Sentencing Law and Policy

CNN premiering new film "American Jail"

As detailed at this link, CNN Films will premiere on Sunday, July 1 at 8 pm on CNN a feature titled "American Jail." Here is the website's brief description of the film: "In this provocative and personal film, Academy Award-winning director Roger Ross Williams explores the forces that fuel America's sprawling prison system." The film weblink has additional content assembled, including links to these short excerpts from the film:

• She's in jail for 6 months over $545

• One missed payment put him back behind bars

CNN also has this new article headlined "5 facts behind America's high incarceration rate," and here are the "5 facts" this article reports:

• Most inmates are held in state prisons and local jails -- not federal prisons.
• In many cities and states, money often decides who stays in jail and who gets out.
• The 'war on drugs' isn't solely to blame for mass incarceration.
• Once you're in the criminal justice system, it's often difficult to get out.
• Minorities are still overrepresented in the prison population, but racial and ethnic gaps are shrinking.

"Originalism and the Common Law Infancy Defense"

The title of this post is the title of this new article by Craig Lerner now available via SSRN.  Though I consider any article about the Eighth Amendment to be timely, this one seems even more so with the recent retirement announcement of Justice Anthony Kennedy, who was often a "swing" SCOTUS voter in Eighth Amendment cases.  Here is this article's abstract:

Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted.  With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791.  Yet the common law infancy defense, as sketched by originalist judges, seems barbaric.  It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment — even capital punishment — on offenders as young as seven.

This Article argues that the common law infancy defense was more nuanced than modern observers often recognize.  With respect to misdemeanors, the defense was more broadly applicable than is typical today.  Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong.  The eighteenth-century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable.

This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people.  However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.

"Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence"

The title of this post is the title of this new paper authored by Tonja Jacobi and Ross Berlin now available via SSRN. Here is the abstract:

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system.  The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system.  These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities.

For each major stage of a person’s interactions with the criminal justice system — search and seizure, plea-bargaining, and sentencing — the Court develops doctrines that protect only a tiny percentage of people.  This is because the Court focuses nearly all of its attention on the small fraction of cases implicating the exclusionary rule, trial rights, and the death penalty, and it ignores the bulk of real-world criminal procedure — searches and seizures that turn up no evidence of crime, plea bargains that occur outside of the courtroom, and the sentencing of convicts for terms of years — leaving constitutional rights unrecognized and constitutional violations unremedied.  Consistently, each issue the Supreme Court neglects has a disparate impact on traditionally disadvantaged racial minorities.  Together, this constitutes an abdication of the Court’s responsibility.

A quick look at how Justice Kennedy's retirement might impact capital punishment jurisprudence

This new HuffPost piece, headlined "Justice Kennedy’s Retirement Is A Setback For Death Row Inmates," provides a quick account of one area of sentencing jurisprudence likely to be impacted considerably by a coming SCOTUS transition. Here are excerpts:

President Donald Trump’s likely choice of a deeply conservative justice to replace Anthony Kennedy on the Supreme Court could have a significant impact on death penalty cases, experts say.

“Death row inmates will find it substantially more difficult to prevail,” said John Blume, a law professor at Cornell Law School and director of the Cornell Death Penalty Project. “Justice Kennedy was conservative on criminal justice and capital punishment matters, but most or all of the names being bandied about as his replacement are most likely going to be more to much more conservative.”

Though Kennedy was a reliable vote in allowing executions to proceed in cases involving the methods of execution, he was the only Republican appointee who frequently aligned himself with the more liberal justices in cases that limited the circumstances in which states could impose capital punishment.  “Kennedy was often the deciding vote in [death penalty] cases, sometimes on one side, sometimes the other,” David Menschel, a criminal defense attorney and activist, told HuffPost.  “Now I would expect SCOTUS to show even more complete deference to the states and to allow executions to proceed with little concern whether states are acting lawfully.”

Kennedy was the key swing vote in the court’s 2005 decision to prohibit the execution of juvenile defendants. He was the deciding vote in the 2008 decision that barred the use of the death penalty in cases where a defendant raped, but did not kill, a child.  And his vote was key in the 2014 ruling that established that a Florida law that set a strict IQ cutoff for determining intellectual disability in capital punishment cases was unconstitutional.  The Florida law, Kennedy wrote for the majority, “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”...

“The most profound effect is likely to involve those death penalty cases that involve the application of the evolving standards doctrine,” said Robert Dunham of the Death Penalty Information Center, a group doesn’t take a position for or against death penalty, but has been critical of how it has been administered.  The “evolving standards of decency” doctrine Dunham was referring to was coined by Chief Justice Earl Warren in a 1958 case in which the court recognized that the interpretation of what constitutes fair and cruel punishment is not static under the Eighth Amendment.

“In essence, the Eighth Amendment meant whatever Justice Kennedy thought it meant,” Dunham said.  “Now, it will mean whatever Chief Justice [John] Roberts thinks it means. That’s where I think it will have the most significant impact.”

The final quote by Robert Dunham here rightly flags that Chief Justice Roberts in now likely to be the closest thing to a swing vote in capital cases (and maybe in an array of criminal cases). The Chief has voted along with Justice Kennedy and the liberal justices in more than a few capital cases (see DPIC case list here) as well as one some other criminal justice issues, and his criminal jurisprudence has just become a lot more important to a lot more defendants and their lawyers.

Prior posts on Justice Kennedy's retirement (including one from MLP&R):

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more 
• Just a few Justice Kennedy sentencing jurisprudence highlights
• "Betting Odds for Next Supreme Court Justice: Who Will Replace Anthony Kennedy?"
• With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?

Two new documents from Center for American Progress on "Ending the War on Drugs"

The Center for American Progress released this week two notable new short papers, titled "Ending the War on Drugs" and "Ending the War on Drugs: By the Numbers."  Here are links to both documents and their introductions:

"Ending the War on Drugs":

Nationwide, communities face an unprecedented rise in substance misuse fatalities. A record 63,600 overdose deaths were recorded in 2016, two-thirds of which involved opioids.  To stem the tide of this crisis, some communities are doubling down on the war on drugs, despite clear evidence that increasing arrests and incarceration does not lower drug use.  But an increasing number of cities are bucking the trend and adopting models that treat substance misuse as a disease, not a crime.  Instead of criminalizing substance use disorders, communities are focusing on saving lives and reducing the harmful effects of drug use.

The idea of “harm reduction” may seem like common sense today, but it signifies a radical departure from traditional U.S. responses to drug use, which relied heavily on the criminal justice system.  More and more cities are expanding access to clean syringes, launching safe-injection facilities, and decriminalizing possession of controlled substances. Public acceptance of these approaches was unthinkable just a few years ago.  Today, however, they are filtering into the mainstream.  In fact, support for harm reduction spans the ideological spectrum.  These strategies are underway in red and blue states alike, representing promising steps toward dismantling the country’s failed drug policy agenda.

"Ending the War on Drugs: By the Numbers"

President Richard Nixon called for a war on drugs in 1971, setting in motion a tough-on-crime policy agenda that continues to produce disastrous results today.  Policymakers at all levels of government passed harsher sentencing laws and increased enforcement actions, especially for low-level drug offenses.  The consequences of these actions are magnified for communities of color, which are disproportionately targeted for enforcement and face discriminatory practices across the justice system. Today, researchers and policymakers alike agree that the war on drugs is a failure.  This fact sheet summarizes research findings that capture the need to replace the war on drugs with a fairer, more effective model that treats substance misuse as a public health issue — not a criminal justice issue.

US Sentencing Commission releases notable list of proposed priorities for 2018-19 amendment cycle

The US Sentencing Commission around this time of year typically releases a set of proposed priorities for the coming year's guideline amendment cycle.   For a bit of context, here are links to posts about its release of priorities for the 2016-17 amendment cycle and for the 2017-18 amendment cycle.   As informed readers may recall,  the USSC is still working with a reduced membership — it is supposed to have seven members and right now has only four — and there seems to be no movement on the controversial slate of additional nominees that Prez Trump put forward in March (basics here and more here).  I suspect the reduced membership might in part account for what this year's list of proposed priorities may be a bit shorter than usual.

But the reduced membership has not prevented the USSC from still producing a set of proposed priorities for 2018-19 amendment cycle that have more than a few interesting elemtns.  Nine total priorities were released yesterday and appear on the USSC website and in this new federal register notice.  Here excepts from the notice that especially caught my eye (with some added emphasis in a few spots):

Pursuant to 28 U.S.C. § 994(g), the Commission intends to consider the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to any identified priority.

As so prefaced, the Commission has identified the following tentative priorities:

(1) Continuation of its multiyear examination of the structure of the guidelines post-Booker and consideration of legislative recommendations or guideline amendments to simplify the guidelines, while promoting proportionality and reducing sentencing disparities, and to account appropriately for the defendant’s role, culpability, and relevant conduct.

(2) A multiyear study of synthetic drug offenses committed by organizational defendants, including possible consideration of amendments to Chapter Eight (Sentencing Organizations) to address such offenses.

(3) Continuation of its work with Congress and others to implement the recommendations of the Commission’s 2016 report to Congress, Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) Continuation of its work with Congress and others to implement the recommendations of the Commission’s 2011 report to Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System — including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c) — and preparation of a series of publications updating the data in the report....

(9) Consideration of other miscellaneous issues, including (A) possible amendments to the commentary of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) in light of Koons v. United States, No. 17-5716 (June 4, 2018); (B) study of the operation of §5H1.6 (Family Ties and Responsibilities (Policy Statement)) with respect to the loss of caretaking or financial support of minors; and (C) study of whether §1B1.13 (Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)) effectively encourages the Director of the Bureau of Prisons to file a motion for compassionate release when “extraordinary and compelling reasons” exist.

As the USSC notice highlights, this notice indicates the USSC is "seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2019.  To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority."  Public comments "should be received by the Commission on or before August 10, 2018."

Some GVRs, summary reversal of the Ninth Cirucit and Justice Breyer dissenting to contend "the death penalty today lacks requisite reliability"

This lengthy final order list finishing up the current SCOTUS Term has its most exciting news for criminal justice fans from the single line  granting cert in Gamble v. United States so the Justices can reconsider the Double Jeopardy Clause's "dual-sovereignty doctrine" (discussed here).  But the order list also includes a number of GVR cases citing Carpenter and Rosales-Mireles and a number of notable summary reversals and statements concerning the denial of cert.   Of greatest interest to sentencing fans are:

 This per curiam summary reversal of the Ninth Circuit judgment in Sexton v. Beaudreaux, No. 17-1106 (which led to Justice Stephen Breyer dissenting without opinion).  Here is how the lengthy summary reversal starts:

In this case, the United States Court of Appeals for the Ninth Circuit reversed a denial of federal habeas relief, 28 U.S.C. §2254, on the ground that the state court had unreasonably rejected respondent’s claim of ineffective assistance of counsel. The Court of Appeals’ decision ignored well-established principles. It did not consider reasonable grounds that could have supported the state court’s summary decision, and it analyzed respondent’s arguments without any meaningful deference to the state court. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.

This dissent from the denial of certiorari in Jordan v. Mississippi authored by Justice Breyer (which did not garner any additional votes).  Here is how his lengthy dissent starts:

In my dissenting opinion in Glossip v. Gross, 576 U.S. ___ (2015), I described how the death penalty, as currently administered, suffers from unconscionably long delays, arbitrary application, and serious unreliability. Id., at ___ (slip op., at 2).  I write to underline the ways in which the two cases currently before us illustrate the first two of these problems and to highlight additional evidence that has accumulated over the past three years suggesting that the death penalty today lacks “requisite reliability.” Id., at ___ (slip op., at 3).

SCOTUS grants cert to reconsider Double Jeopardy Clause's "dual-sovereignty doctrine"

This lengthy final order list finishing up the current SCOTUS Term includes lots of little items that will be of interest to sentencing fans, and one big item that could be really interesting for criminal law.  That big item is a cert grant in Gamble v. United States, which presents only this question: "Whether the Court should overrule the 'separate sovereigns' exception to the Double Jeopardy Clause." Here is how the Gamble cert petition's introduction starts:

The Fifth Amendment enshrines a promise that “No person shall . . . be twice put in jeopardy” “for the same offence.”  Yet Terance Martez Gamble has been subjected to exactly that: two convictions, and two sentences, for the single offense of being a felon in possession of a firearm.  As a result of the duplicative conviction, he must spend three additional years of his life behind bars.  The Double Jeopardy Clause prohibits that result.

The so-called dual-sovereignty doctrine has been around since the 1950s, but both Justices Ginsburg and Thomas have called for giving it another look in light of changed criminal justice realities. I am very excited SCOTUS is now taking up this issue and I will be the first (but surely not the last) to say I hope SCOTUS is willing to Gamble with abolishing the Double Jeopardy Clause's dual-sovereignty doctrine.

"Betting Odds for Next Supreme Court Justice: Who Will Replace Anthony Kennedy?"

Especially in light of the Supreme Court's work earlier this Term in Murphy v. National Collegiate Athletic Association to allow states to move forward with sports betting, I could not resist posting this article from The Action Network with the headline that serves as the title for this post. Here is some of its content:

Justice Anthony Kennedy, 81, dropped a political bombshell on Wednesday afternoon, unexpectedly announcing his retirement from the Supreme Court. Kennedy’s retirement, which will take effect on July 31, has massive ramifications on the political landscape. Kennedy was considered the swing vote on the Supreme Court. He was a Republican, but switched sides often to vote with the Democrats, most notably in favor of abortion rights and same-sex marriage.

With Kennedy gone, President Trump gets a second Supreme Court pick. Trump is expected to nominate a staunch conservative in the mold of Neil Gorsuch, whom he tapped in 2017. Republicans will look to fill the seat before midterm elections in the fall....

Pres. Trump says his potential nominee to replace Justice Kennedy will come from a previously released list of 25 names, including judges, retired judges, and a member of Congress.... Offshore sportsbooks across the market didn’t take long to post odds for Kennedy’s replacement.

At Bovada, Brett Kavanaugh opened as the favorite at +175. Kavanaugh is a former White House lawyer for George W. Bush who was confirmed to the U.S. Court of Appeals in Washington in 2006.  Thomas Hardiman, a U.S. Court of Appeals judge for the Third Circuit, is next on the list at +350.  Hardiman was considered a finalist to succeed the late Antonin Scalia in 2016, but lost out to Gorsuch.

If I was inclined to bet on this kind of stuff, I think I would see Amy Coney Barrett at +450 and Amul Thapar at +500 to be good value plays.  But Don Willett at +2500 might be fun and worth a few bucks just for the Twitter fun.

Texas completes execution of serial killer, its seventh of 2018

As reported in this local article, headlined "'Burn in hell for eternity': Houston serial killer Danny Bible executed in Huntsville," Texas completed another execution last night.  Here are the details:

Shaking from Parkinson's tremors, voice quavering as he muttered "it hurts," Houston serial killer Danny Bible took his last gasping breaths on the gurney in Huntsville before closing one eye, snoring and falling forever silent.  He offered no final statement Wednesday night, but protesters outside shouted angrily into a megaphone, defending the aging four-time killer.

Afterward, in a quiet conference room above the warden's office, the family of one of Bible's victims offered a final word.  "Danny Paul Bible is as a vile and evil a person that has ever drawn breath," said Larry Lance, whose sister fell prey to Bible's wrath in 1983. "We are glad to have witnessed him draw his last breath.  I know that he will burn in hell for eternity."

Despite concerns about the difficulty of finding a vein on the ailing murderer, the lethal injection team hooked up IV lines in under 15 minutes.  After the lethal dose began at 6:17 p.m., Bible started breathing heavily before saying it "burned."  He stopped moving three minutes later and was pronounced dead at 6:32 p.m.  He was the seventh killer to die in Huntsville this year.

Bible was sent to death row in 2003 after a crime spree zig-zagging across the country for the better part of 20 years.  Though he murdered two other women and a baby, raped five young relatives and claimed an assortment of other violent crimes, it was his first killing -- back in 1979 -- that sent him to the death chamber....

In the weeks leading up to his scheduled execution, his defense team launched a flurry of legal claims, arguing that the aging prisoner might be too sick to execute by injection. Instead, they said, he should die by firing squad or nitrogen gas. In the end, the lethal injection team found viable veins in Bible's hands.

The so-called ice pick killer had a "galaxy of medical issues" that raised the possibility of a prolonged and painful lethal injection process his lawyers argued would violate the Eighth Amendment's ban on cruel and unusual punishment.  "Texas will almost certainly join Alabama and Ohio and add itself to the unconscionable list of botched executions in America," his attorney Jeremy Schepers predicted beforehand....

Bible's attorneys on Wednesday took his case all the way up to the Supreme Court.  Denying his challenge, they argued, could shut the door on any other similar claims from ailing prisoners who could suffer botched executions. But the high court denied his plea just after 5:30 p.m....

The Lone Star State has now executed seven men this year, including another Houston serial killer, Anthony Shore.  There are seven other death dates on the calendar in Texas.

Notably, Texas only had seven executions through all of 2017, but it has hit that number through just the first part of 2018.

"The Hidden Law of Plea Bargaining"

the title of this post is the title of this notable new article available via SSRN authored by Andrew Manuel Crespo. Here is its abstract:

The American criminal justice system is a system of pleas.  Few who know it well think it is working.  And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.”  That assumption holds true with respect to substantive and constitutional criminal law — the two most studied bodies of law in the criminal justice system — neither of which significantly regulates prosecutorial power.  The assumption is misguided, however, insofar as it fails to account for a third body of law — the subconstitutional law of criminal procedure—that regulates and often establishes the very mechanisms by which prosecutorial plea bargaining power is both generated and deployed.

These hidden regulatory levers are neither theoretical nor abstract.  Rather, they exist in strikingly varied forms across our pluralist criminal justice system.  This Article excavates these unexamined legal frameworks, conceptualizes their regulatory potential, highlights their heterogeneity across jurisdictions, and exposes the institutional actors most frequently responsible for their content.  In so doing, it opens up not only new scholarly terrain but also new potential pathways to criminal justice reform.

Just a few Justice Kennedy sentencing jurisprudence highlights

The fine folks at the Legal Information Institute appear to have all of retiring Justice Anthony Kennedy's Supreme Court opinions assembled at this link.  Here is my quick accounting of just a few of his significant sentencing rulings (in chronological order):

• Harmelin v. Michigan, 501 U.S. 957 (1991)

• Koon v. US, 518 U.S. 81 (1996)

• Glover v. US, 531 U.S. 198 (2001) 

• Harris v. US, 536 U.S. 545 (2002) 

• Roper v. Simmons, 543 U.S. 551 (2005)

• Kennedy v. Louisiana, 554 U.S. 407 (2008)

• Graham v. Florida, 560 U.S. 48 (2010)

• Montgomery v. Louisiana, 577 U.S. ___ (2016)

This list includes only lead opinions for the Court (though technically Harmelin is a concurrence), and I am sure I have not listed every opinion that sentencing fans might consider a big part of the Kennedy legacy.  But this abridged list alone showcases what a extraordinarily consequential "Sentencing Justice" that Anthony Kennedy has been during his 30+ years on the Court.  

For a variety of complicated personal reasons, Koon may be my favorite of the opinions on this list and Harmelin is certainly my least favorite.  And I would be eager to hear in the comments about favorites or opinions not mentioned above that are part of the "sentencing footprint" that Justice Kennedy is leaving.

Prior related post:

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more

Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more

After a few years of speculation, Justice Anthony Kennedy has now finally announced his retirement.  This is huge news for all areas of law, and starts another round of speculation about who Prez Trump will name to replace him on the Court.  Here is a USA Today story with some context:

Supreme Court Justice Anthony Kennedy is retiring, giving President Trump and Senate Republicans an opportunity to create a solidly conservative court that could last for decades. Kennedy's long-rumored decision to step down July 31 will touch off a titanic battle between conservatives and liberals in the nation's capital, on the airwaves, and in states represented by key senators whose votes will be needed to confirm his successor.

Kennedy, 81, has held the most important seat on the court for more than a decade: He is the swing vote on issues ranging from abortion and affirmative action to gay rights and capital punishment, often siding with the court’s more liberal justices....

Kennedy’s departure will leave a hole in the middle of the court that Republicans are eager to fill with a more reliable conservative. Trump has said he would choose from a list of 25 potential nominees assembled with the help of the conservative Federalist Society and Heritage Foundation. That list was expanded in November to include Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit – a front-runner for the seat who, like Gorsuch, once clerked for Kennedy....

Among the other judges on Trump’s list most often mentioned as potential Kennedy replacements are Thomas Hardiman of Pennsylvania, who serves on the U.S. Court of Appeals for the 3rd Circuit, and Raymond Kethledge of Michigan, who serves on the 6th Circuit.  More intriguing are fresh faces such as newly confirmed federal appeals court judges Amy Coney Barrett of Indiana and Amul Thapar of Kentucky.

Kennedy’s ultimate decision to wait until 2018 gave the Supreme Court time to settle into a new pattern with Gorsuch shoring up its right flank. Had he waited until next year, it would have given Democrats a chance to regain the Senate majority this November and block Trump's nominee.  Republicans have a 51-seat majority now, giving them the ability to withstand Democratic opposition.  The traditional 60-vote threshold for high court nominees was abolished last April when Democrats threatened to block Gorsuch’s confirmation, prompting Senate Republican leader Mitch McConnell to push through a rules change allowing justices to be confirmed with simple majority votes.

Still, the upcoming battle over Kennedy’s replacement is certain to be one of the most intense ever, with conservative and liberal interest groups poised to spend tens of millions of dollars in advertising and grass-roots activity. Much of the liberals’ effort likely will focus on moderate GOP senators such as Maine’s Susan Collins and Alaska’s Lisa Murkowski, who might be wary of adding a hard-line conservative and risking decades-old precedents such as Roe v. Wade, which legalized abortion in 1973. Conservatives will focus on moderate Democrats running for re-election in Trump country, such as Indiana's Joe Donnelly, North Dakota's Heidi Heitkamp and West Virginia's Joe Manchin.

That battle is likely to play out over the next few months. Republicans are determined to fill Kennedy’s seat before the court’s 2018 term begins in October, as well as the November elections.

This USA Today piece rightly mentions capital punishment as an area in which Justice Kennedy has often been a swing vote, and that might be expanded to include Eighth Amendment jurisprudence more generally in light of his decisions in Graham and Miller and Montgomery. Justice Kennedy has also tended to be a key fifth vote on non-constitutional issues as well, though he has generally been (along with Justice Breyer) a long-standing opponents to criminal defendants' Sixth Amendment rights as articulated in the Apprendi-Blakely line of cases.

In some coming posts, I will review some of Justice Kennedy's biggest sentencing opinions as well as some of the sentencing history of some of the top candidates to replace him. But for now I will be content to thank Justice Kennedy for his service and to wish him a happy and healthy retirement.

Recommending FAMM's great new report "Everywhere and Nowhere: Compassionate Release in the States"

Families Against Mandatory Minimums (FAMM) now has at this link its big new report on compassionate release programs authored by Mary Price under the title "Everywhere and Nowhere: Compassionate Release in the States."  Here is how the report and related resources are introduced:

“Everywhere and Nowhere: Compassionate Release in the States,” is a comprehensive, state-by-state report on the early-release programs available to prisoners struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

The report takes a deep dive into the regulations and requirements of these programs in each state, including the varying categories of release, eligibility criteria, and reporting. The analysis also reveals a troubling number of barriers faced by prisoners and their families when applying for early release.

The report is accompanied by a comparison chart, 21 recommendations for policymakers, and 51 individual state memos.

Here are more links to the resources from this report:

• Executive Summary
• The Full Report
• Chart: Compassionate Release Across States
• Bibliography

And here is an excerpt from the Executive Summary:

We were gratified to learn that 49 states and the District of Columbia provide some means for prisoners to secure compassionate release.  But we were dismayed to discover that very few prisoners actually receive compassionate release.

This report summarizes our findings. It describes the barriers and the best practices we uncovered and illustrates them with selected examples drawn directly from our research on individual states. Above all, we found that every state could improve compassionate release. Accordingly, this report closes with a set of recommendations for policymakers interested in bringing their state programs in line with best practices.

The Sentencing Project effectively reviews "Trends in U.S. Corrections"

The folks at The Sentencing Project late last week published this document, titled "Trends in U.S. Corrections," which serves as an effective fact sheet compiling major developments regarding the scope of imprisonment in the US criminal justice system over the past several decades. The short document has lots of effective graphs reporting on lots of demographic realities of prison populations, and here is a bit of its prose on two particular issues:

Sentencing policies of the War on Drugs era resulted in dramatic growth in incarceration for drug offenses.  Since its official beginning in the 1980s, the number of Americans incarcerated for drug offenses has skyrocketed from 40,900 in 1980 to 450,345 in 2016.  Furthermore, harsh sentencing laws such as mandatory minimums keep many people convicted of drug offenses in prison for longer periods of time: in 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison.  By 2004, people convicted on federal drug offenses were expected to serve almost three times that length: 62 months in prison.

At the federal level, people incarcerated on a drug conviction make up just under half the prison population.  At the state level, the number of people in prison for drug offenses has increased ninefold since 1980, although it has begun declining in recent years.  Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense....

The number of people serving life sentences continues to grow even while serious, violent crime has been declining for the past 20 years and little public safety benefit has been demonstrated to correlate with increasingly lengthy sentences.  The lifer population has nearly quintupled since 1984.  One in nine people in prison is now serving a life sentence and nearly a third of lifers have been sentenced to life without parole.

So how was it decided Reality Winner should get 63 months for leaking classified information? Does it seem about right?

The questions in the title of this post are prompted by this news out of the federal criminal justice system via the New York Times: "Reality L. Winner, a former Air Force linguist who was the first person prosecuted by the Trump administration on charges of leaking classified information, pleaded guilty on Tuesday as part of an agreement with prosecutors that calls for a sentence of 63 months in prison." Here is more of the particulars and some context:

Ms. Winner, who entered her plea in Federal District Court in Augusta, Ga., was arrested last June and accused of sharing a classified report about Russian interference in the 2016 election with the news media. Ms. Winner, who is now 26, has been jailed since her arrest and wore an orange prison jumpsuit and white sneakers to the hearing. Her decision to plead guilty to one felony count allows the government both to avoid a complex trial that had been scheduled for October and to notch a victory in the Trump administration’s aggressive pursuit of leakers.

“All of my actions I did willfully, meaning I did so of my own free will,” Ms. Winner told Chief Judge J. Randal Hall on Tuesday. Throughout the hearing, Ms. Winner kept her hands behind her back while she answered questions about whether she understood the terms of the plea deal.

Ms. Winner, who was honorably discharged from the Air Force in 2016, was working as a contractor for the National Security Agency when she obtained a copy of a report that described hacks by a Russian intelligence service against local election officials and a company that sold software related to voter registration. The Intercept, an online news outlet that a prosecutor said Ms. Winner admired, published a copy of the top secret report shortly before Ms. Winner’s arrest was made public. The report described two cyberattacks by Russia’s military intelligence unit, the G.R.U. — one in August against a company that sells voter registration-related software and another, a few days before the election, against 122 local election officials.

At a detention hearing last year, the prosecutor, Jennifer G. Solari, said that Ms. Winner had been “mad about some things she had seen in the media, and she wanted to set the facts right.”...

Once rare, leak cases have become much more common in the 21st century, in part because of such electronic trails. Depending on how they are counted, the Obama administration brought nine or 10 leak-related prosecutions — about twice as many as were brought under all previous presidencies combined.

The Justice Department prosecuted Ms. Winner under the Espionage Act, a World War I-era law that criminalizes the unauthorized disclosure of national-security secrets that could be used to harm the United States or aid a foreign adversary. Ms. Winner’s prosecution galvanized transparency advocates, who mounted a publicity campaign in her support that even included a billboard in Augusta, the east Georgia city where Ms. Winner lived at the time of her arrest. They were particularly infuriated by a judge’s ruling that she be held until her trial....

Ms. Winner is the second person known to have reached a plea agreement with the Trump administration to resolve a leak prosecution. A former F.B.I. agent, Terry J. Albury, pleaded guilty in April, but prosecutors in that case have signaled that they will ask that he serve 46 to 57 months in prison.

The Justice Department has brought at least two other leak-related cases under the Trump administration.  Earlier this month, James Wolfe, a former Senate Intelligence Committee staffer, was arrested and charged with lying to the F.B.I. about his contacts with reporters, including a Times reporter with whom he had a personal relationship and whose phone records the department secretly seized, during a leak investigation; Mr. Wolfe has not been charged with leaking classified information, however.  He has pleaded not guilty.  Also this month, Joshua A. Schulte, a former C.I.A. software engineer, with charged with violating the Espionage Act and other laws based on accusations that he sent a stolen archive of documents and electronic tools related to the agency’s hacking operations to WikiLkeas, which dubbed them the Vault 7 leak. Mr. Schulte had already been facing child pornography charges.

A judge must still decide whether to approve her sentence after reviewing a report that prosecutors will present.  But prosecutors’ recommendation of more than five years in prison — followed by three years of supervised release — was unusually harsh for a leak case.  For most of American history, people accused of leaking to the news media were not prosecuted at all.  In the flurry of cases that have arisen during the 21st century, most convicted defendants were sentenced to one to three-and-a-half years.

One — Chelsea Manning, who was convicted at a military court-martial for sending large archives of military and diplomatic documents to WikiLeaks — was sentenced to 35 years in prison, but served only about seven years because President Barack Obama commuted the remainder of her sentence.

As this article suggests, there is not a lot of history of sentences for these kinds of leaks, and arguably the Chelsea Manning case sets a notable benchmark for how high a sentence might go for this kind of illegal leaking. But there are lots of ways to distinguish Manning and Winner, and Winner still seems to be getting a sentence considerably more severe than most modern leakers. That said, if one believes that deterrence considerations are especially important and perhaps effective in this setting, perhaps it is particularly justifiable for federal prosecutors to try to throw the book at the few high-profile leakers who get convicted.

Notably, as this article notes, a federal judge has to decide whether to accept this particular plea deal with its built-in sentence of 63 months.  Comments are welcome concerning whether the judge out to have some pause about doing so.

"For Justice and Decarceration, Enact Second-Look Sentencing"

The title of this post is the headline of this new commentary authored by Steven Zeidman in the Gotham Gazette. Here are excerpts:

Regardless what one thinks of presidential pardons, we should reflect upon a simple truth — convictions and sentences meted out at one point might not be appropriate decades later.  That is especially true for many people currently serving life or massive prison sentences.

Many have argued for sentence commutations for specific classifications of people. In recent years, the Supreme Court has recognized that judges sentencing young people, even for violent crimes, must consider lack of maturity, impulsivity, and the inherent potential for change, and so reformers are asking courts to resentence those serving long prison terms for crimes committed when they were young. Many people advocate for medical parole or compassionate release for the elderly and infirm.  Others focus on people deemed to be low-level, non-violent drug offenders.

At the heart of the problem, however, are all the people serving draconian sentences for crimes committed when they were adults and who are not, at least not yet, suffering from any debilitating illness or in any other “special” category. In fact, it is the “normalcy” of so many cases that highlights the issue we must confront....

Last year, the venerable American Law Institute, a non-governmental organization of judges, lawyers and academics, approved the first-ever revisions to the historic Model Penal Code.  The MPC, taught in virtually every law school, was developed in 1962 to introduce uniformity and coherence to the myriad criminal codes in the 50 states, and serves as a model across the country.  The update to the Code took more than 15 years to complete and yielded a comprehensive 700-page report.

The ALI focused specifically on sentencing in order to address the decades of punitiveness that led to the current state of mass incarceration, made all the more shameful by the significant racial disparities in American jails and prisons. One recommendation in particular addresses the epidemic of 2.2 million people behind bars. The Code now calls for state legislatures to enact a “second look” provision; to create a mechanism to reexamine a person’s sentence after 15 years no matter the crime of conviction or how long the original sentence. If the original sentence remains unchanged, it would be revisited every ten years thereafter.

While many will sound the alarm for “truth-in-sentencing” or the need for finality, the second-look provision asks a very basic question — are the purposes of sentencing better served by a sentence modification or by adhering to the original sentence imposed many years earlier? The commentary to the Code cites a host of utilitarian reasons why long sentences should not be frozen in time, suggesting that “governments should be especially cautious” and act with “a profound sense of humility” when depriving people of their freedom for most of their adult lives.

The commentary notes further that new developments might show that old sentences are no longer empirically valid, as current risk assessment methods claim to be better at predicting risk of recidivism than those previously used. Similarly, new rehabilitative approaches might be discovered for people who at the time of their sentencing were thought resistant to change.

The second-look provision is bold and unprecedented — to actually redress the past 50 years of mass incarceration requires nothing less, as most proposed criminal justice solutions and reforms are prospective and have no impact on those people currently in prison. Further, executive clemency in the form of sentence commutation has also proven to be of limited utility as Presidents and Governors are loath to exercise this power to any serious and meaningful degree.

Second-look allows for mid-course correction if warranted by some measure of changed circumstances -- major changes in the offender, his family situation, the crime victim, or the community — that merit a different sentence.  It is consistent with the growth of restorative justice that seeks to move away from the punishment paradigm of the last several decades.  Second-look also allows the sentencing determination to be made in a calmer atmosphere than existed at the time of the original sentencing, so that any notoriety, outside pressure, or inflamed passions may have abated.

Bills have been introduced in the New York State Legislature regarding parole eligibility for people who are least 55 years old and have served at least 15 years of their sentence, and while the devil may be in the details, they are not insurmountable.  There will be costs associated with establishing second-look processes but money will ultimately be saved as more people are sent home.  Releasing people from prison is often controversial and even one crime committed by a releasee can threaten to shut down any second-look process, so there must be carefully constructed guidelines, created by myriad stakeholders, to ensure the independence of the decision-makers, and that all decisions are consistent, defensible, and transparent.

Mass incarceration is not just about unnecessarily incarcerating masses of people.  It is about unnecessarily keeping masses of people in prison for decades.  A sentence once imposed is not thereby automatically rendered, just, fair and appropriate in perpetuity.  Ultimately, second-look mechanisms are meant to recognize and value the possibility of change and transformation, and to intervene when drastically long sentences are indefensible.

Regular readers should know that I am a big fan of second-look sentencing mechanisms, so I am a fan of this commentary even though it does not fully engage with the reality that second-look provisions in the new MPC are only critical because of the MPC's advocacy for abolishing parole mechanisms. Parole mechanisms (as well as robust use of clemency powers) served for the bulk of the 20th Century to help address many of the problems identified in this commentary. That said, I would favor a world with both a well-structured parole mechanism and second-look sentence provisions so that both the executive branch (via parole) and the judicial branch (via resentencings) can and will review the propriety and necessity of a sentence over time.

I have written about a number of second-look concerns and related issues in a a number of article through the years, and here is just a sampling of these writings:

• "Re-Balancing Fitness, Fairness, and Finality for Sentences"
• "Reflecting on Parole's Abolition in the Federal Sentencing System"
• "Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers"
• "Leveraging Marijuana Reform to Enhance Expungement Practices"
• "Turning Hope-and-Change Talk Into Clemency Action for Non-Violent Drug Offenders"
• "Exploring the Theory, Policy and Practice of Fixing Broken Sentencing Guidelines"
• "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions"

Terrific new Boston University Law Review symposium on "Misdemeanor Machinery"

I recently received in this mail a hard-copy version of the May 2018 issue of the Boston University Law Review devoted entirely to examining misdemeanors in the US criminal justice system. The full title of the symposium, which had a live component late last year, was "Misdemeanor Machinery: The Hidden Heart of the American Criminal Justice System," and the article all looks terrific.  This Editors' Foreword sets the tone:

Misdemeanor courts across the nation churn through millions of cases each year. Misdemeanors are understudied by scholars and underreported by the media. While these cases may be less significant than felonies in the eyes of the public, they have far-reaching consequences in the lives of individual defendants.  Collateral consequences often far outstrip criminal sanctions and affect defendants’ housing, employment, education, and status in the United States.  As Professor Malcolm M. Feeley aptly put it, “the process is the punishment.”

Periodically, attention is drawn to the misdemeanor courts. This tends to occur in times of discontent and unrest.  Historically, reform efforts have largely been short-lived or entirely unsuccessful.  But in the wake of public attention to misdemeanor practices in Ferguson, Missouri, the time is ripe for reform.

A dedicated group of scholars met at Boston University School of Law to explore the misdemeanor machinery on November 3-4, 2017.  The conference featured both scholars and practitioners seeking to define “misdemeanor,” empirically analyze the misdemeanor system in the United States, explore the ramifications of misdemeanor charges, identify ethical concerns, and propose meaningful reform.  The pieces in this Symposium Issue represent each of these perspectives and offer thoughtful next steps for research and reform.

And here are links to all the pieces:

How To Think About Criminal Court Reform by Malcom Feeley

The Scale of Misdemeanor Justice by Megan Stevenson and Sandra Mayson

The Innocence Movement and Misdemeanors by Jenny Roberts

The History of Misdemeanor Bail by Shima Baughman

The Prosecutor’s Client Problem by Irene Joe

Curbing Collateral Punishment in the Big Data Age: How Lawyers and Advocates Can Use Criminal Record Sealing Statutes To Protect Privacy and the Presumption of Innocence by Jenn Borchetta

Proportionality and Other Misdemeanor Myths by Eisha Jain

Toward Misdemeanor Justice: Lessons from New York City by Greg Berman and Julian Adler

Errors in Misdemeanor Adjudication by Samuel Gross

Questioning the use of actuarial risk assessment tools at sentencing

Erin Collins has this notable new commentary at The Crime Report under the headline "The Perils of 'Off-Label Sentencing'." I recommend the piece in full, and here are excerpts:

Current criminal justice reform efforts are risk-obsessed.  Actuarial risk assessment tools, which claim to predict the risk that an individual will commit, or be arrested for, criminal activity, dominate discussions about how to reform policing, bail, and corrections decisions.  And recently, risk-based reforms have entered a new arena: sentencing....  Actuarial sentencing has gained the support of many practitioners, academics, and prominent organizations, including the National Center for State Courts and the American Law Institute. [see Model Penal Code: Sentencing § 6B.09]

This enthusiasm is, at first blush, understandable: actuarial sentencing seems to have only promise and no peril. It allows judges to identify those who pose a low risk of recidivism and divert them from prison.  Society thus avoids the financial cost of unnecessarily incarcerating low-risk individuals.

And yet, this enthusiasm for actuarial sentencing ignores a seemingly crucial point: actuarial risk assessment tools were not developed for sentencing purposes.  In fact, the social scientists who developed the most popular risk assessment tools specified that they were not designed to determine the severity of a sentence, including whether or not to incarcerate someone.  Actuarial sentencing is, in short, an “off-label” application of actuarial risk assessment information.

As we know from the medical context, the fact that a use is “off-label” does not necessarily mean it is ill-advised or ineffective. And, indeed, many contend that actuarial sentencing is a simple matter of using data gleaned in one area of criminal justice and applying it to another.  If we know how to predict recidivism, why not use that information broadly? Isn’t this a prime example of an approach that is smart — rather than tough — on crime?

As I contend in my article, Punishing Risk, which is forthcoming in the Georgetown Law Journal this fall, the practice of actuarial sentencing is not that simple, nor is it wise. In fact, using actuarial information in this “off-label” way can cause an equally unintended consequence: it can justify more, not less, incarceration — and for reasons that undermine the fairness and integrity of our criminal justice system.

The actuarial risk assessment tools that are being integrated into sentencing decisions, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool, and the Level of Services Inventory-Revised (LSI-R), were designed to assist corrections officers with a specific task: how to administer punishment in a way that advances rehabilitation.  They are intended to be used after a judge has announced the sentence.  They are based on the Risk-Need-Responsivity principle, according to which recidivism risk is identified so that it can be reduced through programming, treatment and security classifications that are responsive to the individual’s “criminogenic needs” (recidivism risk factors that can be changed).

Sentencing judges, in contrast, do not administer punishment but rather determine how much punishment is due.  In doing so, they may use actuarial risk predictions to advance whatever punishment purpose they deem appropriate.  While they may decide to divert a low-risk individual from prison in order to increase their rehabilitative possibilities, they may also decide to sentence a high-risk individual more harshly — not because doing so will increase her prospects of rehabilitation, but because it will increase public safety....

The tools measure risk based on a range of characteristics that are anathema to a principled sentencing inquiry, such as gender, education and employment history, and family criminality. Perhaps consideration of these factors makes sense if the predictive output is used to administer punishment in a way that is culturally competent and individualized.

But in the sentencing context, it allows the judge to punish someone more harshly based on a compilation of characteristics that are inherently personal and wholly non-culpable, and often replicate racial biases that pervade other areas of the criminal justice system.  In other words, actuarial sentencing allows judges to defy the well-established tenet that we punish someone for what they did, not who they are....

Incorporating these tools into sentencing conflates recidivism risk, broadly defined, with risk to public safety. If we want to reduce our reliance on public safety, we must refine—rather than expand — the risk that counts for sentencing purposes.

Some of many prior related posts with links to articles and commentary on risk assessment tools:

• "Punishing Risk"
• "Principles of Risk Assessment: Sentencing and Policing" 
• "Assessing Risk Assessment in Action"
• "Moneyball Sentencing"
•  "Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law"
• "The Use of Risk Assessment at Sentencing: Implications for Research and Policy"
• "In Defense of Risk-Assessment Tools" 
• "Risk and Needs Assessment: Constitutional and Ethical Challenges"
• "Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"

Seven years in development, Pennsylvania task force issues huge report on state's (dormant) capital punishment system

As reported in this local press article from Pennsylvania, a "long-awaited report reviewing the state's death penalty has been released that could affect the death penalty moratorium that Gov. Tom Wolf imposed shortly after taking office in 2015."  Here is more:

The 270-page report, commissioned by a 2011 Senate resolution and compiled by the Pennsylvania Task Force and Advisory Committee on Capital Punishment along with the Justice Center for Research at The Pennsylvania State University and the Interbranch Commission on Gender, Racial and Ethnic Fairness, evaluates the pros and cons of the state's capital punishment law.

Specifically, it was charged with looking at the cost, bias, impact on and services for family members of death penalty inmates; mental illness, counseling, alternatives, and more. Work began on the study in 2012.  It was to have been completed by the end of 2013. However, delays in appointing members and in information gathering as well as conflicting work schedules of task force members bogged down the process, according to Glenn Pasewicz, executive director of the Joint State Government Commission, which oversaw the task force and advisory committee's work.

Despite the report's completion, don't expect an immediate decision by Wolf on whether the moratorium will be lifted. He has indicated the moratorium will remain in place until the recommendations and concerns that the report raises are satisfactorily addressed, his spokesman J.J. Abbott said.

Wolf's Republican gubernatorial opponent Scott Wagner has said he supports the death penalty and indicated in February he would pursue a mandatory death penalty for any school shooter who kills someone although legal analyst say laws like that have been ruled unconstitutional.

Pennsylvania has a death penalty law on the books since 1978, but its death row has shrunk to 149 men and only three people have been executed since capital punishment was reinstated in the 1970s. All three had voluntarily relinquished their appeals. The most recent execution was in 1999 when Philadelphia torture killer Gary Heidnik was put to death. The last time an inmate was executed involuntarily in Pennsylvania was 1962.

Penn State's Justice Center for Research, which conducted a study that was incorporated into this report, concluded death sentences are more common when the victim is white and less common when the victim is black. Among other findings, that study indicated prosecution of death penalty cases varies widely by county and defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.

Marc Bookman, a longtime public defender and co-director of the Atlantic Center for Capital Representation, issued an immediate reaction to the study's findings. He said the study confirms his belief that life without parole is "fairer, quicker, and more cost-efficient than capital punishment."...

But the Pennsylvania District Attorneys Association President John Adams' initial reaction to the report suggested it was not an objective look at the issue and fails to give proper consideration of victims of the crimes that result in death sentences as well as supporting data that suggests capital punishment is not disproportionately targeted against minorities.

The full massive report is available at this link, and it would likely take me the rest of the day just to fully and fairly consume the reports executive summary (which itself runs 30+ pages).  For students of the modern administration of the death penalty, I see a lot of interesting and important work within this report.  But, as the quotes in the press article reveal, I doubt this massive undertaking is going to change many (or any) personal or political perspectives on the application of the ultimate punishment in Pennsylvania.  

"Outraged By Kids In Cages? Look At Our Entire Juvenile Justice System."

The title of this post is the headline of this notable new HuffPost commentary authored by lawprof Cara Drinan, who is the author of The War on Kids: How American Juvenile Justice Lost Its Way (and who will be guest-blogging here come this August). Here are excerpts:

Last week, the nation witnessed an abrupt reversal from the White House. After claiming for days that he did not have the authority to address the family separation crisis at the border, President Donald Trump appeared to do just that with the stroke of a pen....

Trump’s reversal this week is progress; it’s a step in the right direction away from the inhumanity that the nation witnessed at the border. But let’s also be clear: There are vulnerable kids in cages in every state across America whose cases will not be affected by the president’s new order. In fact, on any given day there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons.

Despite inventing the juvenile court model in the late 19th century, the United States today is an international outlier in the severity of its juvenile justice practices. Today, every jurisdiction has some provision that permits a child to be charged as if they were an adult, and 23 states set no minimum age for employing this legal fiction.

Juveniles convicted in adult court are subject to lengthy mandatory minimums that were drafted with adults in mind. Juveniles can be housed in adult correctional facilities despite being extremely vulnerable to the risks of sexual and physical assault in those locations. Youth are subject to conditions of confinement that were designed for the most dangerous adult offenders, including mechanical restraints and even solitary confinement. Until 2005, we were the only developed nation to execute people for juvenile crimes, and today we are the only country that sentences children to die in prison.

Just like the migrant children crossing the border with their parents, American youth accused of a crime are typically traumatized and vulnerable. Our juvenile justice practices have hit poor, minority communities the hardest. Black youth are five times as likely as white youth to be detained, even as overall detention rates have fallen....

As we seek an end to family separation and the horrors of kids in cages at border facilities, we should also take a moment to reflect on our own domestic practice of keeping kids in cages. We should urge lawmakers to enact age-appropriate sentencing laws that reflect what brain science tells us: that juvenile brains really are different and that most kids simply outgrow delinquent tendencies. At the same time, we should offer education, substance-abuse treatment and therapy to those kids who enter the system rather than simply warehousing them and exacerbating their underlying trauma.

Just like the children of asylum-seekers crossing into America, juveniles accused of a crime are deserving of care and solicitude rather than condemnation and cruelty.

Looks like not much for criminal justice fans as SCOTUS winds down its 2017 Term

The US Supreme Court last week, on Monday and Friday, handed down the last five criminal cases that I had been watching for this SCOTUS Term.  With six other cases still to resolve, the Term is now about to wrap up on a "civil" note, and that "civil" theme persists though today's order list granting certiorari on seven new cases.  All seven of the new cases added to the SCOTUS docket for next year are civil cases.  Bummer.

Criminal justice fans looking for something from SCOTUS can perhaps get excited by ten GVRs: five based on Rosales-Mireles v. United States, four based on Sessions v. Dimaya, and one based on McCoy v. Louisiana.  Also, the end of the order list includes a short statement respecting the denial of certiorari by Justice Sotomayor, joined by Justice Ginsburg, lamenting how the Eleventh Circuit handed a capital habeas petition.

UPDATE:  Readers might be particularly interested in one high-profile case on the list of certiorari denials.  This AP piece provides the story under the headline "Supreme Court declines to hear case of 'Making a Murderer' subject Brendan Dassey."

Can we predict how federal immigration crackdowns will impact the modern drug war?

The question in the title of this post is prompted by this USA Today piece headlined "DOJ: Trump's immigration crackdown 'diverting' resources from drug cases." Here are excerpts:

Federal prosecutors warned they were diverting resources from drug-smuggling cases in southern California to handle the flood of immigration charges brought on by the Trump administration’s border crackdown, records obtained by USA TODAY show.

Days after Attorney General Jeff Sessions instructed prosecutors to bring charges against anyone who enters the United States illegally, a Justice Department supervisor in San Diego sent an email to border authorities warning that immigration cases “will occupy substantially more of our resources.”  He wrote that the U.S. Attorney’s Office there was “diverting staff, both support and attorneys, accordingly.”...

Sessions last month ordered federal prosecutors along the southwest border to bring criminal charges against every adult caught entering the United States illegally, a “zero tolerance” push meant to deter migrants. Those cases typically are seldom more than symbolic — most of the people who are charged are sentenced to no additional jail time and a $10 fee — but they have served as the legal basis for separating thousands of children from their parents at the border.

The border crackdown has produced a high-speed assembly line of minor cases in federal courts from California to Texas, more than doubling the caseloads there.  This month alone, USA TODAY identified more than 4,100 migrants who were charged with minor crimes after crossing into the United States from Mexico.

Kelly Thornton, a spokeswoman for the U.S. Attorney’s Office, said in a statement that the Justice Department “has given our district the necessary resources -- including 10 additional prosecutor positions plus at least five Department of Defense attorneys -- to prosecute all of these crimes.”  She said the number of smuggling cases prosecuted there is on track to go up this year.  Still, there are signs that border authorities are seeking to prosecute drug smugglers in state courts instead, even though the possible sentences typically are harsher in the federal system.

The District Attorney’s office in San Diego said Friday that the number of cases submitted to them by border authorities had more than doubled since the administration started its border crackdown.  Spokeswoman Tanya Sierra said Homeland Security agents referred 96 drug cases to the office between May 21 and June 21, compared to 47 over the same period last year.  Most of the cases involved more than a kilogram of drugs, Sierra said.

Meanwhile, the number of people charged in federal court has dropped since the start of the administration’s zero-tolerance push, said Reuben Cahn, the chief federal public defender in San Diego....

USA TODAY examined 2,598 written judgments in border-crossing cases filed in federal courts along the border since mid-May.  In nearly 70 percent of those cases, migrants pleaded guilty and immediately received a sentence of time served, meaning they would spend no additional time in jail.  Another 13 percent were sentenced to unsupervised probation, including a condition that they not illegally re-enter the United States.  In both cases, that meant they would immediately be returned to immigration officials to be processed for deportation, leaving them in essentially the same position as if they had not been prosecuted.

This newspaper analysis highlights just some ripple effects of any significant change in federal prosecutorial priorities: with more resources developed to federal immigration cases, there may be fewer federal drug cases brought; but more cases may be handed over to state authorities.  And, in various settings involving non-citizen subject, the results of state or federal prosecution may be impacted by the fact that deportation will follow any conviction.

Remarkable tale of how uncertain criminal laws and their enforcement can produce extraordinary punishment inequities

I understand concerns about the potential for sentencing disparities that can arise from broad judicial discretion, but I have always noticed how many significant inequities can result from many other aspects of criminal case processing.  In this recent post, I flagged this new remarkable series produced by Florida newspapers documenting how prosecutors are responsible for locking up defendants of different races for much different periods.  And this morning my local newspaper has this remarkable story, headlined "Two bath-salts prosecutions lead to far different results," reporting on two similar defendants in Ohio getting remarkably different outcomes: one walking free and the other sentenced to 35 years in prison!  Here are the details:

Both men operated retail stores within blocks of each other in the Short North area. Both were arrested in 2012 and charged with selling bath salts, a synthetic hallucinogen.  One walked free, his case dismissed by a Franklin County judge.  The other, whose case was assigned to a different judge, was convicted and sentenced to 35 years in prison, with no chance for parole....

For Soleiman Mobarak, the man sent to prison, “it’s just a matter of bad timing and bad luck,” said his attorney, Robert Behal. “Hopefully, our system is better than that, where it’s not a matter of luck whether you get 35 years or zero.”

At one point, Mobarak, 35, was set free. In July 2015, 13 months after he was sent to prison, the Franklin County Court of Appeals overturned his conviction.  A three-judge panel ruled that selling and possessing bath salts and other designer drugs known as controlled-substance analogs was not a crime in Ohio when undercover investigators purchased them from Mobarak at his East 5th Avenue convenience store in May, June and July 2012.

Common Pleas Judge Laurel Beatty Blunt had reached a similar conclusion when she dismissed a bath-salts case against Thomas C. Smith in February 2014.  The appeals court upheld Beatty Blunt’s ruling in December 2014.  Smith, 63, who owned three shops on North High Street, and Mobarak both were swept up in a sting operation conducted by the Franklin County Drug Task Force, which was targeting the sale of synthetic designer drugs.

In both cases, the appeals court found that controlled-substance analogs, including bath salts, didn’t become illegal until the Ohio legislature included them in the criminal drug-offense statutes through a bill that took effect Dec. 20, 2012.  The Franklin County Prosecutors Office appealed those decisions to the Ohio Supreme Court. 

The Supreme Court declined to hear the appeal of Smith’s case in October 2015, which put an end to any efforts to prosecute him....  But before the Supreme Court got around to making a decision on the Mobarak appeal, the 12th District Court of Appeals ruled in a Warren County case that controlled-substance analogs were illegal in Ohio as of October 2011.  When that ruling was appealed to the Supreme Court, the justices had two pending cases in which appeals courts had reached conflicting opinions about the issue.  The justices chose to hear the cases, and in December 2016 they agreed with the 12th District court — controlled-substance analogs were criminalized in October 2011, before the sales made by Mobarak and the Warren County defendant.

Franklin County prosecutors filed a motion asking the trial court to revoke Mobarak’s bond and return him prison to complete his sentence.  The judge who sentenced Mobarak, Pat Sheeran, had since retired. His replacement, Judge Jeffrey Brown, inherited the case. June 12, after months of court filings, Brown issued what appeared to be a reluctant ruling.  Twice in his 38-page decision, Brown wrote that he was “troubled” by Mobarak’s situation. “The court’s hands are tied, however,” by the Supreme Court ruling, he wrote. “This court has no authority to modify the sentence ... Mobarak must begin to serve the remainder of his sentence.”

Had the conflicting case from Warren County not intervened, the Supreme Court presumably would have declined to hear the Mobarak case, just as it had done with Smith, Behal said.  Mobarak, like Smith, would be a free man.  “The passage of time created disparate results, and that’s tough to take,” Behal said.

Prosecutor Ron O’Brien has a different view of the fates of the two defendants.  “It’s unfortunate that Smith evaded responsibility just because of timing, but that does not mean Mobarak should evade responsibility,” O’Brien said. “Mobarak shouldn’t benefit from what was a wrong decision from the beginning.  Everybody knew how bad bath salts were, including the people who were selling them.  They were just playing games with the classifications.  Luckily, the Supreme Court finally straightened it out.”