Sentencing Law and Policy

"What will happen to Pennsylvania's death penalty?"

The title of this post is the headline of this lengthy local article. Here are excerpts:

Five times a year, Pennsylvania corrections officials meet inside a white block masonry field house on the grounds of the prison near Penn State, and carry out a mock execution. They escort the “inmate” to the execution chamber. They strap that person onto the gurney. And then they simulate injecting a lethal dose of drugs into his body.

They perform this drill even though capital punishment in the commonwealth remains indefinitely on hold while government officials await a report, now years in the making, analyzing capital punishment’s history, effectiveness and cost in Pennsylvania.

The death sentence imposed last month on Eric Frein, the Poconos survivalist who killed a State Police trooper and injured another in September 2014, has reignited questions – and in some cases, criticism – about why the state has taken so long to decide whether to continue or stop, once and for all, executing criminals....

And state Sen. Scott Wagner, a York County Republican hoping to unseat the governor next year, has signaled it’s an issue he’ll press on the campaign trail. “I can assure you, when I’m governor, within the first 48 hours, I’ll be up there reversing that moratorium,” Wagner said in an interview Friday....

In Pennsylvania, ... Wolf, a Democrat, [imposed] a moratorium on the death penalty after taking office in early 2015. He argued the state should await the results of a long-awaited report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment before putting any more criminals to death. The report is expected to analyze more than a dozen factors involving the death penalty, such as cost, bias and effectiveness.

Wolf’s decision has drawn backlash from organizations like the Pennsylvania District Attorneys Association, which in 2015 called it “a misuse of [the governor’s] power” that ignores the law. The study itself has also come under fire, particularly for how long it’s taking to complete: It was ordered up by the state Senate in 2011 and was supposed to be completed by 2013....

Meanwhile, tax dollars still go toward keeping prisoners on death row. Each of the state’s 165 death row inmates — from Frein, who was sentenced last month, to Henry Fahy, who has been awaiting his punishment since November 1983 — cost Pennsylvania $10,000 more a year to house than a convict sentenced to life in prison. This does not account for the additional legal fees associated with capital cases: Some estimate prosecuting and litigating a capital murder case can cost up to $3 million more than a non-capital murder case....

“We have spent billions of dollars having a death penalty – including maintaining a death facility – and we have not executed someone who did not ask to be executed” since 1962, Sen. Daylin Leach, a Montgomery County Democrat and one of four members of a Senate task force awaiting the report, said last week. Leach is an unapologetic opponent of the death penalty. He has introduced bills to abolish it since 2009, arguing that it is “immoral and barbaric,” and calling the cost of capital punishment “troubling” – including the cost of maintaining the execution complex.

US Sentencing Commission releases report on "Youthful Offenders in the Federal System"

The US Sentencing Commission released this notable new report today titled simply "Youthful Offenders in the Federal System." Here is the report's introduction and "key findings" from its first two pages:

Introduction

Although youthful offenders account for about 18 percent of all federal offenders sentenced between fiscal years 2010 and 2015, there is little current information published about them.  In this publication, the United States Sentencing Commission (“the Commission”) presents information about youthful offenders, who for purposes of this report are defined as persons age 25 or younger at the time they are sentenced in the federal system.

Recent studies on brain development and age, coupled with recent Supreme Court decisions recognizing differences in offender culpability due to age, have led some policymakers to reconsider how youthful offenders should be punished.  This report reviews those studies and provides an overview of youthful federal offenders, including their demographic characteristics, what type of offenses they were sentenced for, how they were sentenced, and the extent of their criminal histories.

The report also discusses the intersection of neuroscience and law, and how this intersection has influenced the treatment of youthful offenders in the criminal justice system. The Commission is releasing this report as part of its review of the sentencing of youthful offenders.  In June 2016, the Commission’s Tribal Issues Advisory Group (TIAG) issued a report that proposed several guideline and policy changes relating to youthful offenders, including departure provisions and alternatives to incarceration.

Because many of the TIAG recommendations on this topic apply to all youthful offenders, and not just Native Americans, the Commission voted to study the treatment of youthful offenders as a policy priority for the 2016-2017 amendment cycle.

The key findings in this report are that:

• There were 86,309 offenders (18.0% of the federal offender population) age 25 or younger sentenced in the federal system between 2010 and 2015.

• The majority (57.8%) of youthful offenders are Hispanic.

• There were very few youthful offenders under the age of 18 sentenced in the federal system (52 between 2010 and 2015).

• Almost 92 percent of offenses committed by youthful offenders were nonviolent offenses.

• Similar to the overall federal offender population (or non-youthful offenders group) the most common offenses that youthful offenders committed were drug trafficking (30.9%), immigration (28.6%), and firearms offenses (13.7%).

• The average sentence for youthful offenders was 34.9 months.

• Youthful offenders were more likely to be sentenced within the guidelines range than non-youthful offenders (56.1% compared to 50.1%).

• Youthful offenders recidivated at a much higher rate than their older counterparts — about 67 percent versus 41 percent.

"U.S. Prison Population Trends 1999-2015: Modest Reductions with Significant Variation"

The title of this post is the title of this brief "Fact Sheet" from The Sentencing Project, which gets started this way:

While states and the federal government have modestly reduced their prison populations in recent years, incarceration trends continue to vary significantly across jurisdictions. Overall, the number of people held in state and federal prisons has declined by 4.9% since reaching its peak in 2009.  Sixteen states have achieved double-digit rates of decline and the federal system has downsized at almost twice the national rate.  But while 38 states have reduced their prison populations, in most states this change has been relatively modest.  In addition, 12 states have continued to expand their prison populations even though most have shared in the nationwide crime drop.

Six states have reduced their prison populations by over 20% since reaching their peak levels:

• New Jersey (35% decline since 1999)

• New York (29% decline since 1999)

• Alaska (27% decline since 2006)

• California (26% decline since 2006, though partly offset by increasing jail use)

• Vermont (25% decline since 2009)

• Connecticut (22% decline since 2007)

Southern states including Mississippi, South Carolina, and Louisiana, which have exceptionally high rates of incarceration, have also begun to significantly downsize their prison populations.  These reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay.  Moreover, the states with the most substantial prison population reductions have often outpaced the nationwide crime drop.

The pace of decarceration has been very modest in most states, especially given that nationwide violent and property crime rates have fallen by half since 1991.  Despite often sharing in these crime trends, 15 states had less than a 5% prison population decline since their peak year.  Moreover, 12 states have continued to expand their prison populations, with four producing doubledigit increases since 2010: North Dakota, Wyoming, Oklahoma, and Minnesota.

Full Senate confirms Donald Trump's first circuit pick, Judge Amul Thapar, to Sixth Circuit

As Politico reports here, the "Senate voted 52-44 on Thursday to install Thapar, a favorite of Senate Majority Leader Mitch McConnell (R-Ky.), at the Cincinnati-based 6th U.S. Circuit Court of Appeals."  Here is more about this confirmation and additional judicial confirmation battles on the horizon:

The confirmation marked the first judicial nominee aside from now-Justice Neil Gorsuch to the Supreme Court for Trump, who came into office with an usually higher number of judicial vacancies....

In addition to Thapar, Trump has nominated 10 prospective judges to the lower courts. Two in particular could trigger a partisan battle over the so-called blue slip rule — a long-standing custom of the Senate Judiciary Committee that says the panel will not advance a judicial nominee without the consent of both the candidates’ home-state senators.

The committee’s chairman, Sen. Chuck Grassley (R-Iowa), said recently that the blue slip rule would be much stricter for district court judges that cover just a single state, rather than the more powerful circuit court nominees that span a broader region.  And other Republicans agree, despite comments earlier this month that signaled the GOP would stand by that tradition.  “I like the blue slip tradition as it pertains to district court judges, but I never thought it applies to circuit court,” said Sen. Jeff Flake (R-Ariz.), a member of the Judiciary Committee.

Democrats have already started fighting back, arguing that the Judiciary Committee strictly abided by the blue slip rule under President Barack Obama and that Trump should be treated the same way.  Under Obama, 17 judicial nominees — 11 for the district court and six for the circuit courts — never advanced because a blue slip wasn’t returned. One of the unreturned blue slips was for the vacant 6th Circuit seat that will be filled by Thapar after his confirmation on Thursday....

Thapar, like Gorsuch before him, was drawn from a list of potential Supreme Court nominees released by Trump during his campaign with input from the conservative Federalist Society and Heritage Foundation.

As I noted in this post when Judge Thapar was nominated earlier this year, I have come to know Judge Thapar personally and I think very highly of him (in part because he asked me to file an amicus brief in one of his highest-profile sentencing cases).  I am already excited to see his coming opinions in criminal justices cases for the Sixth Circuit.  And Judge Thapar's nomination and reasonably smooth confirmation now perhaps serves to make him a front-runner for any coming Supreme Court opening. 

Alabama finally carries out death sentence for Thomas Arthur

As reported here by CNN, "Alabama executed death row inmate Tommy Arthur early Friday after a lengthy court battle that included multiple lethal injection delays." Here is more:

Arthur, 75, was convicted in the 1982 murder-for-hire of romantic rival Troy Wicker. The inmate, who was nicknamed the "Houdini" of death row because he'd had seven prior execution dates postponed, died by lethal injection at the Holman Correctional Facility at Atmore.

The Supreme Court issued a temporary stay Thursday, then lifted it later that night, leading to his execution.

"No governor covets the responsibility of weighing the merits of life or death; but it is a burden I accept as part of my pledge to uphold the laws of this state," Gov. Kay Ivey said in a statement. "Three times Tommy Arthur was tried, convicted, and sentenced to death. Each time his case was reviewed thoroughly at every level of both our state and federal courts, and the appellate process has ensured that the rights of the accused were protected."

Arthur's lawyers had filed motions arguing that Alabama's method of execution was cruel and unusual, and that the attorneys should have access to a cellphone while witnessing the execution. Before the Supreme Court decision, stay requests had been rejected by the 11th US Circuit Court of Appeals, the Alabama Court of Criminal Appeals and the governor....

Arthur was convicted of killing Wicker of Muscle Shoals by shooting him in the right eye on February 1, 1982, according to court documents. He was a work release prisoner at that time. He had been convicted of killing his sister-in-law in 1977, also by shooting her in the right eye.

"Capital Punishment and the Courts"

The title of this post is the title of this commentary/book review authored by Jonathan Mitchell and available via SSRN. Here is the abstract:

In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence.  They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972 — leaving us with a regime that imposes costly, arcane, and highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking.  The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy.  And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.

Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified.  The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations.  It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty.  Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency.  Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board — or at least as applied to specified categories of offenders — unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.”  The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their thorough and comprehensive book.

Deep dive into the deep challenges of sentencing different types of child sex offenders

The Shreveport Times has this detailed five-part series, called Sinister Web, which looks into the modern digital world of child pornography. One article in the series examines case-processing and sentencing issues and challenges in this sad space under the headlined "Different outcomes for child rapists, child pornographers."  Here are excerpts:

Prosecutors face specific challenges when handling contact child sexual abuse cases, which often result in less prison time for those who sexually assault children than for those who possessed or distributed child pornography via the internet.

The conviction rate in U.S. child pornography possession cases is 97 percent, according to the Crimes Against Children Research Center and the Bureau of Justice Statistics. The conviction rate is much lower for offenders who commit hands-on sex crimes against children: 46 percent....

Experts cite multiple reasons for the disparities in sentencing and conviction rates.  One is that young children often are difficult witnesses because they include "fantastical" elements in their testimonies or they cannot give detailed, accurate information to investigators, said Dr. Sharon Cooper. Cooper, a forensic pediatrician who has provided expert testimony in more than 300 cases involving internet and child sexual abuse crimes, also said that forensic interviews of children may not show any physical evidence of abuse, as many children wait years to disclose.

But child sexual abuse images “speak for themselves,” said Lt. Chad Gremillion, a detective with the special victims unit of the Louisiana State Police. “You can’t deny what they are, what the focal point is, the abuse of a video where a four-year-old is being forced to provide oral sex to a male in a home,” Gremillion said.

The need for child victims of sexual abuse to testify at trial also is an issue.  Defense attorneys surveyed by The Times said they often encourage clients to plead guilty to reduced charges to avoid a trial and in exchange for less prison time. Prosecutors and victims’ families often accept those pleas to prevent further trauma to the children involved, said Caddo Parish Assistant District Attorney Monique Metoyer.  Many young children simply are not emotionally equipped to testify in an open courtroom, Metoyer said.... Another difficulty in prosecuting child sexual abuse cases is that victims often know their abusers.  

Another way some say the law is outdated: Those who upload child sexual abuse images to the internet, where they can be accessed by anyone in the world, can be charged under federal law with transporting materials across state lines — even though all they did was click a button on a home computer, said Katherine Gilmer, also a Shreveport defense attorney.  

As happened with Jesse Ward, the police officer who was caught after sharing a single image depicting child sexual abuse with an online undercover agent.  Law enforcement officers also found "more than ten electronic images" of child pornography on a computer hard drive in his home in McDuffie County, Georgia, according to court documents.  Ward initially was charged with three counts: possession, receipt and transportation of child pornography. Two of Ward's charges — receipt and possession of child pornography — were dropped upon the conviction of the third, more serious charge, transporting child pornography.  The transportation charge applied because he had uploaded the image to a network from which users in other states could download it — thus crossing state lines, a distinction that gained his crime federal status.  Ward was sentenced to 20 years.

But those who possess, and do not share, child sexual abuse images also often face stiffer sentences than those who commit contact crimes against children.  Melville resident Russell Guillory was sentenced to 10 years in prison in 2016 for possessing child pornography. The Lafayette man's collection included 75 videos and six images of child sexual abuse — including images depicting penetration of a 2-year-old child.

A judge, in imposing sentence, said that the materials were “especially heinous” and that the “very young children” in the materials “were not in a position of sufficient strength to resist the sexual abuse,” according to court documents. In a letter to the Times, written in April, Guillory said his sentence did not match his crime.  “Even good people make mistakes, but mistakes should never make a person,” Guillory wrote.  “We all have moments of weakness and make mistakes.”...

Unlike many contact sex crimes, child pornography possession and distribution charges carry mandatory minimum sentences, while judges in child sexual contact crimes have more discretion at sentencing. Child pornography crimes carry a mandatory five to 20 years of prison time....

Peter Flowers, a defense attorney in Shreveport, said the law has not been updated to reflect changes brought by the internet and digital photography. He voiced frustration with how the criminal justice system handles those convicted of child pornography offenses, especially because of what he termed “outdated” enhancements. “It used to be that if you amassed 500 pictures, you really had to work hard. Now, it’s just pressing a button. It’s not the same thing,” he said.

Flowers also said undercover stings — in which agents pose online as underage children and then arrest adults who initiate sexual conversations — catch only the “low-hanging fruit.”

“There are some serious child pornographers out in the deep, dark web, and that’s where the real danger is,” he said. “The real deal is much deeper.”

Regardless of prison time, all sex crimes in Louisiana require sex offender registration, which can provide a degree of closure for child victims and their families or destroy an offender’s life forever, depending on whom you talk to. Flowers said registration is a “very serious thing” and “not just about having a sign put in your yard or having a strip across your driver’s license.”  Offenders can’t pick their own children up from school.  Those who live within 1,000 feet of a school, church or a park must sell their homes and move, Flowers said....

Law enforcement officers, for the most part, expressed little sympathy for those convicted of possessing or distributing child pornography.... Corey Bourgeois, lead investigator at the Louisiana Attorney General’s cyber crime lab in Baton Rouge, said the state sentencing guidelines fit the crimes. “You know how you got that image?  Somebody was abused to get that image,” he said.  Metoyer said those who access child sexual abuse images chose to do so. “Even though we’re looking at images of children and you may not see the children in the room with you, these are real children,” Metoyer said.  “This has impacted them for the rest of their lives.”

"The portal itself is like a video game for criminal justice nerds."

The title of this post is a sentence that got me (too) excited about this new criminal justice resource called "Measure for Justice."  The sentence is found in this Marshall Project article, fully headlined "The New Tool That Could Revolutionize How We Measure Justice: A small nonprofit gathers criminal justice statistics, one county at a time." Here are excerpts from the article describing what is revolutionary about Measures for Justice:

The enormity of the country’s criminal justice system — 15,000 state and local courts, 18,000 local law enforcement agencies, more than two million prisoners — looks even more daunting when you consider how little we know about what is actually going on in there. Want to know who we prosecute and why? Good luck. Curious about how many people are charged with misdemeanors each year? Can’t tell you. How about how many people reoffend after prison? We don’t really know that, either.

In an age when everything is measured — when data determines the television we watch, the clothes we buy and the posts we see on Facebook — the justice system is a disturbing exception. Agencies exist in silos, and their data stays with them. Instead, we make policy based on anecdote, heavily filtered through a political lens.

This week the nonprofit Measures for Justice is launching an online tool meant to shine a high beam into these dark corners. It is gathering numbers from key criminal justice players — prosecutors offices, public defenders, courts, probation departments — in each of America’s more than 3,000 counties. Staffers clean the data, assemble it in an apples-to-apples format, use it to answer a standard set of basic questions, and make the results free and easy to access and understand.

It’s the kind of task you’d expect a federal agency like the Bureau of Justice Statistics, which has an average annual budget of $97 million, to take on. Instead, the 22 people at Measures for Justice’s Rochester, N.Y., offices are doing the work themselves on an annual budget of $4.6 million, donated mostly from foundations. So far they’ve tackled six states: Washington, Utah, Wisconsin, Pennsylvania, North Carolina and Florida, gathering most of the numbers one county at a time. Together, these make up 10 percent of the nation’s counties. The team chose those six states for their geographical diversity and — to ease the data gathering in the project’s early phases — because they had unified statewide court databases. The hope is to complete 15 more states by 2020, while updating the statistics from the first six states every two years.

“We’re giving people data they’ve never had access to before,” says Amy Bach, the founder and executive director of Measures for Justice. “We’re telling them stories about their communities and their counties that they’ve never heard before.” The project, which has as its motto “you can’t change what you can’t see,” centers on 32 “core measures”: yardsticks to determine how well local criminal justice systems are working. How often do people plead guilty without a lawyer? How often do prosecutors dismiss charges? How long do people have to wait for a court hearing? Users can also slice the answers to these questions in different ways, using “companion measures” such as race and political affiliation.

The portal itself is like a video game for criminal justice nerds. Users can compare counties, click on interactive maps and bar charts, and layer one data point upon another. The interface is clean and easy to use, if a little wonky. (The organization wants to present data in context, so each infographic is followed by a screen full of fine print and footnotes.) It’s meant for everyone — not just professors and policy wonks.

American Law Institute officially approves revised Model Penal Code: Sentencing provisions

This afternoon I received an email with this exciting news: "Members of the American Law Institute (ALI) voted at their 2017 Annual Meeting in Philadelphia on Wednesday, May 24th to approve the Proposed Final Draft of the Model Penal Code: Sentencing." Here is the context via the email of what I think is a very big deal after a very long process:

Under Reporter Kevin R. Reitz (Co-Director of the Robina Institute of Criminal Law and Criminal Justice and James Annenberg La Vea Land Grant Chair in Criminal Procedure Law at the University of Minnesota Law School), and Associate Reporter Cecelia M. Klingele (Associate Professor of Law, University of Wisconsin, Madison), the project reexamines the sentencing provisions of the 1962 Model Penal Code in light of the many changes in sentencing philosophy and practice that have taken place since its original publication.

The Model Penal Code: Sentencing project provides guidance on some of the most important issues that courts, corrections systems, and policymakers are facing today, including the general purposes of the sentencing system; rules governing sentence severity — including sentences of incarceration, community supervision, and economic penalties; the elimination of mandatory minimum penalties; mechanisms for combating racial and ethnic disparities in punishment; instruments of prison population control; victims’ rights in the sentencing process; the sentencing of juvenile offenders in adult courts; the creation of judicial powers to review many collateral consequences of conviction; and many issues having to do with judicial sentencing discretion, sentencing commissions, sentencing guidelines, and appellate sentence review.

“As a matter of recent history in this country, we’re at quite an important moment, where the conversation and political attitudes towards criminal justice policy and sentencing policy have been shifting dramatically at the state level,” said Professor Reitz.  “Despite current uncertainties in the federal government, legislators, policymakers, and lawmakers in state and local criminal justice systems are searching for workable solutions to problems of mass punitiveness that have grown since the 1970s.  This moment in history is particularly fortuitous for the Model Penal Code because we are arriving at the point of completion just as this new or changed nationwide debate is occurring. For lawmakers, judges, and corrections leaders, we can provide the tools they will need to create important and lasting sentencing reforms in their jurisdictions.”

"The Price of Prisons: Examining State Spending Trends, 2010 - 2015"

The title of this post is the title of this notable new Vera Institute of Justice report. Here is its introduction:

After decades of a stable rate of incarceration, the U.S. prison population experienced unprecedented growth from the early 1970s into the new millennium — with the number of people confined to state prisons increasing by more than 600 percent, reaching just over 1.4 million people by the end of 2009.The engine driving this growth was the enactment and implementation over time of a broad array of tough-on-crime policies, including the rapid and continuous expansion of the criminal code; the adoption of zero-tolerance policing tactics, particularly around minor street-level drug and quality-of-life offenses; and the proliferation of harsh sentencing and release policies aimed at keeping people in prison for longer periods of time (such as mandatory minimum sentences, truth-in-sentencing statutes, and habitual offender laws).

Unsurprisingly, this explosion in the use of incarceration had a direct financial influence on state budgets.  Creating and sustaining such a sprawling penal system has been expensive.  With more people under their care, state prison systems were compelled to build new prison facilities and expand existing ones.  To staff these new and expanded facilities, they also had to hire, train, and retain ever more employees.  In addition to expanding the state-operated prison system, some states also began to board out increasing numbers of people to county jails, privately-run facilities, and other states’ prison systems.

After hitting a high of 1.4 million people in 2009, however, the overall state prison population has since declined by 5 percent, or 77,000 people.  Lawmakers in nearly every state and from across the political spectrum — some prompted by the 2008 recession — have enacted new laws to reduce prison populations and spending, often guided by a now-large body of research supporting alternative, more effective responses to crime.7 In addition to fiscal pressures, the push for reform has been further bolstered by other factors, including low crime rates; shifting public opinion that now favors less incarceration and more rehabilitation; and dissatisfaction with past punitive policies that have failed to moderate persistently high recidivism rates among those sent to prison.

With these various political, institutional, and economic forces at play, most states have adopted a variety of different policies, including those that increase opportunities to divert people away from the traditional criminal justice process; expand the use of community-based sanctions; reduce the length and severity of prison sentences for certain offenses, including the rollback of mandatory penalties; increase opportunities for people to gain early release; and better provide enhanced reentry support for those leaving prison or jail.

In light of nearly a decade of broad-based criminal justice reform, this report seeks to determine where state prison spending stands today and how it has changed in recent years.  In particular, if a goal of recent reforms has been to make deep and lasting cuts to prison spending by reducing the prison population, have states who have witnessed the desired downward shift in prison size also witnessed it in spending?  To answer this question, researchers at the Vera Institute of Justice (Vera) developed a survey to measure changes in state prison population and expenditures between 2010 and 2015, and conducted follow-up interviews with state prison budget officials to better understand spending and population trends.

Vera’s study confirms that prisons remain an expensive enterprise, despite the success of many states — including Michigan, New Jersey, New York, and South Carolina —in simultaneously reducing their prison populations while achieving budget savings.  The first part of this report describes 2015 prison expenditures, identifying the main driver of corrections spending across responding states.  The second half of the report then discusses how changes in prison populations during the study period, and other trends largely outside the control of departments of corrections have affected prison spending. What is clear is that increased spending is not inevitable, since nearly half of states have cut their spending on prisons between 2010 and 2015.  But while one might expect that states with shrinking prison populations are uniformly spending less on prisons, or conversely that states with growing populations are spending more, Vera’s findings paint a more complicated picture.  Indeed, often there is no single reason that explains a rise or fall in spending, but a multitude of factors that push and pull expenditures in different directions.

After nearly 35 years, is Alabama finally going to carry out death sentence in case showcasing capital punishment's myriad difficulties?

As detailed in this New York Times piece, headlined "Alabama Inmate Hopes to Dodge Death for an Eighth Time," an execution scheduled for tomorrow in Alabama is notable for many reasons. Here is the Times accounting of some of these reasons:

Tommy Arthur, who was first sentenced to death in 1983, has long imagined what could be his end: time in a so-called death cell, a choice of a last meal, the final telephone calls and then a lethal injection.  That end could come Thursday, his eighth execution date in a case that has spanned the tenures of eight Alabama governors, starting with George Wallace.  If it does, it will conclude a legal odyssey that quietly became, for death penalty supporters and critics alike, a symbol of the troubles of the capital punishment system in the United States.

“It’s one of those cases in which nobody is happy,” said Robert Dunham, the executive director of the Death Penalty Information Center, a research group that has voiced concerns about the application of capital punishment.  “People who simply want the execution are unhappy because of the passage of time,” he said.  “People who oppose the death penalty are unhappy because they don’t want Tommy Arthur executed. People who want fairness are unhappy because, despite the length of time this case has been in the courts, the process has never been fair.”

In Alabama, where 58 people have been put to death since Mr. Arthur was sentenced for the 1982 murder of Troy Wicker, the most pressing issue these days seems to be how long it takes to carry out capital sentences.  If Mr. Arthur, 75, is executed on Thursday, his death will come one week after the Legislature gave final approval to a plan to reduce the length of appeals in capital cases....

Mr. Arthur confessed to one murder but was given a death sentence for a second that he insists he did not commit.  In regards to the latter, the state authorities contend that Mr. Wicker’s wife, Judy, hired Mr. Arthur, her lover, to carry out the killing so she could collect an insurance payout.  Ms. Wicker, who was found guilty and spent about a decade in prison before being released on parole, ultimately testified against Mr. Arthur, who was on work release from a life sentence for another killing when Mr. Wicker was murdered. (A woman who answered the phone at a number connected to Ms. Wicker hung up on a reporter.)

Near the end of a trial in the early 1990s, Mr. Arthur proclaimed his innocence but asked for a death sentence that he said would allow him greater opportunities for appeal. “I will not be executed,” Mr. Arthur said, according to a transcript of the proceedings.  “I’m totally positive of that. I wouldn’t dare ask you for it if I thought for a minute that I would be executed.”

He had already won two new trials by then. In the years that followed, Mr. Arthur’s case began to stand out to some scholars and lawyers because he so frequently staved off scheduled executions.  Mr. Arthur, whose lawyers have not raised intellectual disability or mental health claims, maintained his innocence and sought new forensic testing of evidence.  He argued his sentence was unconstitutional and that his claims of ineffective counsel were never fully considered.  He raised questions about Alabama’s execution methods, including a challenge to a lethal injection drug, midazolam.

Another prisoner once admitted to Mr. Wicker’s murder, but a judge found that Mr. Arthur and the inmate had “engaged in an attempt to defraud” the court with a false confession.  A defense lawyer for Mr. Arthur, Suhana S. Han, said that litigation had still not led to a full airing of the facts and rulings on the merits of Mr. Arthur’s claims of innocence.  Instead, Mr. Arthur’s supporters see a government increasingly desperate to put a man to death....

State officials regard Mr. Arthur as someone who will do anything to avoid his death sentence.  “I think there’s just an attitude by the other side to basically file anything that they can whether it has any merit or not,” said Clay Crenshaw, chief deputy attorney general and a former leader of his office’s capital litigation division. “I think he and his lawyers have successfully manipulated the system.”...

Alabama has moved to limit the risk of protracted cases in the future, and on Friday, Gov. Kay Ivey is scheduled to sign a measure requiring capital defendants to pursue their direct and post-conviction appeals simultaneously in the state’s courts. Under existing law, defendants have been allowed to bring a new appeal after an earlier effort failed.

The Alabama attorney general, Steven T. Marshall, said the proposed changes, similar to provisions already in force in at least four other states, would benefit people affected by capital crimes without trampling on constitutional rights.  “This is victim-driven for us,” Mr. Marshall said.  “We’ve heard the stories. We’ve seen the anguish. Victims do not sense, in a capital setting, that their voices are heard fully.  This is an opportunity for us as a state to be able to say that we’re going to allow defendants to have their fair opportunity to be heard in court for their claims to be evaluated, but we’re going to do it in a timely way.”

But Mr. Dunham of the Death Penalty Information Center, who noted that 60 percent of death row exonerations since 2012 involved cases at least 20 years old, suggested that quickening the pace to the death chamber would very likely lead to more executions of innocent people.  In 2015, Alabama released an innocent man, Anthony Ray Hinton, after he spent almost 30 years on death row; the state had spent years resisting demands that investigators conduct new tests on an alleged murder weapon.  “This is not about having more efficient judicial review,” Mr. Dunham said. “This is about expediting executions at the expense of fairness and accuracy.”

The Arthur case only lurked in the background of the legislative debate, but Mr. Marshall, a local prosecutor until February, acknowledged that Mr. Arthur’s history had long attracted attention.  “It’s the example of how the system has failed victims, and how he’s manipulated, through various filings, the court system to delay what should have occurred long ago,” Mr. Marshall said.

"Ambition and Fruition in Federal Criminal Law: A Case Study"

The title of this post is the title of this interesting and timely new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law — who ultimately gets prosecuted, and for what conduct — diverge, sometimes markedly, from lawmakers’ and enforcers’ aims?  This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders — large scale traffickers, violent dealers, and the worst recidivists — yet has imprisoned large numbers of offenders outside these categories.  In this respect, federal drug enforcement is a case study in the ambition/fruition divide.

Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise.  These pressures and incentives operate along three vectors: between the enforcers and the enforced; across and within federal enforcement institutions; and between federal and local enforcers.  Together, they create a system that stymies focus on the most culpable even as it makes apprehending them a principal aim.  This insight carries important implications for reform, both within drug enforcement and outside it.  Changing who, and how many, we prosecute requires attention not only to laws, but also the lower-visibility spaces in which enforcement patterns take root.  In the new political landscape, these lower-visibility spaces are federal criminal justice reform’s next frontier.

Colorado Supreme Court rules Graham and Miller do not limit aggregate term-of-years sentence

Yesterday I noted in this post a Minnesota Supreme Court ruling from last week that resisted extending the Supreme Court's recent limits on LWOP sentences for juvenile offenders to aggregate lengthy sentences for multiple crimes.  Perhaps exactly as I was writing that post, the Colorado Supreme Court handed down a similar ruling in Lucero v. Colorado, No. 13SC624 (Colo. May 22, 2017) (available here). Here is a key passage from the start of the majority opinion in Lucero:

[W]e hold that neither Graham nor Miller applies to an aggregate term-of-years sentence, which is the sentence Lucero challenges. In Graham, the U.S. Supreme Court held unconstitutional a life without parole sentence imposed on a juvenile for a single nonhomicide offense. 560 U.S. at 57, 82. In Miller, the Court held that a sentence of “mandatory life without parole for those under the age of 18 at the time of their crimes” violates the Eighth Amendment. 132 S. Ct. at 2460. Life without parole is a specific sentence, distinct from sentences to terms of years. Lucero was not sentenced to life without parole.  Rather, he received multiple term-of-years sentences for multiple convictions.  Therefore, Graham and Miller are inapplicable to, and thus do not invalidate, Lucero’s aggregate sentence.

The concurring opinion in Lucero notes that a significant number of state supreme courts and other courts have held that the Eighth Amendment rule articulated in Graham "extends to cases in which a juvenile offender receives the functional equivalent of an LWOP sentence." At some point (though I have no idea when), the U.S Supreme Court will have to clarify whether and how Graham nor Miller limit the imposition of sentences other than LWOP.

"The Effects of Racial Profiling, Taste-Based Discrimination, and Enforcer Liability on Crime"

The title of this post is the title of this new paper by Murat Mungan now available via SSRN.  Here is the abstract:

The literature contains ambiguous findings as to whether statistical discrimination, e.g. in the form of racial profiling, causes a reduction in deterrence.  These analyses, however, assume that enforcers' incentives are exogenously fixed.  This article demonstrates that when the costs and benefits faced by officers in enforcing the law are endogenously determined, statistical discrimination as well as taste-based discrimination lead to an increase in criminal activity.  Moreover, the negative effects of statistical discrimination on deterrence are more persistent than similar effects due to taste-based discrimination.

This suggests, contrary to the impression created by the existing literature, that statistical discrimination is not only harmful, but, may be even more detrimental than taste-based discrimination.  Thus, for purposes of maximizing deterrence, the recent focus in empirical research on identifying taste-based discrimination as opposed to statistical discrimination may be misplaced.  A superior approach may be to identify whether any type of racial discrimination takes place in the enforcement of laws, and to provide enforcers with incentives to minimize the impact of their discriminatory behavior.

"How Far Can Jeff Sessions Take His Crime War?"

The question in the title of this post is the headline of this astute New Republic piece by David Dagan that provides lots of useful context, old and new, for the work and rhetoric coming from AG Jeff Sessions and Prez Donald Trump.  Here are some extended excerpts (with emphasis in the original):

In fact, the last two years have seen worrying increases in the nation’s violent-crime rate, and some American cities have developed a full-blown homicide crisis.  That is a serious problem anybody who cares about criminal justice should be watching closely.  But it does not justify the Sessions-Trump imagery of marauding gangsters terrorizing an entire nation.  Overall, the United States today remains a much safer country than it was 30 years ago.

So the attorney general of 2017 faces a dramatically different climate than the unknown Alabama prosecutor of 1982. Even conservatives are now leading criminal-justice-reform efforts in several red states.  But reformers must keep their guard up.  Because for Sessions, crime is an inherently polarizing issue — and that’s the best news for Republicans who want to crack down.  “We should relish the fact that there will be opposition,” Sessions wrote back in 1982. “We want opposition because it defines who we are and who they are. The bigger the confrontation, the clearer the definition.”...

Sentences will get longer as a result of the May 10 charging memorandum.  But the order may have a greater effect that isn’t so obvious: It may result in not only longer sentences, but more cases being brought, period.  In the last five years of the Obama administration, the number of defendants charged in federal cases plummeted from about 103,000 to about 77,500, the lowest number since 1998.  A number of factors drove that decline, including a hiring freeze that reduced DOJ’s bandwidth.  But John Walsh, who served as U.S. Attorney for Colorado in the Obama administration, says Holder’s policy requiring prosecutors to justify the use of mandatory minimum sentences was also a contributing factor: The rule forced prosecutors to hone in on the worst offenders.  That is now history....

Fortunately, the federal government has limited influence over the calamity of mass incarceration.  The feds do operate the nation’s largest prison system, but that still accounts for only 10.5 percent of people incarcerated in the U.S.  Otherwise, it’s up to the states (with roughly 1.2 million prisoners) and counties (roughly 600,000 jail inmates.)

The only way that Sessions and Trump can really change a political culture that has moved away from the tough-on-crime consensus of the 1980s and 1990s is to lead a public law and order crusade.  The campaign started it, but there’s a long way to go — and a lot of fear-mongering to do — to shift the tide.  Democrats now largely condemn the prison policies they once went along with.  Republicans are more circumspect, but the conservative movement for prison reform has achieved impressive incarceration reductions in some bright-red states.

Despite fears that state and local politicians would be scared off by the tough talk coming out of Washington, the momentum for reform has continued through the beginning of the Trump presidency. “So far, we haven’t seen much of an impact at all,” said Adam Gelb, who runs a unit of the Pew Charitable Trusts that advises states on criminal-justice reform.  “States have built up a strong head of steam, with broad support across the political spectrum for policies that work better and cost less.”

The kinds of states you’d imagine getting behind Sessions’s new “law and order” campaign are actually among those getting behind progressive reforms.  Louisiana is on track to pass a plan that could cut its prison population 10 percent over a decade — probably not enough to shed its status as the nation’s leading per-capita jailer, but significant progress nonetheless.  Utah approved a big juvenile-justice reform in April.  The same month, North Dakota legislators voted to favor probation over prison for low-level felonies, among other changes.  Most surprising, Alabama is poised to restore voting rights for thousands of felons.

The America of 2017 is much less hospitable to a crime war than the America of 1982.  The fact that, despite recent increases, crime remains way down makes it harder to stir up panic than it was back in the 1980s and 1990s.  The rural dimension of the opioid epidemic has contributed to a new understanding of drugs as a problem of public health. Years of activism and aggressive reporting on the ravages of mass incarceration are also beginning to register in the public conscience, especially among millennials to whom the excesses of the past look simply bizarre....

But as Sessions realized years ago, the mix of race, drugs, and crime is a powerful force in American politics.  The fact that Sessions’s sentencing memo was met with deafening silence from Republican members of Congress suggests that spines on Capitol Hill remain as gelatinous on this issue as any other involving the administration.  The onus is not entirely on conservatives, though.  Liberals should do more than simply bat down Sessions’s inaccurate portrayal of the whole country as being in the grips of a violent-crime meltdown.  They should emphasize that the recent uptick in violence is worrying, that some American cities are indeed having a crisis-level problem — and that Sessions has absolutely no idea what to do about this.

We know much more than we used to about fighting crime.  Prisons surely play a role, but we’ve long ago reached the point of diminishing returns from warehousing people.  If Donald Trump cares about Chicago as much as he tweets about it, liberals should argue, then rather than blowing the city off, he would deploy federal money to support policing and violence-prevention programs that work, there and in other high-homicide towns.

If reformers play their cards right, Sessions may ultimately find that the crime war whose terms he understood so well as a young man has been redefined in ways he can no longer grasp.

Tales of marijuana reform as sentencing reform from California after Prop 64

This recent AP article, headlined "California’s legal pot law helps reduce, erase convictions," serves as a reminder and reinforcement of my tendency to look at marijuana reform as often a kind of sentencing reform. The AP article reports on some interesting case-processing realities in the wake of new provisions in California law created by the state's 2016 marijuana legalization initiative, Prop 64. Here are some details:

Jay Schlauch’s conviction for peddling pot haunted him for nearly a quarter century. The felony prevented him from landing jobs, gave his wife doubts about tying the knot and cast a shadow over his typically sunny outlook on life.

So when an opportunity arose to reduce his record to a misdemeanor under the voter-approved law that legalized recreational marijuana last year, Schlauch wasted little time getting to court. “Why should I be lumped in with, you know, murderers and rapists and people who really deserve to get a felony?” he asked.

This lesser-known provision of Proposition 64 allows some convicts to wipe their rap sheets clean and offers hope for people with past convictions who are seeking work or loans. Past crimes can also pose a deportation threat for some convicts.

It’s hard to say how many people have benefited, but more than 2,500 requests were filed to reduce convictions or sentences, according to partial state figures reported through March. The figures do not yet include data from more than half of counties from the first quarter of the year. While the state does not tally the outcomes of those requests, prosecutors said they have not fought most petitions.

Marijuana legalization advocates, such as the Drug Policy Alliance, have held free legal clinics to help convicts get their records changed. Lawyers who specialize in pot defense have noted a steady flow of interest from new and former clients.

Attorney Bruce Margolin said he got two to three cases a week, many of them decades old.... Since the passage of Proposition 64, he’s gotten convicts out of prison, spared others time behind bars and successfully knocked felonies down to misdemeanors.

But he’s also encountered a lot of confusion about the law that went into effect immediately in November. “They were totally unprepared,” he said of judges and prosecutors in courts he’s appeared in throughout the state. “It’s amazing. You would have thought they should have had seminars to get them up to speed so we don’t have to go through the process of arguing things that are obvious, but we’re still getting that.”

That has not been the case in San Diego, where prosecutors watched polls trending in favor of marijuana legalization and moved proactively to prevent chaos, said Rachel Solov, chief of the collaborative courts division of the district attorney’s office. They learned lessons from the 2014 passage of Proposition 47, which reduced several nonviolent felonies to misdemeanors.

Prosecutors in the county researched which convicts serving time or probation were eligible for sentence reductions and notified the public defender’s office so they could quickly get into court. Many were freed immediately, Solov said. “Whether we agree with the law or not, our job is to enforce it,” Solov said. “It’s the right thing to do. If someone’s in custody and they shouldn’t be in custody anymore, we have an obligation to address that.”

San Diego County led the state with the most number of petitions reported in the first two months after the law was passed. It has reduced sentences or convictions in nearly 400 cases, Solov said.

In Mendocino County, where pot farming is big business and violent crimes are often tied to the crop, District Attorney C. David Eyster said he fights any case not eligible for a reduction, such as applicants with a major felony in their past, a sex offense or two previous convictions for the same crime.

Minnesota Supreme Court upholds consecutive sentences adding up to 90 years before parole eligibility for juve killer of three

Via this new commentary criticizing the opinion, I just learned of this notable ruling handed down last week by the Minnesota Supreme Court concerning the application of the Supreme Court's Eighth Amendment rulings in Miller and Montgomery. The commentary provides a helpful summary of the ruling and the concerns it might engender for those eager for Miller to have a broad reach:

In 2010, at the age of 16, Mahdi Hassan Ali committed a terrible crime in Minneapolis.  During the course of a store robbery, Ali shot and killed three people.  He was tried as an adult, and a jury found him guilty of two counts of felony murder and one count of first-degree murder.  On the felony murder convictions, the Hennepin County District Court sentenced Ali to two consecutive life sentences with the possibility of release on each after 30 years; on the first-degree murder conviction, Ali was sentenced to mandatory life imprisonment without the possibility of release....

In light of Miller [decided in 2012], the Minnesota Supreme Court overturned Ali’s sentence of mandatory life imprisonment and remanded the case back to the Hennepin County District Court for a new sentence.  On Jan. 6, 2016, Ali was sentenced to three consecutive sentences of life imprisonment with the possibility of release on each after 30 years. The sentences render Ali ineligible for release until he is 106 years old.

Shortly after the district court’s decision, the U.S. Supreme Court issued a new opinion in Montgomery vs. Louisiana, which offered fresh insight into the Miller ruling. Montgomery explained that the court intended Miller to bar all sentences of life without parole, not just mandatory ones, for any but the rarest of juvenile offenders who were permanently incorrigible and unable ever to be reformed....

Notwithstanding these decisions, the Minnesota Supreme Court filed an opinion last week upholding Ali’s sentences of three consecutive life terms.  In an opinion authored by the newly elected Justice Natalie Hudson, the Minnesota court decided that Miller and Montgomery apply only to single sentences of life without parole, refusing to extend the principles articulated in Miller and Montgomery to consecutive sentences that have the same effect.

Rather than requiring a special hearing to determine Ali’s prospects for reform, as Montgomery requires for sentences of life imprisonment without parole, the court decided that consecutive life sentences require no such hearing, even when they will likely result in a juvenile offender’s being imprisoned until death.

Last week’s opinion from the Minnesota Supreme Court will offer state prosecutors a new tool when seeking to imprison children for the duration of their natural lives.  For juvenile offenders convicted of serious offenses, prosecutors will seek lengthy consecutive sentences rather than seeking sentences of life imprisonment without parole.  Under the opinion, this tack will obviate the need for a hearing to determine whether the juvenile is amenable to reform, regardless of the length of the child’s sentence.

Like the author of this commentary, I am troubled whenever it seems courts are embracing formal rather than functional considerations to limit the reach of the Eighth Amendment juvenile sentencing proportionality rules set forth in Graham and Miller and Montgomery.  Still, for reasons the majority opinion in this Ali case stresses, I can understand why many courts have in various settings given constitutional significance in Eighth Amendment analysis to the fact that a defendant has been sentenced to an extreme term for multiple serious crimes rather than just one. Notably, the US Supreme Court has never formally addressed just how multiple-offense, consecutive sentencing should be analyzed under the Eighth Amendment, and this Minnesota case serves to highlight how this is one of a number of Graham and Miller and Montgomery application issues challenging lower courts nationwide.

"Sentencing Synthetic Cannabinoid Offenders: 'No Cognizable Basis'"

The title of this post is the title of this short notable piece by Brad Gershel now available via SSRN. Here is the abstract:

Application of the United States Sentencing Commission Guidelines (“Guidelines”) to smokable synthetic cannabinoids (“SSC”) produces distinct but familiar inequities in the criminal justice system.  Calling to mind the crack-to-cocaine disparity that belied the rights of countless defendants, the federal government has yet to rectify a Guidelines rule that was promulgated without scientific basis or empirical support.  As prosecutions for SSC accelerate — and in the absence of swift and meaningful reform — federal courts will continue to sentence defendants via a base-offense range that was never justified.

California struggles over whether all sex offenders can be excluded from Prop 57 parole reforms aimed at non-violent offenders

This new Los Angeles Times article, headlined "Debate over sex offenders moves to court as California undertakes prison parole overhaul," provides an updated on the legal and policy issues surrounding sex offenders in the wake of a California ballot initiative intended to help non-violent offenders get an earlier chance for parole. Here are excerpts:

Los Angeles-based nonprofit is claiming California prison officials have undermined last fall’s ballot measure to overhaul the state’s parole process by excluding sex offenders from consideration for early release. The Alliance for Constitutional Sex Offense Laws, which advocates for the rights of those convicted of sex crimes and their families, says the exemption — written into newly released guidelines to implement Proposition 57 — “impermissibly restricts and impairs the scope” of the initiative.

Those regulations were released in March and won initial approval from state regulators a month later. But the original ballot measure did not exclude inmates convicted of sex crimes from the chance of getting an earlier hearing before the state parole board.

The group filed the lawsuit in late April against the state Department of Corrections and Rehabilitation and its director, Scott Kernan. It argues the new rules are unconstitutional and it asks a judge to order corrections officials to withdraw and repeal them, according to the complaint filed in Sacramento County.

“We want the benefits of Proposition 57 to be provided to people who have been convicted of ‘non-violent’ sex offenses,” said attorney Janice Bellucci, who is representing the alliance and an inmate who brought the case forward. “It is a basic rule of law that regulations cannot be broader than the law that they are implementing.”...

Debate over the treatment of sex offenders under Proposition 57 has simmered since last fall’s campaign season. But at that point, the outcry came from law enforcement officials and prosecutors who argued they did not want to see the ballot measure’s benefits extended to rapists and child molesters.

The sweeping initiative, approved by 65% of voters, gave new power to the State Board of Parole Hearings to grant early release to prisoners whose primary sentences are for crimes not designated as “violent” under California law. It also provided new ways for all inmates to earn time credits toward their sentences for good behavior and for enrolling in certain career, rehabilitation and education programs.

Opponents of Proposition 57 warned that the list of crimes under the violent felony penal code was short and porous, inspiring efforts in the Legislature this session to expand the definition of what constitutes a violent crime under state law. In his January budget proposal, Gov. Jerry Brown attempted to address those concerns, directing the state corrections department to exclude all sex offenders from early parole consideration. The department’s new parole guidelines are expected to receive final approval in the fall after a public comment period. Changes to how inmates can earn credits, which can help reduce their sentences, are already underway, while the new parole eligibility requirements won’t take effect until July.

But the advocacy group that filed the lawsuit wants the state agency to revise its rules. It contends that there was plenty of public debate over sex offenders during the Proposition 57 campaign — and that even then, voters passed the measure.... The lawsuit alleges the new exclusion applies to a whole class of nonviolent offenders, including people charged with crimes where there was no sexual contact with a victim.

As of Dec. 31, the number of inmates in California prisons who would have to register as sex offenders upon release stood at 22,455, less than 20% of the population housed at state prisons. Nearly 18,000 were designated as “violent” offenders, while more than 4,521 were considered “nonviolent,” according to state corrections officials.

Bellucci said those cases could include a diverse group of offenders. In theory, she said, the new regulations could unfairly penalize an 18-year-old convicted of public indecency for streaking in high school, or a 16-year-old sentenced for child pornography after distributing nude photos of herself. “Anybody who has been convicted of a violent offense, like rape, Prop. 57 doesn’t apply to them,” Bellucci said. “We are talking about nonviolent offenses, which includes these non-contact offenses.”

I would be shocked to learn that California has any teenage streakers or sexters imprisoned for lengthy periods now hoping to get early parole. I suspect the more realistic example of the sex offender who might claim to be non-violent and seek early parole are California variations on offenders like Jared Fogle or Anthony Weiner, i.e., older men involved with child pornography or perhaps other kinds of sexual activity with underage persons.  It will be interesting to see if the California courts allow of prohibit these kinds of offenders from being excluded from the reforms of Prop 57.

"Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses"

The title of this post is the title of this notable paper authored by Neil Sobol and now available via SSRN.  Here is the abstract:

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem.  On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees.  The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in jail merely because they are unable to afford bail.

Criminal justice debt, also known as legal financial obligations (LFOs), impacts not only those incarcerated but also millions of others who receive economic sanctions for low-level offenses, including misdemeanors and ordinance violations. LFOs, which include bail, fines, and fees, are imposed at every stage in the justice process, including pre-conviction, sentencing, incarceration, and post-release supervision.

For those who are unable to pay criminal justice debt, “poverty penalties” are often added in the form of charges for interest, payment plans, late payments, and collection.  As incarceration rates and local budgetary concerns have increased, so too has the imposition of LFOs. Moreover, while authorities are trying to reduce incarceration, criminal justice debt may become an even greater concern, as one popular alternative is decriminalization and the imposition of monetary charges.

Often the financial charges are unrelated to the traditional notions of punishment or protection of public safety and instead, reflect a desire to maximize revenue collection. Many municipalities outsource services to private probation companies and collectors, which are often unsupervised and use collection procedures not authorized for private parties.  Moreover, new technologies allow for additional collection abuses.

To date, states and municipalities have been ineffective in preventing abuses associated with criminal justice debt. Relying on the approach used for consumer debt collection, I propose a federal solution.  The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) provide the foundation for a federal framework for addressing problems with the collection of consumer debts. I contend that the justifications that supported the federal statutory and administrative solution for consumer debts are at least as significant, if not greater, for a similar framework to combat abusive criminal justice debt practices.

Not only do individuals with criminal justice debt encounter the same abuses and consequences that consumer debtors face — including harassment, negative credit reports, and the adverse impact on financing and employment prospects — but they also face denial of welfare benefits, suspension of driver’s’ licenses, arrest, and incarceration.  In practice, the imposition of criminal justice debt reflects actual discrimination and creates distrust in the system. Accordingly, I advocate the adoption of a federal act and the use of the DOJ to coordinate enforcement and outreach activities to attack abuses in the collection of criminal justice debt.

Reactions to Sessions Memo on DOJ charging/sentencing policies keep on coming

I highlighted in this post and this post some of the early reactions to the new charging and sentencing memorandum released earlier this month by Attorney General Jeff Sessions (basics here). Reactions in various forms and formats just keep on coming, so here I will highlight a few more from various authors and outlets that struck me as worth noting:

From CNN here, "State AGs to Sessions: Rescind criminal charging guidance"

From Crime & Consequences here, "Restoration of Honesty: Jeff Sessions' Charging Instructions"

From The Crime Report here, "Memo to Sessions: Why Treatment for Drug Addiction Makes More Sense Than Prison"

From The Federalist here, "Sessions Has Neither The Authority Nor The Evidence To Pursue A New Drug War"

From Law360 here, "Sessions Memo Could Create Friction In Plea Negotiations"

From the New York Daily News here, "The true toughness Jeff Sessions must show"

From the New York Law Journal here, "The Sessions Memo: Back to the Past?"

Prior recent related posts: 

• AG Sessions issues new tougher charging and sentencing guidelines to federal prosecutors
• Misreporting of the Sessions Memo and the challenge of nuance in prosecutorial charging policies
• Some notable first-cut reactions to the Sessions Memo
• Some more notable reactions to the Sessions Memo
• The challenge of taking stock of impact of Holder Memos to gauge possible impact of new Sessions Memo
• Terrific effort to sort out "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?"
• Highlighting how the Sessions Memo may have particular impact for drug trafficking cases in certain districts

UPDATE: A helpful reader pointed out this Washington Post commentary from a former US Attorney headlined "Jeff Sessions to federal prosecutors: I don’t trust you." It starts this way:

Last week Attorney General Jeff Sessions announced policy changes directing federal prosecutors to charge people suspected of crime with the “most serious, readily provable offense” available in every federal case.  In doing so, he promised that prosecutors would be “un-handcuffed and not micromanaged from Washington.”

That justification is laughable.  In actuality, the announcement demonstrates a stunning lack of faith in the decisions of line-level prosecutors.  It imposes — rather than removes — the handcuffs for prosecutors, returning us to the policy of the 1990s and 2000s, when incarceration and corrections spending spiked without a measurable impact on drug use or public safety.