will take this opportunity to provide a serious response.

Predicting a winner. Using the method of tallying questions to the litigants during argument as a way to predict the outcome — the party receiving the most questions from the Justices during oral argument is more likely to lose (see here for a discussion of the methodology) — I’ll go ahead and predict a winner.  According to my notes, Yates’ attorney received approximately 29 questions (I say approximately because it’s hard to know how to count Justice Breyer’s three-part hypotheticals) to the government’s 36, which suggests Yates will prevail.  The tone of the questions certainly point to the same conclusion, and it’s consistent with how other’s saw the argument — see here.

ACLU to devote $50 million to political efforts to attack mass incerceration

As reported in this New York Times article, headlined "A.C.L.U. in $50 Million Push to Reduce Jail Sentences," a leading advocacy group big new pot of money to be spent on attacking the problem of mass incarceration. Here are the details:

With a $50 million foundation grant, the largest in its history, the American Civil Liberties Union plans to mount an eight-year political campaign across the country to make a change of criminal justice policies a key issue in local, state and national elections. The goal of the campaign, financed by George Soros’s Open Society Foundations, is to slash an incarceration rate that has tripled since 1980. There are currently some 2.2 million prisoners in the United States.

The campaign aims to translate into state and federal policy a growing belief among many scholars, as well as of a coalition of liberal, conservative and libertarian political leaders, that the tough-on-crime policies of recent decades have become costly and counterproductive. In that view, widespread drug arrests and severe mandatory sentences are doing more to damage poor communities, especially African-American ones, than to prevent crime, and building ever more prisons that mostly turn out repeat offenders is a bad investment.

The campaign is likely to face strong opposition from some law enforcement officials, prosecutor groups and conservative experts who argue that tough sentencing policies have played an important role in driving down crime rates. The Republican electoral victories this week could also stiffen resistance to sweeping change.

The grant is going to the political arm of the A.C.L.U., which has far more leeway to lobby for laws, run ads on television and finance political action committees to promote candidates than the group’s larger, traditional branch, which relies more on litigation. As a result, the money is not tax-deductible.

While the A.C.L.U. has often been associated with liberal causes like ending the death penalty and promoting same-sex marriage, Anthony D. Romero, the group’s executive director, said the organization was building ties with conservative leaders promoting alternatives to incarceration and would not hesitate to aid Republican candidates who support needed steps. “I think criminal justice reform is one of the few issues where you can break through the partisan gridlock,” Mr. Romero said, adding that the group would seek out Republican lobbying firms to help reach legislators.

In the latest example of converging views, conservatives including Newt Gingrich and B. Wayne Hughes Jr., a Christian philanthropist, joined the Soros-led foundation and the A.C.L.U. in support of Proposition 47, a California ballot measure to redefine many lower-level felonies, including possession for personal use of hard drugs, as misdemeanors. The change, which passed by a wide margin on Tuesday, is expected to keep tens of thousands of offenders out of prison and save the state hundreds of millions of dollars each year.

The Koch brothers, major funders of conservative causes and candidates, have joined in. Koch Industries recently gave a grant “of significant six figures” to the National Association of Criminal Defense Lawyers to support the defense of indigents, said Mark Holden, senior vice president and general counsel at Koch Industries. “Whether the human cost or the societal cost, what we’re doing in the criminal justice system isn’t working,” Mr. Holden said. “We’re finding common ground with people with different political affiliations,” he said, praising the advocacy work of the A.C.L.U. in this field.

The A.C.L.U. campaign will be directed by Alison Holcomb, who led the effort in Washington State to legalize marijuana. The group plans to use ads to insert issues like drug policy, mandatory sentences and prison re-entry into early primary states in the presidential elections, such as Iowa and New Hampshire, and then in key battlegrounds like Pennsylvania and Florida, Mr. Romero said.

It will also develop a state-by-state database describing who is in prison for what crimes and then target local politicians and prosecutors who promote what Mr. Romero called “overincarceration.” Mr. Romero said the goal of the campaign was to reduce incarceration by 50 percent in eight years.... Todd R. Clear, a criminologist and the provost of Rutgers University-Newark, said he agreed that the time was right for a major shift in justice policies.... But he cautioned that to achieve a decline anywhere near as steep as that proposed by the A.C.L.U., far more politically contentious changes would be necessary. “We’ll have to make sentencing reforms for violent crime, too,” he said, including major changes in drug laws and the multidecade sentences often imposed on violent or repeat offenders.

After state's capital repeal, Maryland AG argues the state cannot execute those already on death row

As reported in this Baltimore Sun piece, headlined "Gansler argues state must vacate sentences of death row inmates," Maryland's Attorney General has concluded that it would not be proper to see execution of those on state's death row after the legislature repealed capital punishment. Here are the details:  

More than a year after the repeal of capital punishment in Maryland, Attorney General Douglas F. Gansler says the state has no choice but to change the sentences of its remaining death row inmates.

Gansler has filed a legal brief in support of an appeal by Jody Lee Miles, who is asking to be resentenced for the 1997 murder of an Eastern Shore musical theater director. Miles' lawyers — and Gansler — argue the state no longer has the authority to execute the four men already on death row because lawmakers abolished capital punishment in 2013. With repeal, they argue, legislators took away the state's power to issue the regulations necessary to put someone to death.

Instead, Miles should be sentenced to life without the possibility of parole, Gansler argued in a brief filed with the Court of Special Appeals. "Whether or not you agree with the death penalty, the recent repeal of capital punishment in Maryland nevertheless demands that we pursue a prison sentence that ensures Jody Lee Miles dies behind bars, where he belongs," Gansler said in a statement Thursday.

Speaking at a news conference, Gansler called capital punishment in Maryland "illegal and factually impossible." Though the brief relates only to Miles, Gansler acknowledged that his position has implications for the other death row inmates.

His position drew criticism from the family of Miles' victim, Edward Joseph Atkinson, and from the Wicomico County state's attorney, whose office prosecuted the case.

Atkinson's mother, Dottie Atkinson, said Miles should be put to death. "It's been appeal after appeal. We get some hope each time, and all these appeals have been in our favor, and all of a sudden we get this news. We've been let down," she told reporters on the Eastern Shore, according to The Daily Times. "It's an impact people shouldn't have to go through."

Wicomico County State's Attorney Matt Maciarello also denounced the decision. But he added that, if the state's position is set, Gov. Martin O'Malley should move to commute Miles' sentence and spare the family the court hearings and drawn-out process associated with appeals. "If the attorney general is committed to this approach, let's give this family some finality," Maciarello said. "It's cruel to put this family through more suffering."

Gansler noted that O'Malley, who supported repeal, could commute the death sentences to life without the possibility of parole. The governor has at least one petition — from inmate Heath William Burch — on his desk that he has yet to take action on, Burch's attorney said.

Through a spokeswoman, O'Malley declined to comment on Gansler's opinion, saying only that the attorney general "has a constitutional obligation to determine how the law applies." Regarding the governor's ability to commute sentences, the spokeswoman said O'Malley "continues to consider each case and will address the issue when a decision has been made."

Gov.-elect Larry Hogan and incoming attorney general Brian Frosh did not respond to requests for comment.

Gansler — who opposed the repeal legislation but never sought the death penalty as the top prosecutor in Montgomery County — said his office was obligated to weigh in on Miles' case before the Court of Special Appeals. He noted that after a court threw out Maryland's lethal injection procedure as unconstitutional in 2006, the state did not adopt new regulations. When his staff researched the issue, the conclusion was that the "uncertain enforceability" of the death penalty in Maryland threatened due process, he said....

His opinion contrasts with that of a Queen Anne's County judge, who rejected Miles' argument last year. In that case, Judge Thomas G. Ross found the lack of rules for executions "troubling" but said even after the repeal went into effect the Division of Correction retained the authority to develop new rules....

Miles' attorneys commended Gansler's move but said they believe he should be eligible for release at some point, not sentenced to life without parole. Miles has expressed "extreme remorse" for the killing, had a "devastating childhood history" and has been a model inmate while behind bars, the attorneys say. Gansler said life without parole is the appropriate sentence because the jury had a choice between that and the death penalty.

How might election results (and subsequent sparring) impact Prez Obama's clemency plans?

In this prior post, I wondered aloud "How might election results impact replacing Eric Holder as Attorney General?."  Since then, I have turned to thinking about, as the title of this post highlights, whether and how the Republican electorial success this election cycle might impact the President's thinking and plans about finally making some real use of his clemency powers.

As regular readers know, I consider President Obama's clemency record to date to be not merely disappointing, but truly disgraceful.  That said, earlier this year, Deputy AG Cole and others talked up a new DOJ effort to identify worthy clemency candidates so that the President might start to do better.  From the get-go, I have been concerned that all the talk of new clemency developments might prove to be just another example of the Obama Administration being real good at "talking the talk" and not nearly so good at really "walking the walk."  Indeed, until President Obama starts seriously and consistently using his clemency power, I remain deeply fearful that the so-called Clemency Project 2014 could prove to be much ado about nothing (or about very little relief for very few).

With these realities as backdrop, I have no sense at all whether the consequential political developments of the last few days will have little, some or much impact on whatever Prez Obama had in mind with respect to clemency.  Does anyone else have any insights or even wild speculations on this front?

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

• Justice Department formally announces its clemency initiative plans and guidelines
• How many of current federal prisoners satisfy all six of the new DOJ clemency guidelines?
• "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
• Is Prez Obama likely to grant clemency to "hundreds, perhaps thousands" of imprisoned drug offenders?
• Curious DOJ clemency campaign continues through meeting with defense groups
• New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
• ProPublica reveals more ugliness in federal clemency process
• ProPublica urges next AG to "Fix Presidential Pardons"
• "Presidential Pardons Heavily Favor Whites"
• Investigation reveals (shockingly?!?!) that politicians and politics impact federal pardons
• DOJ audit of federal clemency process with sound and fury signifying nothing
• Updated numbers on President Obama's disgraceful clemency record
• "Obama's Mercy Dearth"
• Los Angeles Times calls out our "no-pardon president"

Impact of California's Prop 47 already being felt ... by defense attorneys and police

This local article from California, headlined "Scramble to implement Prop 47 begins," spotlight the impact already being felt by the passage of the biggest criminal justice reform initiative of Election 2014.  Here are the (already remarkable) basics:

Just hours after the last ballot returns were counted, the phone lines of defense attorneys across the state began to light up Wednesday morning with calls from inmates.

With the passage of Proposition 47, simple drug possession and property crimes valued under $950 are now misdemeanors, effective immediately. Punishment means, at the worst, up to a year in jail, no longer prison. It also means up to 10,000 inmates serving time for those crimes can begin to apply for shortened sentences, a process many were eager to get started.

“This morning at 8 a.m., we took 10 attorneys and put them on the phones,” said Randy Mize, a chief deputy at the Public Defender’s Office. “They were taking 200 calls an hour from inmates in county jail. These are people asking us to file petitions on their behalf.”

The scramble to put the new law into practice was starting to touch all corners of the criminal justice system Wednesday, from the City Attorney’s Office, which will have to handle 3,000 extra cases a year, to police officers who will have new protocols to follow for certain arrests.

At Juvenile Hall Wednesday morning, six kids were released because they had felony charges that are now classified as misdemeanors under Proposition 47, and legally minors can’t be detained longer than an adult would, authorities said. “I think the roll out today started fairly smoothly,” Mize said. He attributed much of that to the fact that criminal justice leaders from around the county — including prosecutors, public defenders, the sheriff and probation officers — have been meeting for the past month to prepare for this day....

The law is intended to ease prison overcrowding, and put most of the estimated $200 million saved in prison costs annually into drug and mental health treatment programs to staunch recidivism. The majority of law enforcement officials around the state and the county are skeptical it will have the desired effect, and fear less time behind bars will only contribute to the revolving door of the criminal justice system. But, officials say, they will do their best to make it work. “It’s still a work in progress,” Sheriff Bill Gore said Wednesday. “Our primary concern is clearly the public’s safety.”...

Law enforcement officers were reminded of the new law in police lineups around the county. As of Wednesday, six crimes that used to be felonies are now misdemeanors: drug possession for personal use, as well as five property crimes valued below $950, theft, writing bad checks, forgery, shoplifting and receiving stolen property.

One of the biggest differences when arresting someone on a misdemeanor, rather than a felony, is that the crime must have occurred in the officer’s presence, or be witnessed by a citizen willing to sign an affidavit saying so. Several training memos have been distributed in the past few weeks to prepare deputies on such arrests, Gore said....

The Public Defender’s Office has already identified about 200 state prisoners and 1,800 other offenders either in jail or under the supervision of probation who might be eligible to be resentenced under Proposition 47. The first set of petitions are expected to be filed within the next day or so, with priority given to those in custody. Once the application is filed in court, the District Attorney’s Office will review it to make sure the person is eligible, then a judge will OK it and hand down a new, shorter sentence. The process could be as quick as a few weeks for the first group of offenders, said Mize, with public defender’s office.

“There will be a few cases that the DA thinks should be excluded, and we don’t, and those will be litigated,” Mize said. There may also be a few offenders that prosecutors think are too dangerous to be released, and those cases will be argued. Inmates who can’t be resentenced are those who have prior convictions such as murder, attempted murder and violent sex crimes.

The public defender’s office has also identified nearly 200,000 other people who have been convicted since 1990 — that’s as far back as its database goes — of the crimes reclassified under Proposition 47. They can now apply to have their records show misdemeanor rather than felony convictions. Statewide, that could apply to millions of people. Said Mize, “It will certainly take a lot more work in the short term.”

Prior related posts on California's Prop 47:

• Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
• Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
• Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
• Reviewing California's debate over lowering sentences through Prop 47
• Notable pitch for California Prop 47 based in mental health concerns
• New York Times editorial makes the case for California's Prop 47
• California sentencing reform initiative Prop 47 wins big getting almost 60% support

New California report finds many challenges in sex offender monitoring

As reported in this local piece from California, "two-thirds of parole agents who monitor sex offenders juggle caseloads that exceed department standards, a state corrections review reported Wednesday in response to an Orange County murder case." Here is more about the report's findings:

Agents are supposed to supervise between 20 and 40 parolees, depending on how many are high-risk offenders. But more often than not, the state Office of the Inspector General found, agents are overburdened. At 14 of the state’s 37 units responsible for supervising paroled sex offenders, all agents had bigger caseloads than department policies allow. The inspector general surveyed the units’ caseloads in August.

The report also criticized the effectiveness of GPS monitoring and housing restrictions enacted through Jessica’s Law, a 2006 ballot measure. The inspector general tied the restrictions to a spike in homelessness and strained resources....

The state Sex Offender Management Board recommended four years ago that agents supervise no more than 20 paroled sex offenders. But the inspector general said corrections officials haven’t adopted the lower threshold.

The inspector general report was requested by state Sen. Darrell Steinberg after the April arrests of Steven Gordon and Franc Cano, two transient sex offenders registered to live in Anaheim. Steinberg was head of the Senate at the time and chairman of its rules committee....

Steinberg didn’t request that the inspector general probe how Gordon and Cano were supervised by parole agents. Previously, the office did just that after the high-profile convictions of sex offenders Phillip Garrido and John Gardner. This time, Steinberg focused on broader questions about the impact of GPS monitoring and housing restrictions.

The Department of Corrections and Rehabilitation estimates that it spent about $7.9 million to monitor more than 6,000 paroled sex offenders with GPS devices in the last fiscal year, a decline from $12.4 million four years earlier.

The detailed 80+-page report from the California Office of Inspector General, which is titled "Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions," is available at this link.

Based on questions asked at SCOTUS oral argument, wins predicted for federal defendants in Johnson and Yates

As discussed in prior posts here and here, yestderay the Supreme Court heard oral argumentsin two notable federal criminal justices cases,  Yates v. United States and Johnson v. United States.  I am hoping soon to find the time to read the full arguments transcripts in both cases (which are available here and here).  Fortunately, thanks to my old pal Professor Ed Lee and this post at ISCOTUSnow, I do not have to read the transcripts in order to have an informed guess as to who will prevail.  Here is why:

I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose....

Yates v. United States asks whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519—which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation—where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

This is a close call. The Court was very active in questioning both sides. By my count, the Petitioner (Yates) received 49 questions and the Respondent (Solicitor General) 54 questions, which militates slightly in favor of the Petitioner.

But, if you break down the questions asked by Justice, the picture gets more complicated. Four Justices (Kennedy, Ginsburg, Sotomayor, and Kagan) asked the Respondent fewer questions, while only three Justices (Roberts, Scalia, and Breyer) asked the Petitioner fewer questions. Justice Alito asked both sides an equal number of questions (3). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. The total number of questions slightly favors the Petitioner, while the questions per Justice slightly favors the Respondent. If I had to choose, I would give a slight nod to the Respondent (Solicitor General) based on the higher number of Justices (4) who asked the Respondent fewer questions.

The second case, Johnson v. United States, asks whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

This case is easier to predict, even though the total question count per side was closer. The Court asked almost the same number of questions to each side: 36 to the Petitioner (Johnson) and 37 to the Respondent (Solicitor General). The questions asked by each Justice tells a different picture. Four Justices (Roberts, Ginsberg, Breyer, and Kagan) asked the Petitioner fewer questions. Only two Justices (Scalia and Alito) asked the Respondent fewer questions. Justice Sotomayor asked the same number of questions (5) to each side, while Justices Kennedy and Thomas asked no questions. Another noteworthy point: Justice Alito, in fact, asked 17 questions to the Petitioner — a high number of questions that is somewhat unusual for a Justice to ask one side during oral argument. Justice Alito’s questioning might have inflated the Petitioner’s total question count, in other words. Accordingly, I predict a win for the Petitioner (Johnson), who argued that mere possession of a short-barreled shotgun is not a violent felony under the ACCA.

Previous related posts:

• SCOTUS hears argument in two notable federal criminal justice cases this week
• Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
• SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"
• "Fish, Shotguns and Judicial Activism"

"After the Cheering Stopped: Decriminalization and Legalism's Limits"

The title of this post is the title of this notable and timely paper by Wayne Logan which I just saw on SSRN. Here is the abstract:

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon.

Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This essay examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The essay also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting the arrest authority of police and the many negative personal consequences of arrest.

What does Rep-elect Mia Love, the new most-interesting person in Congress, think about sentencing reform and the federal drug war?

Among the amazing and exciting stories emerging from this election season is the historic victory of Mia Love, the first black Republican woman ever elected to Congress.  This new Washington Post article discusses the remarkable backstory of this remarkable woman, and why she is now already an especially important member of the new GOP-controlled Congress: 

For at least half a century, the party of Lincoln has battled charges that it is racist, sexist and anti-immigrant. Today, voters from a conservative state made those arguments a little bit harder to make. In Utah, Mia Love became the first black Republican woman — and first Haitian American — elected to Congress.

For the GOP — a house divided that faces significant demographic hurdles to winning the White House in 2016 even as it celebrates President Obama’s shellacking — this was huge. A party threatened with electoral extinction among African Americans and immigrants now has someone to brag about in Washington. In a wave election less about fresh Republican ideas than fervid disapproval of all things presidential, Love’s compelling personal story is an oasis. She’s not just a black face in what’s often described as a party full of angry old white men. She’s a path forward.

It’s hard to overstate how unlikely Love’s victory looked on paper. Utah is less than 1 percent black. Though more than 60 percent of the state’s people identify as members of the Church of Jesus Christ of Latter-day Saints, the church is just 3 percent black. Love, 38, is one of these few black Mormons — part of a church that, until 1978, didn’t let African Americans participate in all church activities and still hasn’t apologized for its racism.

Yet, a woman born in Brooklyn to Haitian immigrants is now a duly-elected representative of the Beehive State. What led to this? A speech at a national political convention about triumphing over adversity — just like another familiar politician facing long odds.

At the Democratic National Convention in 2004, Obama spun a tale of unrealistic dreams achieved by the power of a “larger American story.”...

Eight years later, Love turned her superficially similar biography — child of foreigner makes good — into a parable for gritty, individual wherewithal. This was Horatio Alger by the Brooklyn-Queens Expressway.

Her parents fled Haiti in 1976, one step ahead of the dreaded Tonton Macoutes, the secret police of dictator Francois “Papa Doc” Duvalier. “My parents immigrated to the U.S. with ten dollars in their pocket, believing that the America they had heard about really did exist,” Love told the Republican National Convention, gathered in Tampa in 2012 to nominate Mitt Romney. “When times got tough they didn’t look to Washington, they looked within.”

Indeed, Love — a black woman who married a white man she met on a Mormon mission, left her Catholic Church and lit out to a white enclave by the Great Salt Lake — explicitly challenged what she described as a vision of America mired in demography. “President Obama’s version of America is a divided one — pitting us against each other based on our income level, gender, and social status,” she said. “His policies have failed!”...

A talented performing artist, she reportedly turned down a Broadway role in “Smokey Joe’s Cafe” because it conflicted with her wedding in 1998 to Jason Love, who, by the way, took her to a firing range on their first date. She became a neighborhood activist in Saratoga Springs, Utah, leading the charge to get a developer to spray the area for flies — “The War of the Midges” it was called — ultimately winning a seat on the city council and then being elected mayor of the small town.

Even when she entered what would turn out to be a losing congressional run in 2012, the GOP knew what it had. Even the future Republican nominee for vice president said so. “Mia has a great opportunity to extend the message of liberty and economic freedom in ways that a lot of us can’t, and we’re excited about that,” said Rep. Paul Ryan (Wis.) after hosting a fundraiser for Love.

Two years later, Ryan’s enthusiasm was borne out on Twitter after Love’s victory. She trailed Democrat Doug Owens most of the night as the results came in from Utah’s 4th District, but ultimately triumphed with 50 percent of the vote to Owens’s 47 percent. “Many people said Utah would never elect a black, Republican, LDS woman to Congress. And guess what … we were the first to do it,” she told cheering supporters, the Salt Lake Tribune reported....

Just as Obama’s policies didn’t matter as much as the fact that he existed in 2008, Love’s may not either. Judging by her Web site, she won’t upend conservative orthodoxy. She wants to repeal Obamacare. She wants to defend the Second Amendment. She’s pro-life. All-in-all, a typical Republican.

Except: Not at all. Though she may speak out against immigration or D.C. dysfunction, she is not a white-haired, pale-skinned Methuselah turning beet-red on Fox News while doing so. She is a black woman under 40.

Perhaps not surprisingly, I could not find any statements on Mia Love's campaign website concerning her views about sentencing law and policy or criminal justice issues more generally. But, as regular readers know, Utah's junior Senator, Mike Lee, is one of the co-sponsors of the Smarter Sentencing Act and Rep Paul Ryan (mentioned above) has recently become an advocate of federal sentencing reform. And Love's website on this page stresses the principles of "fiscal discipline, limited government ... [and] cutting waste and ensuring that taxpayer dollars are spent wisely." For these reasons, I am cautiously hopeful that Rep-elect Mia Love will soon become another prominent GOP member of Congress supporting federal sentencing and drug war reforms that can and should limit the most wasteful part of a big federal criminal justice system.

How might election results impact replacing Eric Holder as Attorney General?

The question in the title of this post is fraught with all sorts of political and practical uncertainty in light of the various folks thought to be front-runners for replacing Eric Holder in the most important criminal justice policy position in the nation.  This new posting from Constitution Daily highlights some of the lurking issues:  

There were signs this week that the Obama administration may not use the Senate lame-duck session between November and January to put through Holder’s replacement while it enjoyed the advantage of a filibuster-free nomination process.  But other reports indicated President Obama would make an announcement about Holder’s replacement in the days following the mid-term elections.

Through its constitutional advice and consent powers, the Senate needs to approve a new Attorney General in a simple majority vote, after the Obama administration presents a nominee and the appropriate committees question the nominee.

Given the short time frame and the timing of the November election, a public process that gives the President’s opponents a chance to speak about Holder and Holder’s replacement could prove problematic for the Obama administration.  But given the short time frame of lame duck session between November 2014 and January 2015, a troublesome confirmation hearing now would certainly be shorter than a drawn-out process in early 2015.

Three candidates are rumored to be on Obama’s short list: Labor Secretary Tom Perez, Solicitor General Donald Verrilli and U.S. Attorney Loretta Lynch.

Perez would enjoy the advantage of appearing before the Senate in July 2013 during his nomination to head the Labor Department, which could shorten his hearing process now. Ironically, Perez was approved by a 54-46 vote when Democrats and Republicans had agreed to stop fighting, at least temporarily, about filibuster rules.  But if Perez is the Attorney General pick, President Obama would need to get a new Labor Secretary approved by a GOP-controlled Senate.

Even if one were to exclude all political concerns and calculations, there are practical challenges for a nomination and a confirmation process moving forward relatively expeditiously. And, of course, inside the Beltway, political concerns and calculations often eclipse all others when it comes to headline-grabbing presidential appointments. Moreover, all these dynamics should take on an extra level of interest for sentencing fans given that federal sentencing reforms, federal marijuana policy and maybe even the death penalty could be big issues of interest and concerns for the new Republican-controlled Senate. Interesting times.

A few recent related posts:

• Eric Holder resigning Attorney General position ... next up?
• Could (and should) AG Eric Holder be even bolder on sentencing and drug war reform as a lame duck?
• Criticizing the tenure of AG Eric Holder based on the death penalty as a human rights issue
• Will Eric Holder still be Attorney General well into 2015?

"Fish, Shotguns and Judicial Activism"

The title of this post is the title of this terrific new Bloomberg commentary by Noah Feldman spotlighting some connected issues in the two big federal criminal justice cases being heard today by the US Supreme Court. Here are extended excerpts that explain why jurisprudes, and not just criminal justice fans, ought to be watching these cases closely:

Is a fish a tangible object? Does a sawed-off shotgun pose serious risk of injury? Laugh if you must, but the U.S. Supreme Court is taking up these questions in a pair of cases that will form another chapter in the saga of our vastly expanding federal criminal law. Funny as the cases may seem -- both funny strange and funny ha-ha -- they illustrate how policy and law constantly interact for a court deeply divided about the nature of statutory interpretation.

The fish case, Yates v. United States, involves a Florida fishing boat that was boarded and found to have 72 undersized grouper aboard. Ordered to bring the fish back to port where they would be used as evidence, the skipper, John Yates, instead threw them overboard and tried to substitute fish that were over the legal size requirement.

The criminal nature of the act seems intuitive. The part that has reached the Supreme Court on appeal stems from Yates’s conviction under a provision of the Sarbanes-Oxley Act that punishes anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.” The government says that Yates destroyed a tangible object, namely the fish. Yates says the law, passed after the Enron scandal, is intended to prohibit shredding documents, not throwing fish into the sea....

Aristotle, followed by today’s purpose-driven interpreters such as Justice Stephen Breyer, believed the solution is to interpret the law as its authors would have intended had they only thought of the future case. Others, such as Justice Antonin Scalia, reject the idea that the judge should do anything but apply the law as it is written. Ordinarily, you could expect the case to come down to this division, and to come out 5-4, depending on what Justice Anthony Kennedy thinks of it.

In Yates’s case, things are more complicated. Breyer may well reason that the underlying purpose of the statute is not to protect documents from destruction but to protect evidence in federal cases from being destroyed by defendants. If so, he would uphold Yates’s conviction insofar as Yates was clearly trying to get away with a crime by getting rid of the evidence.

For his part, Scalia may find himself affected by a special principle that he applies only in criminal cases: the “rule of lenity,” according to which an ambiguous statute should be interpreted in favor of the criminal defendant. If Scalia were to follow this principle, he might overturn the conviction.

Of course, whether to apply the rule of lenity depends on whether you think the law is ambiguous. The government says it isn’t: You can hold a fish, so it’s a tangible object. If Scalia thinks the ambiguity -- if any -- derives from context, not language, then according to his own jurisprudence, he shouldn’t apply the rule of lenity, and should uphold the conviction.

The shotgun case, Johnson v. United States, is no less challenging -- and no less odd. Samuel James Johnson, founder of something called the Aryan Liberation Movement, was arrested after he made the mistake of telling an undercover federal agent about his plans for attacking various non-Aryan targets. He was in possession of weapons including an AK-47 -- and that possession was a felony that would ordinarily have gotten him roughly 10 years in prison. But Johnson had three prior convictions. And under the federal Armed Career Criminal Act, a fourth conviction for a violent felony carries a minimum of 15 years.

The law defines “violent felony” to include a range of obvious crimes -- plus any “conduct that presents a serious potential risk of physical injury to another.” One of Johnson’s prior state convictions was for possession of a short-barreled shotgun. Did owning the illegal shotgun pose a serious potential risk?

You won’t be surprised to hear what the gun lobby thinks about that in its friend of the court briefs -- but that’s not really the important point here. The crucial question is, what’s the meaning of the so-called residual clause of the repeat offender law? How should the courts define what counts as a serious risk of potential injury?

The Supreme Court has been answering that question on a case by case basis -- a practice disliked by, you guessed it, Justice Scalia. He thinks the law is unconstitutionally vague, because it doesn’t provide defendants sufficient notice or the courts adequate guidance. It’s easy to see why the law worries Scalia. He wants the courts to follow the law’s literal meaning, not its policy aims -- but it’s almost impossible not to inject policy when the law tells you to evaluate “serious potential risk of physical injury.”

The purpose-oriented justices look at the interpretive issue and see business as usual. To them, the courts must always consider policy and purpose, whether the subject is tangible fish or injurious firearms.

Who’s right is a deep question of jurisprudence. But as a practical matter, the cases show that Scalia’s approach, devoted to opposing judicial activism, won’t work when Congress actively wants the judiciary to make the law up as it goes along. If Scalia wants to avoid relying on his own judgment, he has to strike down the law as unconstitutional. And that isn’t judicial restraint. It’s activism. 

Some previous related posts:

• SCOTUS hears argument in two notable federal criminal justice cases this week
• Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
• SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"

California sentencing reform initiative Prop 47 wins big getting almost 60% support

As repoted in this Huffinton Post piece, "California approved a major shift against mass incarceration on Tuesday in a vote that could lead to the release of thousands of state prisoners."  Here are the basics from a piece headlined "California Voters Deal Blow To Prisons, Drug War":

Nonviolent felonies like shoplifting and drug possession will be downgraded to misdemeanors under the ballot measure, Proposition 47.  As many as 10,000 people could be eligible for early release from state prisons, and it's expected that courts will annually dispense around 40,000 fewer felony convictions.

The state Legislative Analyst's Office estimates that the new measure will save hundreds of millions of dollars on prisons.  That money is to be redirected to education, mental health and addiction services -- a novel approach that reformers hope will serve as a model in the larger push against mass incarceration.

This official webpage with California ballot measure voting results reports that Prop 47 received 58.5% of votes in support. This big margin of victory strikes me as big news that can and should further propel the political narrative that, at least in some places, significant numbers of voters are significantly interested in significant sentencing reform.

Awaiting results from the Last Frontier, marijuana reform initiatives getting majority support

I am about to call it a night now that a few hours have passed since Election Day 2014 ended, but I am eager to note before I do that marijuana reform had a pretty good day at the polls.  A legalization initiative won big in DC, and another won confortably in Oregon, and a medical marijuana initiative garnered 58% of the vote in Florida though did not make the 60% level needed to become law.  And, in the Last Frontier, a legalization initiative is leading as of this writing.  For all the details and some early coverage, check out posts and links Over at Marijuana Law, Policy & Reform:

• Where to follow marijuana ballot measure results?

• Early marijuana initiative votes have DC favoring legalization and Florida supporting but not passing medical marijuana

• Oregon voters create a third state to fully legalize recreational marijuana

• Senator Rand Paul says feds ought not preclude DC (or states) from making local marijuana policy

Is major federal sentencing reform possible now that Republicans have full control of Congress?

As the polls had come to predict in the weeks leading up to Election Day 2014, voters have now decided to put Republicans in control of both houses of Congress.  Way back in this post in July 2013, I asked the question "Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?," and now we are on a path to find out.  

Of course, with respect to sentencing reform and so many other federal legislative issues, a whole lot will depend on whether and how a Republican-controlled Congress wants to work with or work against the lame-duck President Obama.  Ever the hopeful optimist, I believe that Republicans in the new Congress will be looking to pass some bills that President Obama will sign into law and that at least some sentencing reform bills will be in this mix.  

Some recent related posts:

• Should advocates of federal criminal justice reform be rooting for Republicans to take control of Senate?
• Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
• Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform
• Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms
• Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms
• "4 Reasons Conservatives Are Embracing Prison Reform"

Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates

In this post this morning, I noted that the Supreme Court is finally due to get back around to working on important criminal justice issues with oral arguments scheduled in  Yates v. United States, No. 13-7451 and in Johnson v. United States, No. 13-7120.  I now see that the always great SCOTUSblog now has up these two new posts providing detailed argument previews:

• On Johnson from Rory Little, "Are there (finally) five votes to declare the residual clause of the ACCA unconstitutionally vague?"

• On Yates from Lyle Denniston, "Can plain language be vague?"

In addition, as religious blog readers may remember, another view of the ACCA issues in Johnson was covered in this space a few weeks ago via this SCOTUS preview guest-post by Professor Stephen Rushin titled "Measuring the Dangerousness of Felonies for Sentencing Purposes."

US District Judge Kopf reports on retroactive implementation of new reduced federal drug guidelines in Nebraska

As noted in this post from last week, the start of November2014  marked the official start for the new reduced federal guidelines for drug offenses put in place by guideline Amendment 782.  At his great blog, US District Judge Richard Kopf has this lengthy new post on the practicalities of implementing the Amendment's retroactivity in his district.   I recommend the whole post, from which these excerpts are drawn:

I will take a moment to describe the implementation of Amendment 782 in the District of Nebraska.  We are a small district with a large criminal case load, especially including drug cases.  As of June 30, 2014, on a per-judge basis, we ranked seventh in the nation and first in the Eighth Circuit for criminal cases. Indeed, Amendment 782 may impact over 700 offenders previously sentenced in our court.  Behind the scenes, the implementation of Amendment 782 has had a huge impact on us as we try to fully and fairly implement this important retroactive change to the Guidelines.

With 700 offenders potentially eligible for a sentencing reduction, our district decided that every potentially eligible offender would have his or her case individually scrutinized whether or not a motion had been filed and that every such offender would have a lawyer.  After conferring with the United States Attorney, the Federal Public Defender and our probation office, we issued general (standing) orders....

Four people are responsible for superintending the implementation of Amendment 782: two very senior United States Probation officers who are experts in the Guidelines; the head of the drug prosecution unit of the US Attorney’s office; and the Federal Public Defender.  They have cooperated nicely, and have established internal operating protocols between them.  After the Clerk’s office tracked down the whereabouts of each of the 700 or so offenders through the Bureau of Prisons (a huge task), the group of four sensibly decided upon a “triage” plan.  Offenders who are eligible for release on the earliest possible date (November 1, 2015), get attention first.  Offenders who are eligible later receive attention later.

Ultimately, the Federal Public Defender, or one of his assistants or a Criminal Justice Act panel lawyer, will file a motion for relief when the group of four decide that the time is right.  A probation officer will submit and file as a restricted document a worksheet that includes a calculation under Amendment 782 and the Guidelines.  That worksheet will also include a report on the offender’s institutional adjustment and the probation officer’s recommendation about whether relief should be granted....

After the motion is filed, and the worksheet is submitted, the prosecutor and defense lawyer will confer and in most cases a stipulation will be reached.  Assuming a stipulation is reached, it will be filed.  After that, and without a hearing, relief will normally be granted.  If no stipulation can be reached, then in my cases a hearing will be held.

It is possible that a judge might tentatively conclude not to follow a stipulation. While I cannot speak for the other judges, in my cases, I will hold a hearing to give the parties an opportunity to be heard.  Whether or not the defendant will be present at such a hearing has yet to be determined by me.  In the past, if a dispute of fact arose and the offender could be expected to have unique knowledge of the facts, I have not hesitated to give the offender an opportunity to appear and testify.  It is probable that I will follow the same approach for Amendment 782 factual disputes where the testimony of the offender is critical to the fair resolution of the matter.  However, in the huge majority of cases, this will not be necessary.

In summary, the equitable and effective implementation of Amendment 782 requires a lot of “behind the scenes” work.  We are fortunate to have the cooperative, but always zealous, assistance of prosecutors and defense lawyers, aided by a probation office that is second to none.

Will Election 2014 speed up or slow down the marijuana reform movement?

This new Quartz piece, headlined "However the US votes on marijuana today, it’s 2016 that really matters," highlights that the marijuana reform movement will march on even if voters this election cycle reject various reform initiatives now on the ballot: 

There are three marijuana ballot initiatives in today’s midterm elections — in Alaska, Oregon and Washington DC — where voters will decide on outright legalization of recreational marijuana.  In a fourth ballot, in Florida, voters will vote on a proposed amendment to the state’s constitution, which would legalize medical marijuana.  Initiative 71 in the nation’s capital is the only ballot that looks certain to pass. The remaining three are expected to go down to the wire.

While passage of these ballots could potentially signal growing momentum for the pro-marijuana legalization movement nationally, marijuana advocates are looking to the 2016 general elections as a more accurate barometer of where they stand within the American cultural and political mainstream.  The reason being is that more younger and minority voters — groups who polls show support marijuana legalization in higher numbers — vote during quadrennial general elections, while the electorate tends to be older and more conservative in the midterms.

At least five US states — Arizona, California, Maine, Massachusetts and Nevada — will hold ballot initiatives in 2016.  And the diverse political makeup of those states, from the conservative battleground of Arizona to the liberal hotbed of Massachusetts, means that success at the ballot box would show that legalization spans the political and ideological spectrum, says Mason Tvert, spokesperson for the Marijuana Policy Project.  “Whatever happens Tuesday, we don’t see a step backwards for the movement going into 2016,” Tvert tells Quartz.  “Public opinion is on our side, it is only going in one direction, and that is toward an end to marijuana prohibition in this country.”

Though it is a near certainty that marijuana reform issues will be an even bigger part of the political conversation in 2016 than in 2014, I expect the final voting results in Alaska, Florida, Oregon and Washington DC will have a huge impact on the tenor and tenacity of those advocate pushing for and resisting reform. If most of the reform initiatives pass in this year, advocates for reform will be able to continue a narrative of legalization's inevitability it will become every harder for serious candidates for state and federal offices to avoid discussing this issue. But if all of these initiatives fail, opponents of reform can and will assert that the voters are already starting to turn away from supporting legalization now that they are seeing what it really means in a few states.

Over at Marijuana Law, Policy & Reform, I have completed this series of posts on the dynamics in play in the three states with big reform initiative on the ballot:

• Election 2014 Buzz: looking forward to close votes in Alaska, Florida and Oregon (and DC?)

• Election 2014 Buzz: could Alaska be the best of all legalization laboratories?

• Election 2014 Buzz: could older voters in Florida get medical marijuana initiative to 60%?

• Election 2014 Buzz: will second time be the charm for legalization in Oregon?

"Profiles in Probation Revocation: Examining the Legal Framework in 21 States"

The title of this post is the title of this notable new research report just released by the Robina Institute of Criminal Law and Criminal Justice. Via the Robina Institute at this webpage, here are the basics of the report's coverage and contents:

The Robina Institute is pleased to present the publication of Profiles in Probation Revocation: Examining the Legal Framework in 21 States, a close look at probation revocation practices in twenty-one states and the Model Penal Code.  The first publication of the Probation Revocation Project, Profiles on Probation Revocation, allows for a comparison across selected jurisdictions.  This report reveals a wide variation in probation practices in the United States and we hope it will further the dialogue on community supervision and probation practices.

This publication is the first in a series that will be produced by the Probation Revocation Project.  The focus of this publication is the legal framework of probation: that is, how have the legislature and courts defined the purpose and functions of probation in each state?  The focus of one or more subsequent publications will be how probation actually works within that legal framework.

In addition, I received from one of the authors of the report this more extended summary of its coverage:

The report compiles — in a convenient format — the results of a yearlong research project conducted by the Robina Institute on the laws relating to probation revocation in 21 American states.  By leafing through the volume’s four-page “legal profiles,” readers can easily see how much variation exists in statewide laws of probation and probation revocation, while zeroing in on issues of greatest interest.  Whether a reader’s jurisdiction is included in the report’s 21 states or not, the legal profiles contain a wealth of information that will allow for comparison with one’s own system.

The focus of the report is probation revocations and what leads up to them.  Each legal profile describes a particular state’s approach to issues collected under twelve headings concerning probation.  These are: Definition and Purpose, Forms of Probation, Length of Term, Early Termination, Supervision, Conditions, Modification of Conditions, Extension of Probation Term, Revocation Procedures, Legal Standard for Revocation, Revocation and Lesser Sanctions, and Appeal. The selected topics embrace aspects of the use of probation that may contribute to (or, conversely, reduce) revocation rates or the numbers of probationers who enter revocation proceedings.

Each profile begins with the nature of the probation sanction itself, including lengths of term and the burdens placed on probationers through sentence conditions. These are the early precursors of revocation rates.  The profiles also focus on what happens during the probation term, and how the law allows the terms of conditions of probation to lighten or grow more restrictive in individual cases. For example, legal arrangements during the probation period that encourage probationers to succeed — or at least do not impede their success — will have an impact on revocation numbers. Finally, the profiles give close attention to each state’s probation revocation process itself, including the legal grounds for revocation, the identity of the ultimate decisionmaker (judicial versus administrative), rules for hearings, procedural rights that accrue to the probationer, and the range of sanctions that may be imposed after a sentence violation is proven or admitted.

The report relies on official legal source materials such as statutes, court rules, caselaw, administrative rules and policies, and publicly-available documents. The report seeks to describe, more or less, the “law-on-the-books,” while realizing that the official sources do not necessarily reflect actual practices of probation supervision and revocation on the ground. Even so, the report provides new and valuable comparative information about statewide legal superstructures for probationary sentences. While not a full portrait of what happens in individual states, the report illuminates crucial legal boundaries within which local and case-specific discretion must be exercised.

SCOTUS hears argument in two notable federal criminal justice cases this week

Though today, Election Day 2014, is a big day for citizens to consider who gets to be in charge of making federal laws in Congress, tomorrow is a big day for SCOTUS Justices to consider the reach of some of those laws.  Via SCOTUSblog, here are the basics of the two federal criminal justice cases being hear in the Supreme Court on Wednesday:

 Yates v. United States, No. 13-7451

Issue:  Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

Johnson v. United States, No. 13-7120

Issue:  Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

Why I believe criminal justice reform is on the ballot this year ... and reflected in anti-Obama sentitments

The title of this post is designed as something of a retort to this interesting new Daily Beast commentary by Inimai Chettiar and Abigail Finkelman.  The piece is headlined "Why Isn’t Prison Justice on the Ballot This Tuesday?," and here are excerpts (with my emphasis added):

Whichever party wins control of the U.S. Senate, voters can wince at the prospect of continued polarization and gridlock.  But one issue, intriguingly, seems ripe for genuine bipartisan cooperation: criminal justice reform.  Yet, partly because it has become less controversial, discussions about criminal justice policy have been absent from the campaign trail.  This silence creates the risk that a moment of promise will become a missed opportunity for change.

The fact that criminal justice policy is not a campaign issue is, itself, noteworthy. Consider it Sherlock Holmes’ dog that didn’t bark.  For decades, politicians vied to be the most punitive, from the 1977 New York City mayoral race, which improbably turned on the issue of the death penalty (over which a mayor has no power) to the 1994 referendum that passed “three-strikes-and-you’re-out” in California.  The 1988 presidential race is rightly remembered for its focus on demagogic and racially coded appeals....

But times have changed, and “tough on crime” has been replaced with “smart on crime.”  In the last decade, states as disparate as Texas, New York, Kentucky, and California have instituted reforms to reduce their prison populations and ease up their harsh sentencing laws.  The White House just launched a major initiative to implement a more modern, sensible drug policy.  Even Congress passed a law reducing the disparity between crack and powder cocaine sentences.  And Americans overwhelmingly support eliminating mandatory minimum sentences for nonviolent drug offenders.

Yet, by and large, candidates have steered clear of criminal justice reform this election cycle.  Perhaps they’re fearful of being painted as soft on crime.  Or perhaps they simply don’t care enough about the issue to take a position.

Check out the issues pages of the websites of Senate candidates in the hottest races. Neither Michelle Nunn nor David Perdue, the two major Senate candidates in Georgia, talk about criminal justice reform.  Neither do Mark Udall and Cory Gardner in Colorado. Or Joni Ernst and Bruce Braley in Iowa.  In fact, you’d have to look far to find a candidate who makes even the most pro forma nod to the issue.

And that’s too bad, because not only is criminal justice important on its own, but because it impacts so many other important issues.  Voters consistently list the economy and inequality as top concerns.  The current system of mass incarceration costs governments around $260 billion annually; that’s about half the 2014 federal deficit.  In fact, it’s among the largest drivers of economic inequality in the United States.  Finding employment or housing can be nearly impossible with a criminal record.  Locking up the primary breadwinner can push a family from working-class to impoverished. And children growing up with incarcerated parents too often get pulled into the system themselves....

Politicians and candidates cannot be allowed to remain silent on one of the largest human rights issues on American soil.  But they also can’t be allowed to limit themselves to bromides about wanting reform without laying out next steps, and taking them.  After all, some officeholders still resist needed changes, even as others link arms for reform.

Sens. Rand Paul (R-KY) and Cory Booker (D-NJ) may have drawn wide attention and praise for their REDEEM Act. But the Smarter Sentencing Act of 2014, which went further and was cosponsored by Ted Cruz and Elizabeth Warren, among others, was blocked by a bipartisan group of senators.  Similar battles are unfolding in state legislatures.  But, as always, there’s a way to get legislators to change their actions: threaten to kick them out.

We’ve missed the chance to make mass incarceration an issue in 2014.  But a few weeks ago, Bill Clinton predicted the issue would play prominently in the 2016 presidential election.  Let’s hope he’s right.  But such a drastic change in election politics won’t happen unless we demand to know where candidates stand on criminal justice.  We must ask why they’re holding up bills, and if they’re only paying lip service to reform.

We need to know what they will do — or why they’re not doing anything — so that the United States no longer wears the scarlet letter of being the largest jailor in the world.  And if they can’t answer, hold them accountable.

I have emphasized key phrases above which I believe serve as justifiable criticisms of one particular politician this election cycle: President Barack Obama.  As regular readers know, I have long been talking about what I think President Obama could and should be doing in response to mass incarceration.  On Inauguration Day 2009, in this post, I asked "Is it too early to start demanding President Obama use his clemency power?".  Similarly, in post after post and post, I have highlighted that Prez Obama and others in his administration have been much more willing and eager to "talk the talk" than to "walk the walk" when it comes to criminal justice reform.

In other words, in my view President Obama is the politician who should be getting the most criticism for, in the words of this commentary, being content to spew "bromides about wanting reform without laying out next steps, and taking them," for missing "the chance to make mass incarceration an issue in 2014," and for helping to ensure the United States still "wears the scarlet letter of being the largest jailor in the world."  And, like Inimai Chettiar and Abigail Finkelman, I want this politician to be held accountable.  And, if polling and predictions about a Republican surge on election day tomorrow are accurate, it does appear that President Obama and his party are going to be held accountable for their failings in this regard.

(Side note:  I also think Prop 47 in California as well as the marijuana initiatives on the ballot in a number of states and localities serve as another way that "prison justice" can be seen as being on the ballot this year.)

Arguing for releasing all drug prisoners and reparations to "right the drug war’s wrongs"

Lucy Steigerwald has this provocative new Washington Post blog/commentary piece headlined "Sentencing reform and how to right the drug war’s wrongs." Here are excerpts:

On November 1, the U.S. Sentencing Commission’s plan to reform sentencing for certain drug crimes went into effect. The details were hammered out back in April and July, and they could have been challenged by Congress. Thankfully, Congress declined to do so, and now the commission has a chance at helping nearly half of the 100,000 inmates in federal prison come home earlier than they otherwise would have.

For decades, the war on drugs rolled onward, leaving a pulpy mass of casualties in its wake. But since at least 2012, when Colorado and Washington state legalized recreational use of marijuana, there has been some serious strides against this dangerous domestic policy. Generally, however, any progress made on drugs has been confined to changing the legality of substances....

Even the tentative, good-but-not-good-enough Fair Sentencing Act, which reduced the sentencing disparity between crack and cocaine in 2010, was initially not retroactive until the USSC voted to make it so.... The USSC is doing something more substantial still with their new guidelines, which allow for retroactive petitioning for reduced time in prison starting in November 2015. Prisoners may begin petitioning for these reductions now, however. Unfortunately, those sentences cannot fall below the mandatory minimums, which can only be changed by Congress. Ideally, the Justice Safety Valve Act, introduced by Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.), which would give judges more flexibility to depart from mandatory minimums, will be eventually signed into law, allowing for some of the damages wrought by these mandatory sentences to be mitigated.

In addition, even though the sentencing reforms help the federal prison population, we are very far from instituting anything as optimistic on a statewide level. Most of the some-400,000 state prisoners in jail on drug-related crimes are out of luck unless they get individual commuting of their sentences.

As the war on drugs loses popularity, the question of what to do about the lives ruined and interrupted is going to come up again and again. One of the more fascinating, though politically unrealistic suggestions for what to do about this mess is one offered by a Green Party candidate for governor of New York: Howie Hawkins suggests releasing all drug prisoners, and putting together a “panel on reconciliation” between them and their communities and governments. They want voting rights restored, school grants restored, help for children of the former cons, and prevention of would-be employers asking about criminal histories. They even suggest full-on reparations for “the communities affected.”

This won’t pass muster, probably not even in the most liberal states. The slow reforms being offered by the USSC, and criminal justice advocates like Sen. Paul might be all we get. But the reparations idea does present a question of what society should do after the madness of a moral panic dims, and the end result turns out to be 2.3 million people in prison or jail. Most people wouldn’t object to a payment to any of the 147 people freed from death row, especially those who turned out to be unequivocally innocent. What happens when we realize that neither possessing nor selling drugs is a real criminal act? Doesn’t that suggest that we have a lot of innocent people in prison who will need a lot of help in restarting their lives?

"Narcotics Prosecutors as Problem Solvers"

The title of this post is the title of this intriguing little new piece by Mark Osler now available via SSRN.  Here is the abstract:

When deciding whether and how to pursue narcotics cases, federal prosecutors should focus not on number of convictions or quantity of drugs intercepted, but rather on whether they are solving problems through the cases they choose.  He first examines federal prosecutors' extremely broad discretion in selecting narcotics defendants and charges, as well as some of the negative effects of the failure to employ a "problem solving" rubric in the war on drugs to date.  He then suggests a number of changes that such a rubric would bring to the way narcotics cases are pursued, including a change in the proxy that prosecutors use for defendant culpability from drug quantity to drug profits.

Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"

Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang.  His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system.  But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage.  In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.  The outcome is very largely determined by the prosecutor alone....

Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain.  If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources).  Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little.  Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense.  For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).

Prior related posts on Judge Rakoff's commentaries:

• "Why innocent people plead guilty": Judge Jed Rakoff suggests "tens of thousands of innocent people" have been "coerced into pleading guilty"
• Judge Rakoff calls for fraud guidelines to be "scrapped in their entirety" in favor of a "non-arithmetic, multi-factor test"
• Thoughtful response to Judge Rakoff's call to scrap fraud guidelines

Interesting review of the (too cautious?) work of California's Attorney General

The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:

Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional.  Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."

That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....

On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.…  [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."

Harris, 49, bristles at the suggestion that she is afraid to take stands.  "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview.  She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....

During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy.  She also has created units to focus on cyber-crime and cyber-privacy.  In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights.  In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed.  He pointed to a study that blamed logjams in the system on various factors.

Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law.  If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court.  If she decided against an appeal, the death penalty in California would probably end.  "We will have to see what the court rules," Harris said, without elaborating on her thinking.

She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division.  Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."

When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris.  "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...

[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"

Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.

She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."

"Crashing the Misdemeanor System"

The title of this post is the title of this intriguing article by Jenny Roberts recently posted on SSRN. Here is the abstract:

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis.  Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing. 

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court.  This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.”  Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts.  Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively.  As a result, many cases end in a quick guilty plea with little or no jail time.  The “broken windows theory” suggests that everyone benefits from such efficiency.

Yet the effect of misdemeanor convictions is anything but minor.  A quick guilty plea appears advantageous for a disorderly conduct misdemeanor in exchange for the night already served in jail.  But this conviction can, and does, lead to eviction from public housing.  It can, and does, pose a bar to showing “good moral conduct” for citizenship.  And it can, and does, make it difficult to find work in an era when employers routinely run criminal background checks.  The many harsh collateral consequences of even a “minor” misdemeanor conviction create serious barriers to the most basic aspects of life.  Mass misdemeanor processing thus harms the individual, his family, his community, and society.

Refusing to process individuals quickly would impose some of the real costs of mass misdemeanor processing on the justice system itself.  Such a “crash” of the criminal justice system would not be dramatic.  Instead, if defense counsel litigated some of the many factual and legal issues that misdemeanors present, the system would grind to a halt under its own weight.  The representation would be nothing more than Gideon and its progeny require, but would shift the burden for mass misdemeanor processing to the prosecution and the courts from misdemeanor defendants. Under this weight, legislators might reduce the short- and long-term costs of mass misdemeanor policing.  Prosecutors might exercise greater discretion, and police officers might maintain order without needless arrests.

Part I explores the idea of crashing the system as a potential response to the misdemeanor crisis.  Part II describes the potential role for defense counsel in such an institutional response.  Part III outlines specific strategies that specialized defender practice groups might pursue to crash the system.  Part IV explores arguments for and against efforts to crash the existing misdemeanor system.

Following-up in Maryland after court rules some sex offenders not subject to new registration requirements

This lengthy new Baltimore Sun article, headlined "Court ruling upends Maryland's sex offender registry," provides an interesting follow-up a few months after a state court ruling disrupted the state's sex offender registry. Here are excerpts:

The memory of the break-in still stirs terror three decades later: The Rockville woman was ordered out of bed at knifepoint by a teenage burglar, who commanded her to stare out a window as he started to take off her robe.  Before anything else could happen, the woman's husband, who had been tied up in the bathroom, broke his bonds and violently tackled the teen, leaving both of them with stab wounds. That ended Robin Lippold's 1981 summer crime spree, which included other burglaries and a rape.

But it did not eliminate the woman's fear, which lingered long after the pre-dawn attack. That dark emotion surfaced again last week, when she learned that Lippold had been removed from Maryland's sex offender registry, a searchable public database that lists each person's residence and place of employment.

The 50-year-old Lippold is among 1,155 sex offenders who have been removed from the registry since February, according to data obtained by The Baltimore Sun through a public records request.  Almost 400 of them are rapists, including a man who raped a blind teenage girl in a mall parking lot and a man who raped a 67-year-old woman who was walking her dog.

Most have been stripped out because of a decision by Maryland's highest court.  That ruling handed a victory to advocates who said the registries were unfairly punitive, but has troubled legislators and upset victims.... The Court of Appeals ruling — that laws governing the registry subjected some offenders to a form of retroactive punishment — has radically altered Maryland's system of tracking people convicted of sex crimes.

Experts say there's little evidence that the registries help keep the public safe, and can unfairly punish offenders. Some judges around the United States have agreed that the registries amount to unconstitutional punishment in some cases.  In Maryland, a prominent defense lawyer is continuing to fight in the courts, seeking to get more names removed from a list that she says stigmatizes too many people.

But the lists are popular among legislators, who see them as an option to keep the public safe and give people a reassuring way of looking up who among their neighbors or colleagues has been convicted of sex offenses. Sen. James Brochin, a Baltimore County Democrat, said of the Maryland appeals court judges, "What they've done is sickening … it's mind-boggling. The court's shown a total disregard for the community."...

While the registries have many supporters, researchers have found little evidence that they reduce the rates at which sex offenders commit new crimes.  "Those policies were based on myths: Once an offender, always an offender," said Elizabeth J. Letourneau, a sex crime researcher at the Johns Hopkins University. "They are unlikely to be harming community safety by removing people like that from a registry."

Lisae C. Jordan, an advocate for victims of sex crimes, said accurately measuring recidivism rates can be difficult because many offenses go unreported. But she also noted that registries have never been a way to stop all offenses because most would-be rapists have never been convicted.

What the studies do show, experts say, is that having to register makes it harder for ex-convicts to successfully find work and have productive lives.  In postings on an Internet forum critical of the Maryland registry, offenders have described their struggle getting work..... In other cases, communities have turned to vigilante justice.  Last week, a Baltimore woman was sent to prison for six years for her part in the beating death of a sex offender.

Now Maryland's registry is being trimmed because the Court of Appeals ruled in 2013 that people who committed crimes before it was created had been subjected to fresh punishment in violation of the Maryland Declaration of Rights....  The Court of Appeals was fragmented but in a patchwork of opinions, ultimately sided with Haines. Applying the laws retroactively violated the "fundamental fairness and the right to fair warning" about the consequences of a crime guaranteed by the state constitution, Judge Clayton Greene Jr. wrote.

Courts across the country have split on whether states should be allowed to stock their registries with people who committed crimes long ago....

Nancy S. Forster, a Baltimore attorney representing a number of people challenging Maryland's registry laws, said she has other cases in the works that could lead to more offenders being taken off the list.  The attorney general's office is examining the cases and will fight in court when it sees the opportunity.  

And some lawmakers said they plan to craft legislation that might soften the impact of the Court of Appeals ruling. Possible options include creating a registry that's only available to law enforcement or using a risk assessment system to flag the most dangerous offenders....

Now that the judges have had their say, Sen. Nancy Jacobs said, the debate now should focus on the victims of sex crimes.  Jacobs, a Cecil and Harford County Republican, pushed hard to toughen sex crime laws in 2009 and 2010, but is leaving the Senate.  "We need to care more about the victims than about the people who sexually assaulted these children," she said. "They need help."