Sentencing Law and Policy

An object lesson in what not to do when you find a big bale of cocaine in the ocean

A helpful reader flagged this somewhat amusing though still very serious sentencing tale of a not-so-old man and the sea.   The headline of the article provides the essentials: "Fla. fisherman who hauled in $500,000 worth of cocaine faces life in prison."  And here are some of the particulars:

Cocaine, more so than any other narcotic, is the drug most frequently interdicted by the U.S. Coast Guard. In late 2016, the Coast Guard announced it had seized about $2 billion worth of cocaine during a 10-week operation that began in October. (At 26.5 tons, the weight of the seized stimulant rivaled the bulk of four African bull elephants.) Water is the route of choice for drug runners. Some 95 percent of cocaine smuggling operations, a Coast Guard rear admiral told the BBC in 2015, involves traveling via boat.

In the Gulf Coast, a container vessel or freighter may serve as a mother ship, which offloads the drug to sailboats, go-fast cigarette boats, fishing boats and other smaller boats. “Fishermen are great mules because they know the waters and they don’t draw attention,” wrote journalist Erik Vance at Slate in 2013. “And if you have to chuck your haul overboard to avoid the military, other fishermen can dive to retrieve it.” And if the divers sent after the contraband cannot find it, perhaps someone else will.

In 2016, that someone else was Thomas Zachary Breeding. Breeding, 32, was a longline fisherman from Panama City, Fla. The fisherman had accumulated a few run-ins with the law, including drug and gun convictions, the Panama City News Herald reported. In 2012, a federal grand jury indicted Breeding for giving false statements to the National Oceanic and Atmospheric Administration. Prosecutors also alleged he obstructed the agency’s investigation into why the fisherman had entered grouper spawning grounds, closed to fishing; Breeding, they argued, deliberately sought to catch a valuable species of fish called gag grouper. He was sentenced to 15 months in prison.

But, until Breeding found the 45-pound cocaine bale, the fisherman said that he had kept a previously clean slate when it came to the narcotics trade. “I do not know where the drugs came from and haven’t ever been involved in the drug trade before. I was just a hard-working, young commercial fisherman,” Breeding wrote recently in a letter to the News Herald, penned from Florida’s Washington County Jail. “I was working as a long line boat captain out of Panama City when I found a package containing 20 kilos of cocaine.”

It was a what-if scenario of the type that fuels Florida crime potboilers: A fisherman finds a package of drugs valued at a huge street sum, and makes a decision. In Breeding’s case, he was 50 miles south of Panama City when he found between $500,000 and $650,000 of cocaine floating in the gulf. As impressive as the sum was, in the annals of washed-ashore cocaine — white lobster, as villagers along the Central American coast euphemize it — its street value was not a record. In 2013, five fishermen found $2.5 million of cocaine in the waters off north Florida. A metal tube filled with an estimated $5 million worth of cocaine washed up in Ireland last summer.

But it was an object lesson in what not to do. In December, Mark “The Shark” Quartiano, a celebrity Miami fisherman, found a kilogram brick of cocaine. He promptly alerted the authorities. Breeding did not. He instead handed over the 45-pound haul to four other people, on the condition they would sell the cocaine and pay a cut to Breeding. All five were caught in the summer — Breeding, a felon, had a firearm in his car when he was arrested — and faced conspiracy charges for the distribution of a controlled substance. Breeding pleaded guilty Wednesday, the News Herald reported, as did the other members of the network; they are awaiting a Feb. 16 sentencing. Breeding may be punished with up to life imprisonment and a fine in the millions of dollars.

"Reducing Violent Crime in American Cities: An Opportunity to Lead"

The title of this post is the title of a notable new report produced by The Police Foundation and the Major Cities Chiefs Association, which is summarized and can be accessed via this web posting.  Here is summary via the posting:

While national crime statistics remain historically low, violent crime—particularly homicides and shootings—is rising in many major cities. The Police Foundation and the Major Cities Chiefs Association (MCCA), with generous support from the Joyce Foundation, are jointly releasing a report entitled, Reducing Violent Crime in American Cities: An Opportunity to Lead. The report provides more than 25 recommendations for the new Administration and Congress, to strengthen federal-local partnerships and support local efforts to reduce violent crime.

According to FBI data, the country’s largest cities experienced a 10% increase in homicide and non-negligent murder from 2014 to 2015, and the second largest group of cities saw a 20% surge. More recent data from MCCA suggest these surges in large cities remains steady, with 61 agencies reporting a 10% increase in homicide from 2015 to 2016, and 1400 additional non-fatal shootings over 2015, another important indicator of violent crime. Law enforcement agencies in many of these cities are also reporting substantial increases in non-fatal shootings, another important indicator of violent crime. While the federal government has provided important assistance in recent years, budget and personnel reductions coupled with competing federal priorities leave some local law enforcement agencies without the fortified partnerships they need to effectively combat violent crime. Law enforcement leaders call for a federal agenda that prioritizes violent crime from both a budgetary and policy standpoint, and that addresses problems with evidence-based solutions.

“Major cities aren’t asking for temporary surges of hundreds more federal agents or responses that take months and years to have a sustained impact. They want tools and smart resources like ballistics imaging, gun tracing, and flexible grants,” said Chief Tom Manger, President of the Major Cities Chiefs Association (MCCA). Police Foundation President Jim Bueermann further emphasizes that “federal, state and local law enforcement need strong partnerships and smart, evidence-based, locally-tailored strategies to reverse trends in the number of shootings in many major cities.”

The recommendations in this report create an overarching strategy to address violence by prioritizing violent crime, holding federal partners accountable for local impacts, and enabling the kinds of partnerships that will create lasting solutions. The following items form the basis of the report’s recommendations: analysis of literature on effective violence reduction strategies; in-depth analysis of federal agency programs, budgets, priorities, authorities, and performance; and, survey data and input from local law enforcement executives.

Texas completes its second execution of 2017

As reported in this AP piece, a "man convicted of a fatal robbery at a Dallas-area Subway shop just weeks after he was fired from his job there was executed Thursday night." Here are a few more details:

Terry Edwards, 43, received lethal injection for the $3,000 holdup at a Subway restaurant where two employees were shot to death in 2002. Asked by a warden if he had a final statement, Edwards replied: "I'm at peace with God. I hope y'all find peace in this." As the lethal dose of pentobarbital was administered, he began snoring quickly. Within about 30 seconds, all movement stopped.

He was pronounced dead at 10:17 p.m. CST, 23 minutes after the sedative began flowing into his arms. Edwards never looked at five relatives of the two murder victims who stood a few feet from him, looking through a window.

Edwards' execution, the second this year in Texas and the third nationally, was delayed about four hours until the U.S. Supreme Court rejected multiple last-day appeals that sought to halt his punishment. Lawyers for Edwards wanted to reopen his case to investigate claims that a court-appointed lawyer earlier in the appeals process provided deficient help by abandoning him. Attorneys also contended Dallas County prosecutors at his trial incorrectly portrayed Edwards as the shooter, that he was innocent of the shootings, that prosecutors manipulated evidence and testimony at his trial and improperly excluded black people from the jury. Edwards was black....

Mickell Goodwin, 26, and Tommy Walker, 34, were each shot in the head in the holdup. Walker, the store manager, had seven children and stepchildren. Goodwin was mother of two daughters. No one else was inside the store. "Tonight is a time for us to remember Mickey and Tommy," their families said in a statement following the execution. "Though this chapter of our journey is now over, we will always feel the loss of them in our lives."...

Edwards was on parole at the time of the shootings. He'd been released in October 1999 after prison time for car theft and possession with intent to deliver cocaine. The second man involved, Edwards' cousin, Kirk Edwards, turned himself in to police a day after the shootings. He had a previous criminal record for burglary and theft and now is serving 25 years for aggravated robbery for the sandwich shop case.

"Strict Liability's Criminogenic Effect"

The title of this post is the title of this new paper authored by Paul Robinson now available via SSRN. Here is the abstract:

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil.  And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous.  Similar arguments support the use of criminal liability for regulatory offenses.  Greater punishment rates suggest greater compliance.

But this analysis fails to appreciate the crime-control costs of strict liability.  By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control.  More importantly, the system's lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms.  Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law's reputation for being just, which means avoiding the use of strict liability. 

Federal magistrate judge rules Ohio's new 3-drug lethal injection protocol is unconstitutional and blocks coming scheduled executions

As reported in this local piece, a "federal magistrate judge on Thursday barred the use of a three-drug cocktail the state of Ohio planned to use to execute death-row inmates, declaring the method the state prefers to be unconstitutional." Here is more about the opinion:

Magistrate Judge David Merz of Dayton also halted the executions of three inmates scheduled to be executed in the coming months, two of which came from Northeast Ohio. Merz, in his 119-page order, ruled that there were enough problems with all three of the drugs Ohio intends to use in its execution protocol to warrant this disallowance. Two states, Arizona and Florida, have discontinued the use of one of the drugs, named midazolam.

"The Court concludes that use of midazolam as the first drug in Ohio's present three-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm' as required by (Supreme Court precedent)," Merz wrote.

The ruling is a success for the inmates challenging Ohio's execution protocols and anti-death-penalty advocates who have sought to chip away at the state's ability to execute people since executions resumed in 1999. It may be short lived, though, as the ruling is all but guaranteed to be appealed. A spokeswoman for Ohio Attorney General Mike DeWine's office said the office is reviewing the decision.

Ohio hasn't executed anyone since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. McGuire was administered a cocktail that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.

State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October. The challenge that led to Merz's ruling Thursday was also borne out of McGuire's execution. During a hearing earlier this month, Merz heard testimony on all three drugs. His ruling Thursday said that the state cannot use any cocktail that contained potassium chloride or rocuronium bromide, a paralytic agent, since the state told a court in a previous proceeding that it would not use such drugs during future executions....

Ohio has had trouble in recent years getting drugs to use for lethal injections in part because pharmaceutical companies don't want their products used for killing people. In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. That law was challenged, though courts have declined to declare the law unconstitutional.

The full 199-page opinion In re Ohio Execution Protocol Litigation, No. 2:11-cv-1016 (S.D. Ohio Jan 26, 2017), is available at this link.  I have an inkling that the state of Ohio may get around to appealing the decision even before I get around to reading it in full because the state likely is eager to preserve the scheduled Feb 15 execution date for child murderer Ronald Phillips.

Michigan Supreme Court to take up intersection of Apprendi and Miller for juve LWOP sentencing

This local article reports on the notable decision of the top court in Michigan to consider the procedures for deciding whether a juvenile murderer may be sentencing to life without parole.  Here is the backstory:

The Michigan Supreme Court will hear arguments on whether a jury or a judge can decided to send youth offenders to prison for life.  The court issued a decision to hear the arguments in the Tia Skinner case Tuesday, the latest decision that could impact youth-lifers across the state.

In August 2015, the Michigan Court of Appeals ruled the Yale woman convicted in the 2010 killing of her father and attempted murder of her mother should be sentenced by a jury after a hearing to prove beyond a reasonable doubt the killing reflects "irreparable corruption."

St. Clair County Prosecutor Mike Wendling challenged that ruling and asked the Supreme Court to intervene. He said the defense's argument is that a life sentence to a child is the same as a death penalty, which requires a jury to decide. "It's not the same as being put to death," Wendling said.

During the same period, a different panel from the court of appeals ruled a judge should be the one to decide on a life sentence in a juvenile case out of Genesee County. Because of the conflicting rulings, a special conflict panel was assembled by the court of appeals, and in July it ruled judges should handle the re-sentencings.

The legalities of how to re-sentence youth offenders follows the 2012 U.S. Supreme Court ruling that automatic life sentences to those under 18 constituted cruel and unusual punishment. That decision impacts four St. Clair County cases — Skinner, Raymond Carp, Michael Hills and Jimmy Porter....

If a jury is required to set the sentence, Wendling said his office will have to decide if the Skinner, Porter and Hills cases can be successfully recreated for a jury. He said victims and family will also weigh on that decision.

As the title of this post suggests, I think it is more the Apprendi line of jurisprudence than capital jurisprudence that really serves as a basis for contending a jury must make the key finding to permit a juve LWOP sentence. For complicated reasons, I do not think Apprendi must or even should be interpreted to impact Miller-required re-sentencings, but I can understand why some may be inclined to apply Apprendi and Miller this way.

"Pro-Con: Death Penalty Exemption For Severly Mentally Ill"

The title of this post is the label given by a Cleveland paper to these two dueling commentaries addressing the recommendation from the Ohio Death Penalty Task Force (on which I had the honor of serving) to create a statutory exemption from capital punishment for people with serious mental illnesses. Here are the headlines and links to the commentaries:

• "Ohio should reform death penalty, not rush back to executions" by Mike Brickner (who is senior policy director of the American Civil Liberties Union of Ohio).

• "Legal safeguards on death penalty for the mentally ill are already sufficient" by John Murphy (who is executive director of the Ohio Prosecuting Attorneys Association).

And then there were two: Prez Trump's SCOTUS pick now reportedly between Circuit Judges Hardiman and Gorsuch

This CBS News article, headlined "Trump Supreme Court justice pick narrows to two names," it seems that two circuit judges are the men now most likely to be picked by the new Prez to replace Justice Scalia. Here are the details:

The choice to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia is down to two names -- Denver-based U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman of Pennsylvania, according to two sources close to the selection process.

Gorsuch has a slight edge -- CBS News’ Jan Crawford reported that Gorsuch was the front-runner over the weekend. But as Mr. Trump narrows the field, “many voices” are “making calls” on Hardiman’s behalf, and he cannot be ruled out, one source said. Hardiman has to be considered a serious contender, just on the heels of Gorsuch.

Tuesday’s White House meeting with Senate leaders and members of the Judiciary Committee is designed to be a general discussion to see if any names on Trump’s list of 21 potential high court nominees would present problems. It is not designed to elicit specific endorsements or opposition to any specific nominee. From the White House perspective, it is viewed as a gesture of respect of the Senate advise-and-consent role.

Both Hardiman and Gorsuch are regarded as conservative, but neither is thought by the White House to be unconfirmable. Nor are they nominees who would, the White House believes, elicit a massive Senate Democratic uprising. That is the working theory, but confirmation fights in the modern era have been unpredictable. There is a sense within the White House that 10 Senate Democrats up for re-election in 2018 from pro-Trump states are particularly vulnerable and MAY vote for confirmation -- hence the White House’s desire to move as rapidly as possible to preserve its leverage.

Gorsuch is a former Washington, D.C. lawyer and Supreme Court clerk educated at Harvard and Oxford who is considered a solid conservative. He sailed through his Senate confirmation in 2006, and was even introduced by both the Republican (then-Sen. Wayne Allard) and Democratic (then-Sen. Ken Salazar) senators from his home state of Colorado...

Selecting Hardiman would diversify the high court in one way -- if confirmed, Hardiman would be the only one on the high court without an Ivy League degree. The Massachusetts native became the first person in his family to go to college when he attended the University of Notre Dame. He paid his way through law school at Georgetown by driving a taxi....

Mr. Trump’s team believes Gorsuch is significantly less likely to inflame the left, while also being an acceptable choice to the far right. Gorsuch sided with Hobby Lobby in the Obamacare contraception case and wrote a book about assisted suicide that indicated his pro-life views. Before joining the bench, Gorsuch took few if any controversial positions as a D.C. lawyer in private practice or during his brief stint in the civil division of the Bush Justice Department.

Hardiman ‎is also seen as a solid conservative, but with a slightly more enigmatic record. Hardiman serves on the same court as President Trump’s sister, Maryanne Trump Barry.

Sentencing fans should know that both Judges Gorsuch and Hardiman have a significant history with sentencing appeals given their extended tenures on circuit courts, but Judge Hardiman also has history as a district judge from 2003 to 2007. I always think his kind of professional history is a plus for Supreme Court justices, and it strikes me as especially notable that Judge Hardiman was involved in sentencing federal defendants both before and after Booker made the guidelines advisory.

"Following the Money of Mass Incarceration"

The title of this post is the title of this notable new report and infographic from the folks at the Prison Policy Initiative.  Here is part of the text of the report: 

The cost of imprisonment — including who benefits and who pays — is a major part of the national discussion around criminal justice policy. But prisons and jails are just one piece of the criminal justice system and the amount of media and policy attention that the various players get is not necessarily proportional to their influence.

In this first-of-its-kind report, we find that the system of mass incarceration costs the government and families of justice-involved people at least $182 billion every year. In this report:

• we provide the significant1 costs of our globally unprecedented system of mass incarceration and over-criminalization,

• we give the relative importance of the various parts,

• we highlight some of the under-discussed yet costly parts of the system, and then

• we share all of our sources so that journalists and advocates can build upon our work.

Our goal with this report is to give a hint as to how the criminal justice system works by identifying some of the key stakeholders and quantifying their “stake” in the status quo. Our visualization shows how wide and how deep mass incarceration and over-criminalization have spread into our economy. We find:

• Almost half of the money spent on running the correctional system goes to paying staff. This group is an influential lobby that sometimes prevents reform and whose influence is often protected even when prison populations drop.

• The criminal justice system is overwhelmingly a public system, with private prison companies acting only as extensions of the public system. The government payroll for corrections employees is over 100 times higher than the private prison industry’s profits.

• Despite the fact that the Constitution requires counsel to be appointed for defendants unable to afford legal representation, the system only spends $4.5 billion on this right. And over the last decade, states have been reducing this figure even as caseloads have grown.

• Private companies that supply goods to the prison commissary or provide telephone service for correctional facilities bring in almost as much money ($2.9 billion) as governments pay private companies ($3.9 billion) to operate private prisons.

• Feeding and providing health care for 2.3 million people — a population larger than that of 15 different states — is expensive.

This report and infographic are a first step toward better understanding who benefits from mass incarceration and who might be resistant to reform. We have no doubt that we missed some costs, and we did not include some costs because they are relatively small in the big picture or are currently unknowable. But, by following the money, one can see that private prison corporations aren’t the only ones who benefit from mass incarceration.

Some of the lesser-known major players in the system of mass incarceration and over-criminalization are:

• Bail bond companies that collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty.

• Specialized phone companies that win monopoly contracts and charge families up to $24.95 for a 15-minute phone call.

• Commissary vendors that sell goods to incarcerated people — who rely largely on money sent by loved ones — is an even larger industry that brings in $1.6 billion a year.

A graphic like this shows the relative economic cost of different parts of mass incarceration, but it can also obscure the fact that we don’t have a single monolithic system. Instead, we have a federal system, 50 state systems, and thousands of local government systems. Sometimes these systems work together, although often they do not; and looking at just the national picture can obscure the importance of state and local policy decisions. For example, while state government spending makes up the majority (57%) of corrections costs, local governments make up almost a third (32%). Local governments are largely enforcing state law, and local discretionary arrest and bail policies can have tremendous influence on both the state budget and justice outcomes. For example, more than half ($13.6 billion) of the cost of running local jails is spent detaining people who have not been convicted.

To be sure, there are ideological as well as economic reasons for mass incarceration and over-criminalization.  But at this moment, when crime is near record lows and there is increasing attention to the role of privatization in the justice system, we need a far more expansive view of how our criminal justice system works, whom it hurts, and whom it really serves.  If we are to make our society safer and stronger, we’ll need to be making far smarter investments than we are today.

Questions about guilt phase theory of case and misconduct surround Texas death row inmate schedule for next execution

Texas is scheduled to carry out its second execution of 2017 tomorrow, but there are some seemingly serious questions about the guilty theory of the case and the prosecution's conduct.  A local article and a Slate commentary provides the particulars:

• From the Dallas Morning News here, "Texas high court denies stay two days before execution, but death row inmate's appeals continue"

• From Slate here, "Is Texas About to Execute an Innocent Man?: Terry Edwards’ murder conviction is irrevocably flawed."

Horrific aftermath for one Obama commutation recipient

This local article from Michigan, headlined "Ex-gang member 'executed' after Obama commutes sentence," reports on how one recipient of Obama's clemency push quickly became of victim of violent crime.  Here are the details:

Police say two masked gunmen with assault-style rifles entered a federal halfway house Monday night with a specific goal: the "execution" of a man recently released from prison at the behest of former President Barack Obama.

Demarlon C. Thomas, a former member of Saginaw's Sunny Side Gang who had his 19-year prison sentence commuted by Obama in November, was slain by one of the gunmen around 9:40 p.m. Monday, Jan. 23, at Bannum Place, the federal halfway house located at 2200 Norman St., Michigan State Police Lt. David Kaiser said.

Thomas, 31, was shot in the head and numerous other times by one of the gunmen as his partner corralled at gunpoint some of the other 23 people in the house, Kaiser said.  "One person watched over a group of them while another subject located the victim and executed him," Kaiser said. "They were looking for this person."

No one else was injured, and it's unknown at this time what security measures the halfway house had in place, Kaiser said. No suspects are in custody.

Thomas was among 79 people across the country who had their sentences commuted by Obama on Nov. 22, 2016. Obama commuted Thomas' sentence to expire on March 22, 2017, or about eight years before his initial release date....

Thomas was arrested in one of the biggest drug busts in the history of Saginaw. In 2008, he was sentenced to 19 years in prison for the distribution of five grams or more of cocaine as part of the three-year federal investigation called "Operation Sunset." In all, "Operation Sunset" saw 29 convictions in federal court and 10 in state court and effectively brought about the end of the Sunny Side Gang, which operated on Saginaw's South Side.

Is Prez Trump really ordering the Justice Department to conduct major voter fraud investigation?

Though it appears that Jeff Sessions will not be confirmed to serve as our next Attorney General until next week, his boss this morning was tweeting a new crime-fighting agenda for the Justice Department.  This U.S. News & World Report article, headlined "Trump Calls for Voter Fraud Investigation: The president has previously declared that 3 to 5 million voted illegally in 2016," explains:

President Donald Trump called for a "major investigation" into voter fraud Wednesday. "I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and… even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!" the president tweeted from his personal account.

The call is a follow-up on comments from Trump and the White House. Trump said "millions" voted illegally in November, prompting him to lose the popular vote to Hillary Clinton. And shortly after being sworn in as president, Trump repeated the claim to lawmakers at a White House reception, the Washington Post reported Tuesday.

When asked if the administration would call for an investigation on the matter at Tuesday's briefing in Washington, White House press secretary Sean Spicer said that it was a possibility. "Maybe we will," Spicer said.

He noted the president has continuously stated his concern on the issue before and "continues to maintain that belief" that voter fraud is a major problem, "based on studies and evidence people have brought to him." Spicer specifically cited a study "that came out of Pew in 2008 that showed 14 percent of people who voted were noncitizens."

Politico slammed the veracity of that study and claim, and several outlets, including CNN and the Associated Press, assert that the president and his team have provided essentially no evidence for these claims....

The White House is not fully going it alone, however. Mitch McConnell, the Senate Republican leader, gave at least tacit backing to Trump on the issue Tuesday. "It does occur," McConnell told reporters. "The notion that election fraud is a fiction is not true… There are always arguments on both sides about how much, how frequent and all the rest."

But House Speaker Paul Ryan said he had seen "no evidence to that effect" and he's made his position on the matter "very, very clear."

Based on the reports and evidence I have seen marshaled by folks on both sides of the political aisle, the claim that millions (rather than perhaps just hundreds) voted illegally in the 2016 election is seemingly badly detached from reality.  And it is useful to recall that we went down this road to some extent 16 years ago the last time a Republican took control of the Executive Branch.  This lengthy New York Times article from 2007, headlined "In 5-Year Effort, Scant Evidence of Voter Fraud," review the last version of this story and it starts this way:

Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews. Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.

"Orange is the New Black: Inequality in America's Criminal Justice System"

The title of this post is the title of this great event taking place on my own Ohio State University campus tomorrow afternoon. And that title should cue most everyone into the reality that the event is a speech to be delivered by Piper Kerman. Here is how the event is being described:

Bringing her message to Ohio State in this free talk and Q&A presented as part the university’s COMPAS program, Piper Kerman will speak about her own experiences in prison and shed light on the wide-ranging collateral damage of America’s criminal justice practices—particularly on family stability, women, children, and minorities.

Piper Kerman is the author of Orange Is the New Black: My Year in a Women’s Prison (Spiegel & Grau), a bestselling book that has been adapted by Jenji Kohan into an Emmy and Peabody Award–winning original series for Netflix. A hit TV show wasn’t Piper Kerman’s goal when she wrote her memoir about her 13 months in the Danbury Federal Correctional Institution, but its success has led to a life of advocacy for criminal justice reform.

The United States has the highest incarceration rate in the world. There are 2.2 million people in the nation’s prisons and jails—a 500% increase over the last 40 years disproportionately affecting people of color. During this time the number of incarcerated women has increased by more than 700%. Though many more men are imprisoned than women, the rate of growth for female imprisonment has outpaced men by more than 50% between 1980 and 2014.  According to sentencingproject.org, there are now 1.2 million women under the supervision of the criminal justice system.

Kerman is the recipient of Harvard's Humanist Heroine Award (2015), as well as the Constitutional Commentary Award from The Constitution Project (2014) and John Jay College's Justice Trailblazer Award (2014). She has testified before Congressional Committees and been invited to present on reentry issues at The White House. She has lectured to hundreds of audiences across the US ranging from justice reform groups, corrections professionals, universities, policymakers, and business leadership events.

A series of year-long conversations on morality, politics, and society, Ohio State’s COMPAS program hopes to promote sustained reflection on the ethical challenges that unify various projects within the university’s Discovery Themes Initiative.

Split Colorado Supreme Court concludes federal law precludes state officers from returning marijuana to acquitted defendants

The Colorado Supreme Court yesterday issued an interesting ruling driven by the conflict between the state's marijuana reforms and federal prohibition. (SCOTUS fans might note the majority opinion was authored by Justice Allison Eid, who is on Prez Trump's (not-so-)short list.) Here are parts of how the majority opinion in Colorado v. Crouse, No. 2017 CO 5 (Colo. Jan 23, 2017) (available here), gets started:

The state’s medical marijuana amendment, article XVIII, section 14(2)(e) of the Colorado Constitution, requires law enforcement officers to return medical marijuana seized from an individual later acquitted of a state drug charge. The federal Controlled Substances Act (“CSA”) prohibits the distribution of marijuana, with limited exceptions. 21 U.S.C. §§ 801–971 (2012). The question in this case is whether the return provision of section 14(2)(e) is preempted by the federal CSA....

The CSA does not preempt state law on the same subject matter “unless there is a positive conflict between [a] provision of [the CSA] and that State law so that the two cannot consistently stand together.” 21 U.S.C. § 903 (2012). The return provision requires law enforcement officers to return, or distribute, marijuana. Distribution of marijuana, however, remains unlawful under federal law. Thus, compliance with the return provision necessarily requires law enforcement officers to violate federal law. This constitutes a “positive conflict” between the return provision and the CSA’s distribution prohibition such that “the two cannot consistently stand together.”

Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) of the CSA immunizes only those officers who are “lawfully engaged in the enforcement of any law . . . relating to controlled substances.” 21 U.S.C. § 885(d) (2012) (emphasis added). This court has held that an act is “lawful” only if it complies with both state and federal law. Coats v. Dish Network, LLC, 2015 CO 44, ¶ 4, 350 P.3d 849, 851. The officers here could not be “lawfully engaged” in law enforcement activities given that their conduct would violate federal law.

Here is part of the start of the dissent authored by Justice Gabriel:

Because I believe that the plain language of § 885(d) of the CSA, 21 U.S.C. § 885(d), immunizes federal and state officers from civil and criminal liability in the circumstances at issue here, I perceive no conflict between the CSA and section 14(2)(e) of article XVIII of the Colorado Constitution, nor do I believe that it is impossible to comply with both the CSA and the Colorado Constitution, as the majority implicitly and the People expressly contend.

Though not in any way related to this ruling, I cannot help but take this not-quite-perfect opportunity to share titles and links to some coverage of marijuana reform issues from my other major blog, Marijuana Law, Policy and Reform:

• National Academies of Sciences, Engineering, and Medicine releases massive new report on "Health Effects of Cannabis and Cannabinoids"

• "Trump’s marijuana options"

• Terrific UC Davis Law Review Symposium papers on "Disjointed Regulation: State Efforts to Legalize Marijuana"

• Two notable new pieces from two notable marijuana reform states (co-authored by two notable former students who took my OSU College of Law marijuana seminar)

• New public health research shows reduction in traffic fatalities in medical marijuana states

• "Marijuana reforms flood state legislatures"

• New survey data on police perspectives indicates strong majority oppose blanket marijuana prohibition

• AG-nominee Jeff Sessions deftly avoids saying too much about aggressively enforcing federal marijuana laws

• NJ ad law judge says insurance company must pay for medical marijuana for injured worker

• Legal marijuana sales in 2016 in North America over $6.5 billion after another year of remakable growth

Two Governors dealing with prison overcrowding problems in distinct ways

I covered some midwest prison stories here yesterday, and today brings these interesting state prison reform stories from the south and west:

From Alabama here, "Gov. Robert Bentley says new prisons top priority this year"

As of September, Alabama had about 23,000 prisoners in facilities designed for about 13,000, an occupancy rate of about 175 percent. Overcrowding is not a new problem but makes it harder to deal with other pressing concerns.

In October, the U.S. Justice Department announced it was investigating the state's prisons. U.S. District Judge Myron Thompson is conducting a trial on claims that mental health care for inmates fails to meet constitutional standards. A trial on similar claims about medical care is expected later this year.

Department of Corrections Commissioner Jeff Dunn told lawmakers in November that prison violence was rising and the number of corrections officers had dropped by 20 percent in five years. Bentley and Dunn say the plan to build four new prisons, called the Alabama Prison Transformation Initiative, would be the most cost effective way to alleviate the overcrowding, under-staffing and other problems.

From Nevada here, "Sandoval wants to streamline parole process to fight prison overcrowding"

Nevada Gov. Brian Sandoval is pursuing creative solutions to a potential prison overcrowding challenge that could see capacity exceeded by 700 inmates by the end of the next budget without prompt action. “Our goal is to not construct a new prison,” Mike Willden, chief of staff to Sandoval, said in a budget briefing last week.

Prison construction is not cheap, and it has to be paid with state general funds. In 2007, the Legislature approved $300 million for prison construction projects. Sandoval’s solution rests primarily with the Division of Parole and Probation and the Parole Commission, which will be given new resources to speed up parole for as many as 300 to 400 eligible inmates....

At the Prison Board meeting, it was reported that one-third of paroled inmates being returned to prison were there for parole violations only. Crowding is a problem within the prison system.

Corrections Director James Dzurenda said at the meeting that 13,742 inmates were housed in the system — well over capacity if only regular housing beds were used. But the department has converted large areas of prisons, created for other purposes, into dormitory-style beds.

In addition to seeking to expedite paroles, the Department of Corrections has a capital construction project worth about $6 million to add 200 beds at the Southern Desert Correctional Center. A third element of the plan, if needed, sets aside about $12 million to temporarily house some Nevada inmates out-of-state while the parole efforts get up to speed, Willden said.

State lawmakers will get a first look at the corrections and parole budget proposals at a hearing Jan. 31, a week ahead of the start of the 2017 session on Feb. 6. Sandoval said in his budget that his goal is to reduce prison inmate recidivism by 10 percent through education programs and intervention services and resources, particularly in the areas of behavioral health, drug addiction and workforce training.

"Judge Gorsuch & Johnson Resentencing"

The title of this post is the title of this timely new commentary now on SSRN authored by Leah Litman about the latest "hot name" to replace Justice Scalia on the Supreme Court.  Here is the first paragraph:

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence.  The case concerns an issue on which the court of appeals disagree, and so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably susceptible to different resolution, as many of the Supreme Court’s cases are.  Prost illustrates how Judge Gorsuch will balance competing considerations of fairness and administrability in criminal law.  While there is much to like about Prost — it is well written, clearly reasoned, and adopts an administrable rule — the opinion also raises some concerns. The opinion overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts.

Rounding up some diverse prison stories from the industrial midwest

A handful of new stories about prisons emerging from a handful of industrial midwest states recently caught my eye and prompts this round-up:

• From Indiana here, "Chief Medical Officer Of Indiana Prisons Held Overlapping Position"

• From Michigan here, "Prison food contractor hit with $2M in penalties"

• From Ohio here, "Pagans, Wiccans, Satanists can now practice religion in Ohio prisons

• From Pennsylvania here, "'New normal:' With crime rates down, Pa. set to close 2 prisons"

The last of these listed stories seems like the biggest news, especially for those hoping state will be able to lead the way on reducing modern mass incarceration.

SCOTUS denies cert on handful of Alabama cases raising Hurst and other issues

This most recent Relist Watch posting by John Elwood at SCOTUSblog noted that the Supreme Court had relisted a few times a few cases from Alabama raising various challenges to how that state rolls its tide toward death sentences.  But this new Supreme Court order list, released this morning, has all of the relisted Alabama capital cases now on a certiorari denied list.

Interestingly, it appears that a few method-of-execution cases that were previously relisted are not on the latest cert denied list.  My guess would be that this is because someone is working on a dissent from denial of cert, but you never know just what SCOTUS is up to.

Making the case again against mandatory minimums

Mark Holden has this new op-ed, given the headline "Mandatory minimums are a crime in themselves," which discusses the well-known case of Weldon Angelos and then articulates the effective arguments against mandatory minimum sentencing statutes generally. Here are excerpts:

America's criminal justice system is broken. Too many of our fellow citizens are rotting behind bars, unable to atone for their mistakes, contribute to their communities and lead lives of meaning and fulfillment. It's not just a crisis — it's a crime in and of itself.

If you don't believe us, just go to the Sundance Film Festival this weekend. There you'll see a trailer for a new documentary about Weldon Angelos and his firsthand experience with the criminal justice system.  As a lawyer with Koch Industries, I learned about Weldon Angelos when he became the poster child for the unfair and unjust sentences that are all too common, especially for low-level and nonviolent offenders....

Even though he was a first-time, nonviolent offender [convicted of multiple marijuana distribution and gun possession charges], Weldon Angelos received a staggering 55-year prison sentence with a release date of October 2051. He would have received a shorter sentence for being a murderer or terrorist....

Weldon's story, thankfully, has a happy ending. Last May, after 12 years in prison, a federal court granted him an immediate reduction to his sentence. In a show of true compassion, the federal prosecutor who prosecuted him in the first place initiated this effort. Weldon has since returned to his family and his life — a life that only months ago seemed would be spent behind bars.

Yet the laws behind such grossly unjust punishments are still on the federal books. So are many other mandatory sentencing laws. Rolling them back — or repealing them outright — is one of the most important reforms before Congress.

This is especially important for federal drug offenders, over 260,000 of whom have been sentenced under mandatory minimums. Distressingly, 86 percent of current drug offenders in federal prison committed nonviolent crimes, and the same number were low-level offenders.

The case against mandatory minimum sentencing laws is simple. While initially created with good intentions, they typically do far more harm than good. Mandatory minimums empower prosecutors to a dangerous degree. They alone have the power to bring charges against offenders — if they bring ones associated with high mandatory minimums, the judge has little choice but to accept it, even if other charges might be more appropriate. Nowhere else in America's criminal justice system are judges and juries so powerless.

And while they are supposed to lower crime rates, studies have shown that mandatory minimums have had only a minor effect at best. Hardened criminals — the real bad guys — are still usually able to get favorable deals, while low-level ones get stuck with the harshest possible sentences. Last but not least, mandatory minimums create perverse incentives for the police themselves. If authorities truly felt Weldon was a threat to public safety, they would have arrested him the first time he sold marijuana to the informant. Instead, law enforcement allowed him to sell drugs two more times to enhance the sentence. This is fundamentally unjust.

The evidence points to the inescapable conclusion that mandatory minimums must be reformed, and fast. Congress has an opportunity to make law enforcement jobs less dangerous, enhance public safety for all, bring communities together, and help countless people improve their lives — people like Weldon Angelos. It's time to restore justice to America's criminal justice system.