« October 14, 2018 - October 20, 2018 | Main | October 28, 2018 - November 3, 2018 »

October 27, 2018

Following the Charleston script, will federal authorities take the lead in capital prosecution of anti-Semitic mass murderer Robert Bowers?

Shortly after Dylann Roof expressed horrid hatred by slaughtering nine people at house of worship in Charleston in June 2015, I wondered in this post whether the state or feds should be in charge of capitally prosecuting a crime that reflected what Nikki Haley then called the "worst hate that [she has] seen — and that the country has seen — in a long time."  Though it took federal authorities nearly a year to decide to move forward with a capital prosecution in May 2016, not too long thereafter a federal jury returned a death sentence in January 2017.

Sadly, if measured in terms of numbers killed, Dylann Roof's crime has now been passed repeatedly. Around this time just one year ago, Devin Kelley murdered 26 worshipers at church in Texas before being killed. And now, as this Fox News report details, another gunman filled with hate "opened fire in a Pittsburgh synagogue on Saturday morning, killing 11 people and injuring six others, including four police officers, before being taken into custody."  Here is more:

Multiple law enforcement officials identified the suspect in the shooting as Robert Bowers, 48.

Police Chief Scott Schubert said that two police officers were hit during initial contact with the shooter and that two SWAT team members were also struck “during an engagement inside the building.” He confirmed that all four law enforcement officials are in stable condition....

As officials searched for a motive for the brazen attack, which took place on Shabbat, the Jewish Sabbath, distubing details emerged.  Earlier, Hissrich said the episode fell under the category of a hate crime, and would receive a federal investigation.

Indeed, the gunman is said to have shouted that "all Jews must die" as he sprayed bullets indiscriminantly, according to KDKA-TV.  Josh Shapiro, the attorney general of Pennsylvania, said the "shooter claimed innocent lives" at a baby naming ceremony on Shabbat, what is trqaditionally the busiest of days for synagogues.

With other media reporting that Robert Bowers had a social media presence filled with anti-Semitic comments, this horrible case strike me as remarkably parallel to the Charleston church shooting in terms of the offense and the offenders (though the ages of the offenders are distinct). Especially with the current Trump Administration claiming to be even more supportive of the death penalty than the past Obama Administration, I would expect to see the federal capital prosecution script to be followed here as it was in the Roof case. And having the feds take the lead may make even more sense because the death penalty in Pennsylvania, though on the books, has been moribund for decades.

UPDATE: Not long after I published this post, I saw this new statement from Attorney General Jeff Sessions, which included these points:

These alleged crimes are reprehensible and utterly repugnant to the values of this nation. Accordingly, the Department of Justice will file hate crimes and other criminal charges against the defendant, including charges that could lead to the death penalty....

The Department of Justice will continue to support our state and local partners and we will continue to bring the full force of the law against anyone who would violate the civil rights of the American people.

October 27, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

October 26, 2018

Attorney General Sessions indicates pipe bomb suspect Cesar Sayoc charged with five federal crimes and facing "only" 48 years in prison

Deal enough marijuana, as the Life for Pot website highlights, and you can get sent federal prison for life.  But, according to this statement by Attorney General Jeff Sessions, the fellow arrested for sending pipe bombs to a dozen prominent politicians and others is, at least for now, only facing five criminal charges and a maximum sentencing exposure of 48 years.  Here are excerpts from the AG's comments today:

Over the past week, more than a dozen suspicious packages have been sent through the United States Postal Service to a media outlet, a Hollywood actor, and at least seven high-ranking current and former political leaders in the Democratic Party.

This is utterly unacceptable. Political violence — or the threat of violence — is antithetical to our vigorous system of self-government. It is a threat to that respect for law and process that allows our people to accept legislation, elections, and court rulings with which we do not agree.

This is the central feature of our system of government: you advocate for your beliefs enthusiastically but we peaceably and lawfully comply with the results. Please know that from the beginning this investigative team has made this matter a top priority, focusing their great talents and expertise on neutralizing this threat. They have moved swiftly and professionally, using extraordinary technical expertise, to apprehend the one alleged responsible.  This is a demonstration of the skill, the capability, and determination of our American law enforcement.

So I am pleased to participate in this announcement that a suspect is in the custody of the FBI.  I want to remind everyone that the defendant in this case — as in every case — is innocent until proven guilty.

He has been charged today with five federal crimes, including interstate transportation of an explosive, illegal mailing of explosives, threats against former presidents and certain other persons, threatening interstate communications, and assaulting current and former federal officers.

For these charges, the defendant faces up to 48* years in prison. [*An earlier version of these remarks incorrectly stated 58 years.]

These charges may change or expand as the investigation continues.

This is a law-and-order administration.  We will not tolerate such lawlessness, and especially not political violence....

I want to reiterate that the defendant in this case is innocent until proven guilty. But let this be a lesson to anyone — regardless of their political beliefs — that we will bring the full force of law against anyone who attempts to use threats, intimidation, and outright violence to further any agenda.

We will find you.  We will prosecute you to the fullest extent of the law.

Regular readers of this blog should know I am much more troubled by people getting sentenced to "life for pot" than I am by pipe bomb suspect Cesar Sayoc facing "only 48" years in federal prison. Assuming the feds have the right guy, I would predict he ends up facing a lot more charges and that he ends up pleading guilty in the hopes of reducing his sentencing exposure. But what the feds might still charge and ultimately accept in any deal will be interesting to watch.

October 26, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet suprevised release!!

I am excited to report that the Supreme Court this afternoon, via this order list, added an interesting sentencing case to its docket by granting cert in United States v. Haymond, 17-1672, a case from the Tenth Circuit in which the defendant prevailed on the claim that the procedures used to sentence him following his supervised release violation was unconstitutional.  The Tenth Circuit opinion below in Haymond is available at this link, and the federal government's cert petition posed this "Question Presented":

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

Seeking (unsuccessfully) to avoid a cert grant, the defendant's brief in opposition to cert framed the issue of the case this way: 

Following his conviction for possession of child pornography, a Class C felony that carried a statutory sentencing range of zero to ten years, a district court judge in a revocation hearing specifically found by only a preponderance of the evidence that Andre Haymond had violated the terms of his supervised release by committing a “second sex offense” as set forth in 18 U.S.C. 3583(k).  The statute required the district court to impose a sentence of not less than five years up to life in prison for commission of the new crime, rather than the zero to two-year statutory range ordinarily applicable for revocation in Class C felony cases.  Did the enhanced sentencing range carrying a mandatory minimum sentence in the revocation proceeding violate the Court’s longstanding jurisprudence guaranteeing a defendant charged with a serious criminal offense to a right to a jury trial under the Fifth and Sixth Amendments?

Given that there are now only two members of the Supreme Court who are generally hostile to Apprendi rights under the Fifth and Sixth Amendment (Justices Alito and Breyer), I do not think it is a given that this grant of cert means that the Justices are eager to reverse the ruling below. But we really do not know just how far any of the other Justices, and especially the new guys Gorsuch and Kavanaugh, are willing to take the Fifth and Sixth Amendment in the sentencing universe, and so I am disinclined to make any predictions on any votes at this point (save for expected Justice Alito to be his usual vote against a criminal defendant).

October 26, 2018 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (6)

Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

6a00d83451574769e201b7c9134b4d970b-320wiI recently received a kind offer from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, for an update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic.  Alison's update is so detailed and interesting, I will need three posts to report all she has to report.  This first one covers what she calls "sentencing Victories":

The Federal Criminal Justice Clinic that I founded and direct at the University of Chicago Law School has engaged in systemic litigation against fake stash house robbery cases in Chicago. Our litigation has resulted in dramatically lower sentences for scores of clients and is changing the law around the country.

Sentencing Victories

Several years ago, the Federal Criminal Justice Clinic (FCJC) filed pretrial Motions to Dismiss for Racially Selective Law Enforcement on behalf of 43 defendants charged in the 12 pending fake stash house cases in Chicago, alleging that the ATF had unconstitutionally discriminated on the basis of race in targeting people of color.  The FCJC approached the legal issue of racially selective law enforcement in an innovative fashion by coordinating across cases and bringing empirical evidence to bear.  See ATF Sting Operation Accused of Using Racial Bias in Finding Targets—the Majority of Them Being Minorities, Chicago Tribune (Mar. 3, 2017).  Last December, the 9 federal judges presiding over these cases held a joint evidentiary hearing on our motions, an unprecedented occurrence. See Was Racial Profiling Behind ATF Stash House Stings? Chicago Judges to Take Up Landmark Case Today, Chicago Tribune (Dec. 13, 2017); Court Decision Could Force Changes to ATF’s Undercover Operations, NPR: Morning Edition (Dec. 15, 2017).

When the FCJC began this litigation, our clients were facing 15-to-25-year mandatory minimums and far higher sentences under the federal Sentencing Guidelines.  In the wake of the hearing, the U.S. Attorney’s Office in Chicago made highly unusual plea offers in all of the cases, offering to dismiss all of the remaining mandatory-minimum gun and drug charges. See Under Pressure by Judges, Prosecutors to Offer Plea Deals in Controversial Drug Stash House Cases, Chicago Tribune (Feb. 21, 2018).

Of the 43 clients who participated in our selective enforcement challenge, 34 have now been sentenced.  Fully 27 of the 34 received sentences of “time served,” despite requests by the government for within-Guidelines sentences that ranged as high as 12 years.  The remaining clients received significantly below-Guidelines sentences.  The chart linked here depicts these incredible outcomes and is being filed publicly with the judges to show that time-served sentences are now the norm in these cases.  As a result of the plea offers and time-served sentences, clients on bond were allowed to remain in the community, clients in custody were promptly released, and our clients collectively were spared hundreds of years in prison.  These remarkable results are attributable to the tremendous efforts of everyone in the FCJC: Professor Erica Zunkel (the Associate Director of the FCJC), Professor Judith Miller, and the many students who worked on the litigation.

These extraordinary sentencing outcomes show the power of litigating creatively and demonstrate that sometimes the fight alone can bring about systemic change, regardless of the legal outcome.  The FCJC did not win the motions to dismiss, but the U.S. Attorney’s Office and the ATF have entirely stopped bringing fake stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere.  The FCJC’s litigation also changed the judges’ perspective on these cases.  Although Chief Judge Castillo “reluctantly denied” the FCJC’s Motion to Dismiss in his two stash house cases, he wrote: “Our criminal justice system should not tolerate false stash house cases in 2018.”  United States v. Brown, 299 F. Supp. 3d 976, 984 (N.D. Ill 2018).  In particular, he said, “The inherent problems of this District’s false stash house cases must be seen through the lens of our country’s sad history of racism,” id. at 985, and implored the government to “relegat[e]” them to “the dark corridors of our past,” id. at 984; see also Editorial: Even Fighting Capone, Feds Knew Better Than to Resort to Cheap Tricks, Chicago Sun Times (Mar. 13, 2018).  In another FCJC case, Judge Gettleman issued a sentencing opinion “express[ing] this court’s disgust with the ATF’s conduct in this case.” United States v. Paxton, 2018 WL 4504160, at *2 (N.D. Ill. Sept. 20, 2018).

October 26, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

October 25, 2018

"How ‘End Mass Incarceration’ Became a Slogan for D.A. Candidates"

The title of this post is the title of this notable new New York Times article. Here is how the lengthy piece gets started:

The Dallas County district attorney, Faith Johnson, often reminds voters that she recently won a rare murder conviction against a white police officer who shot into a car full of teenagers, killing a black 15-year-old boy. “They couldn’t get that conviction in New York. They couldn’t get it in California. They couldn’t get it in Ohio,” Ms. Johnson, a Republican running to remain in office in November, told the mostly black crowd at a recent candidate forum at the African American Museum. “We got it here in Dallas County.”

But then her Democratic opponent took the microphone and pledged to be even tougher on the police. And he promised that if elected, he would reduce the number of Dallas County residents who end up behind bars. “In the first 90 days, I’m going to give you a plan to end mass incarceration,” said John Creuzot, a former judge who hopes to unseat Ms. Johnson in November.

In the past, candidates running to be district attorney — if they were challenged at all — touted their toughness on crime. But now district attorneys’ races have become more competitive, attracting large donations and challengers running on pledges to transform the criminal justice system.

The focus on local races comes as overhaul efforts have stalled on the federal level. Attorney General Jeff Sessions has vowed to aggressively prosecute nonviolent drug crimes, and President Trump has praised policing tactics such as stop-and-frisk.

The push to rethink criminal justice practices has been embraced by liberals and some conservatives, and polls show a majority of voters favor reducing the number of nonviolent drug offenders who are sent to prison. But disagreement remains about exactly how to revamp district attorney offices, which handle most criminal cases in the country.

In Jefferson County, Ala., the Democratic district attorney candidate, Danny Carr, has floated the idea of treating the possession of small amounts of marijuana more like a traffic violation. In San Antonio, Joe Gonzales, also a Democrat, has pledged to rehabilitate more nonviolent offenders, rather than locking them up.

Others are proposing more aggressive measures. Rachael Rollins in Boston, who has no Republican challenger in November, released a list of low-level crimes, such as disturbing the peace, that she would decline to prosecute altogether.

October 25, 2018 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Supermajoritarian Criminal Justice"

The title of this post is the title of this new paper authored by Aliza Cover now available via SSRN. Here is its abstract:

Democracy is often equated with majority rule.  But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian.  The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian — historically, unanimous — approval of a jury drawn from the community.  And criminal law theorists’ expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. 

Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian, at best.  Both harsh and contested, it has lost the structural mechanisms that could ensure supermajoritarian support.  By incorporating new supermajoritarian checks and reinvigorating old ones, we could make criminal punishment consonant with first principles and more responsive to community intuitions of justice.

October 25, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Notable relists and "petitions of the week" from SCOTUSblog

Thanks to cases engaging the Double Jeopardy and Excessive Fines Clauses, the current Supreme Court Term is already rich and interesting for criminal justice fans.  But over at SCOTUSblog, recent posts about relists and petitions to watch add to the potential excitement concerning the Court's criminal docket.  It is very unlikely that the Justice will grant cert on all or even most of these cases, but even one or two grants from this bunch would make an already exciting Term that much more intriguing: 

Relists:

United States v. Haymond17-1672 (and Sperling v. United States, 17-8390)

Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

Wood v. Oklahoma17-6891 (and Jones v. Oklahoma, 17-6943)

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

Shoop v. Hill18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

New petitions to watch:

Prison Legal News v. Jones, 18-355

Issue: Whether the Florida Department of Corrections’ blanket ban of Prison Legal News violates a petitioner’s First Amendment right to free speech and a free press.

Castillo v. United States, 18-374

Issue: Whether a criminal defendant convicted of violating the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501, et seq., and subject to a mandatory minimum sentence under 21 U.S.C. § 960, is eligible for relief from that mandatory minimum under the statutory “safety valve” of 18 U.S.C. § 3553(f).

Haight v. United States, 18-370

Issue: Whether a criminal offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

October 25, 2018 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"How Jeff Sessions Is Undermining Trump’s Prison Reform Agenda"

The title of this post is the headline of this new lengthy Marshall Project piece.  I recommend the piece in full, and here are excerpts from just the first part of the article: 

In federal penitentiaries across the nation, prisoners eagerly awaiting a transfer to halfway houses say they are being told that they will have to wait weeks or months longer than they had anticipated because there is a shortage of beds at the transitional group homes.  But that’s not true.

According to inmates, halfway house staff and industry officials, scores of beds lie empty, with some estimates of at least 1,000 vacant spaces.  They remain unused due to a series of decisions that have sharply reduced the number of prisoners sent to halfway houses.  And home confinement, a federal arrangement similar to house arrest that allows prisoners to complete their sentences with minimal supervision, is being even more drastically curtailed.

The Bureau of Prisons says it is curbing overspending of past years and streamlining operations, but that doesn’t make sense.  Putting inmates in halfway houses or on home confinement is much cheaper than imprisonment.  The federal government spent almost $36,300 a year to imprison an inmate, $4,000 more compared with the cost to place a person in a halfway house in 2017, according to the Federal Register.  It costs $4,392 a year to monitor someone on home confinement, according to a 2016 report by the Administrative Office of the U.S. Courts.

Abandoning transitional supervision aligns with Attorney General Jeff Sessions’ disputed opinion that reduced prison populations during the Obama administration are to blame for a small uptick in violent crime.  As a senator from Alabama, Sessions led the charge two years ago against a bill to ease sentences, and as attorney general he has instructed prosecutors to be more aggressive in charging defendants.  But his draconian ideas are undermining his own boss’ stated preference for early release and rehabilitation programs....

And now there is evidence the Bureau of Prisons, under Sessions’ direction, is actively discouraging the use of transitional supervision even under existing rules.  The Bureau of Prisons declined interviews and would not answer specific questions, but said in a statement that the “fiscal environment” prompted a thorough review of programs, which led to ways to “most effectively use our resources.”  The agency said placements are based on each prisoner’s needs, the prison system’s ability to meet them, public safety “and the need for the BOP to manage the inmate population in a responsible manner.”...

Sen. Dick Durbin, Democrat of Illinois, who leads bipartisan efforts to reshape sentencing laws and prisoner rehabilitation, said the Justice Department had not explained to Congress the cutback in inmate transfers to transitional housing.  “Attorney General Sessions has reversed key prison reforms like reducing the use of restricted housing and private prisons and improving education opportunities and reentry services,” Durbin said in a statement.  “It makes no sense to eliminate reforms that are proven to reduce recidivism and make our communities safer.”

Since the 1960s, halfway houses have provided federal prisoners a running start before release to find work, which has been shown to help people stay crime-free longer.  A Pennsylvania state study found connections between higher rearrest rates and stints in halfway houses, while federal violations, violence and overdoses have contributed to poor public perception of the facilities.  But prisoners and their advocates say moving into a transitional residence gives inmates an incentive to avoid trouble in prison and join rehabilitative programs.

Under the Obama administration, the number of federal prisoners in halfway houses and other transitional programs boomed.  The federal government required the privately-run residences to provide mental health and substance abuse treatment, and the Department of Justice also increased access to ankle monitors so more prisoners could finish sentences in their own homes.  At the peak in 2015, more than 10,600 prisoners resided in federal halfway houses. The number of inmates in home confinement — 4,600 — was up more than a third from the year before. In all, one in 14 of the people under Bureau of Prisons supervision was living at home or in a halfway house. Since then, the population in halfway houses has dropped by 28 percent to 7,670. Home confinement is in freefall, down 61 percent to a population of 1,822.  The majority of that cut has come in just the past year. Now only one in 20 people under federal supervision is in transitional housing....

Judge Ricardo S. Martinez, who chairs the Committee on Criminal Law of the Judicial Conference of the United States, which helps write policies and guidelines for federal courts, said “we are also in the dark about those numbers.”  He said the committee is working to establish better communication with the Bureau of Prisons.  Federal judges, who can sentence defendants to halfway houses, need to know how much space is available.  Rough estimates based on the current population in halfway houses, internal memos, statements from prison officials and prison records put the number of vacant beds in the federal system anywhere from 1,000 to several times that number.  Swaths of beds lie empty even after the prison system ended contracts with 16 of its nearly 230 halfway houses, facilities described as “underutilized or serving a small population.”  Martinez, whose committee has pushed for placing more prisoners on home confinement, said that advances in tracking technology and risk assessments should alleviate public safety concerns.  “It’s a stupid waste of taxpayer money to put people in a confinement level they don’t need to be in,” the judge said.

October 25, 2018 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

October 24, 2018

Latest federal sentencing of corrupt New York pol results in former state senate leader Dean Skelos getting 51 months

This New York Post piece, headlined "Dean Skelos sentenced to more than four years in prison," reports on the latest high-profile political corruption sentencing from a state that always seeks to keep the white-collar lawyers busy. Here are the details:

Dean Skelos, once one of the most powerful men in Albany, was sentenced to more than four years in prison Wednesday for using his political office to benefit his do-nothing son — who was noticeably absent from court for his father’s day of reckoning.

Manhattan federal Judge Kimba Wood said she would’ve given the one-time state Senate majority leader less than 51 months behind bars given his advanced age, but tacked on an extra three months because she found he lied on the witness stand.  “Your repeated mischaracterizations and lies about your conduct warrant a three-month enhancement,” Wood told the 70-year-old disgraced pol.

Dean’s son, Adam Skelos, who was convicted alongside him at their retrial in July, was nowhere to be found in court, underscoring the father and son’s strained relationship. Adam will be sentenced later Wednesday afternoon.

In begging for leniency, Dean told the judge he hoped to one day repair their bond. “My son, Adam, I love him more today than yesterday,” he said, his voice cracking. “I always try to protect him and I failed. Although our relationship is strained, I hope one day it will be restored.” Dean also asked Wood to go easy on his only child. “I hope that you show him mercy so that he can be the father he wants to be,” Dean said.

The Long Island Republican, and Adam, 36, were convicted at their retrial in July of strong-arming companies seeking help from Dean into giving Adam no-show jobs and consulting gigs. The pair was first convicted in 2015, but the case was tossed on appeal — paving the way for the politician to take the stand in his own defense in July....

The feds had asked the judge — who sentenced Dean to five years after the first trial — to take it up a notch to at least six-and-a-half years. A lawyer for Dean asked for leniency, saying the case has already taken a severe toll on the once-powerful politician, including straining his relationship with Adam. Dean has also developed a drinking problem due to the stress, his lawyer said.

Adam Skelos was previously sentenced to six-and-a-half years in prison after the judge said the trial showed that he had “no moral compass.” Adam, who is expecting a second child with his fiancée next month, has also asked for leniency, saying the judge’s harsh words have forced him to seek help and to change.

As Senate majority leader, Dean Skelos served as one of the so-called “three men in a room” — the others being Gov. Andrew Cuomo and longtime state Assembly Speaker Sheldon Silver, who was sentenced in July to seven years for corruption.

October 24, 2018 in Booker in district courts, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

"Undue Influence: A Prosecutor's Role in Parole Proceedings"

The title of this post is the title of this short paper recently posted to SSRN authored by R. Michael Cassidy.  Here is its abstract:

Professor Cassidy explores what it means for a prosecutor to act as a “minister of justice” in the context of parole proceedings.  He argues that prosecutors should not perceive themselves as zealous advocates in what is essentially an administrative setting, and that prosecutors should not oppose release simply because they believe that the nature and circumstances of the crime warrant continued incarceration. 

Rather, Cassidy argues that prosecutors ordinarily should refrain from personally testifying at parole hearings, and should submit written comments to the parole board only in those rare situations where the prosecutor is in possession of otherwise unavailable information pertaining to an inmate’s post-conviction behavior that would assist the board in making an accurate legal and factual determination.  Cassidy surveys the approaches taken by parole board statutes and regulations in fifty states and discusses which of those approaches properly calibrate the scope and limits of a prosecutor’s input in release decisions.

October 24, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

October 23, 2018

Another big accounting of the big failings of the global drug war

As summarized in this CNN piece, the International Drug Policy Consortium (IDPC) has produced a big new report saying "the United Nations' drug strategy of the past 10 years has been a failure." Here is more:

The report claims that UN efforts to eliminate the illegal drug market by 2019 through a "war on drugs" approach has had scant effect on global supply while having negative effects on health, human rights, security and development. According to the report, drug-related deaths have increased by 145% over the last decade, with more than 71,000 overdose deaths in the United States in 2017 alone. At least 3,940 people were executed for drug offenses around the world over the last 10 years, while drug crackdowns in the Philippines resulted in around 27,000 extrajudicial killings.

The IDPC, a network of 177 national and international NGOs concerned with drug policy and drug abuse, is urging the UN General Assembly Special Session on Drugs to consider a different approach to narcotics strategy for the next 10 years in the run-up to a March 2019 summit in Vienna, Austria. "This report is another nail in the coffin for the war on drugs," said Ann Fordham, the Executive Director of IDPC, in a prepared statement.

"The fact that governments and the UN do not see fit to properly evaluate the disastrous impact of the last ten years of drug policy is depressingly unsurprising. "Governments will meet next March at the UN and will likely rubber-stamp more of the same for the next decade in drug policy. This would be a gross dereliction of duty and a recipe for more blood spilled in the name of drug control."

Farhan Haq, deputy spokesman for the UN Secretary-General, responded to CNN's Richard Richard on Monday. "Obviously, there have been significant successes and failures in dealing with the problem of drug trafficking, and we've made that clear over the many remarks we've made about the drug problem each year," he said....

In 2017, Mexico, for example, recorded its most murderous year on record due to soaring levels of drug-related violence. As previously reported by CNN, the Mexican National Institute of Statistics and Geography revealed that there were 31,174 homicides over the course of the year -- an increase of 27% over 2016. In addition to fueling violence, the existing policy of criminalizing drug use has also resulted in mass incarceration, the report said. One in five prisoners are currently imprisoned for drug offenses, many on charges related to possession for personal use....

"What we learn from the IDPC shadow report is compelling. Since governments started collecting data on drugs in the 1990s, the cultivation, consumption and illegal trafficking of drugs have reached record levels," wrote Helen Clark, former Prime Minister of New Zealand and a member of the Global Commission on Drug Policy, in the report's foreword. "Moreover, current drug policies are a serious obstacle to other social and economic objectives and the 'war on drugs' has resulted in millions of people murdered, disappeared, or internally displaced."

The full report is available at this link.

October 23, 2018 in Drug Offense Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Should a state judge be campaigning against a state criminal justice reform initiative when talking to potential jurors?!?!?

I have been more than a bit troubled by the fact that Ohio Supreme Court Chief Justice Maureen O'Connor has been serving for months as the campaigner-in-chief against an interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1 (and the Drug Enforcement and Policy Center at OSU has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1).  One of my concerns has been that her visible role has put her in lock-step with advocacy by Ohio's prosecutors, and also seemingly has made many Ohio state judges feel comfortable speaking out against Issue 1 while making it hard for other state judges to feel comfortable speaking out for Issue 1.

Whatever one thinking about a judge or justice discussing their views on a ballot initiative in public, I am especially troubled by this story out of Cleveland that prompts the question in the title of this post.  The piece is headlined "Cuyahoga County judge politicks against Issue 1 to potential jurors inside courthouse," and here are the details:

A Cuyahoga County judge who is a vocal critic of a sentencing reform initiative on the ballot for the Nov. 6 election has taken his opposition to residents forced to show up for jury duty at the Justice Center.

Multiple times in recent weeks, Common Pleas Court Judge David Matia has used the time usually reserved for a judge to welcome the hundreds of potential jurors to their mandatory civic duty to instead deliver a spiel in which he explicitly urged them to vote against Issue 1.

Administrative and Presiding Judge John J. Russo does not object to Matia's actions, which Matia insisted in a Monday phone interview did not violate any judicial ethics rules. Judges are allowed to take public stances on issues that "directly affect the administration of justice," and it is up to a particular judge to determine when and where it is appropriate to make those comments, according to a 2002 advisory opinion by the Ohio Supreme Court's Board of Commissioners on Grievances and Discipline.

"Whether it's a group of jurors or a bingo hall, it doesn't matter," Matia said. "The opportunity to educate the public should not be ignored by members of the judiciary."

But Matia's choice to deliver the message as part of the regular duties of his seat on the bench -- to a group of people with no choice to leave -- raises serious ethical questions, a legal expert said. "He's got a right to announce his views," Charles Geyh, a law professor at Indiana University, told cleveland.com. "What I don't like is he is using his judicial office as a vehicle for addressing a captive audience. That's where he's abusing the prestige of his judicial office."...

Matia said he has spoken to potential jurors three times. He said he has done so in addition to the judge on the schedule twice, and spoke on Wednesday in place of the judge who was supposed to address the room when that judge did not show up. He said he hit the usual talking points he hits when he speaks in public about the issue, and urged a "no" vote. "It's not a political issue," he said. "This is a matter directly affecting the administration of justice, and frankly it's our duty to educate the public on this issue and how it will affect the administration of justice."

Russo said in a statement through a spokesman that he "was made aware that his colleague has been speaking to jurors" about the measure. "Judge Matia is an elected Cuyahoga County official and is speaking to constituents about an issue that impacts the administration of justice in the state," Russo said in the statement.

Rick Dove, director of the court's Board of Professional Conduct, said this situation is not explicitly spelled out in any judicial ethics rules, or addressed in any advisory opinions. Dove pointed to the 2002 opinion, which came in response to a complaint filed over a judge's public endorsement of a proposed constitutional amendment that dealt with expanding the use of drug treatment in sentencing....

The board wrote that judges could address certain legal issues that affect the administration of justice, and that it was not inappropriate for judges to do so in newspaper editorials, radio and TV ads, public forums and other mediums. "No rule within the Ohio Code of Judicial Conduct, provides a list of appropriate forums for judicial speech," the board wrote. "A judge must exercise his or her discretion regarding appropriate forums for speaking to the public regarding the law, the legal system, and the administration of justice."

But Matia's advocacy did not occur at a forum or a public meeting where people came voluntarily to hear thoughts about the issue. It came inside the courthouse, to a group of people who had been summoned to perform a mandatory government duty. Matia carried the authority of being a judge inside the courthouse and acted within the scope of his judicial office when he took the stance, all to an audience who was not free to leave, Geyh argued. "He seems to be exploiting his role as judge to create this opportunity to vent his ideological point of view with respect to this view of legislation," Geyh said.

Matia called his advocacy at the courthouse "a non-issue, ethics wise." He sent a copy of the 2002 opinion to cleveland.com Monday in a text message after the phone interview for this story. "Just remember to vote no on [Issue] 1," Matia wrote, adding a smiley-face emoticon.

I am squarely with Professor Geyh on this one, and I have concerns about Judge Matia's actions that go beyond the specifics of talking about Issue 1 to a captive audience inside a courthouse. At least some of these prospective jurors are going to be asked to participate in cases that might involve applications of the laws and policies that are the subject-matter of Issue 1, and I worry about how the judge's comments may be impacting the jury pool beyond how the judge has become a campaigner for a partisan position in the courthouse.

Prior related posts:

October 23, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Terrific discussions of guideline commentary and agency issues in the Sixth Circuit (while a defendant loses appeal again)

Yesterday a Sixth Circuit panel handed down an interesting and intricate opinion in US v. Havis, No. 17-5772 (6th Cir. Oct. 22, 2018) (available here), that likely will be of even greater interest to administrative law gurus than to sentencing fans.  The start of the opinion for the court authored by Judge Thapar frames and sets up what follows:

What we do is sometimes less important than how we do it.  The United States Sentencing Commission has the power to promulgate the Sentencing Guidelines.  But Congress has limited how it may exercise that power.  Those limits are important — not only because Congress thinks so, but because they define the Commission’s identity in our constitutional structure.

Jeffery Havis claims that the Commission has disregarded those limits.  And he may have a point.  But a prior published decision of our court requires that we reject this part of his argument.  Following that precedent and finding Havis’s other arguments unavailing, we affirm his sentence

For the defendant, what follows must be especially discouraging: he loses the appeal 2-1 ,and the two votes against him seem to agree that his arguments are compelling but foreclosed by circuit precedent that can only be reviewed via an en banc proceeding. For administrative law gurus, there are many pages with thoughtful judges debating the pros and cons of whether Auer deference presents constitutional problems in this context. As a sentencing fan, I found this passage from Judge Thapar (among many others in all the opinions) notable:

[I]n criminal cases, ambiguity typically favors the defendant.  If there is reasonable doubt, no conviction. In re Winship, 397 U.S. 358, 364 (1970). And if a statute is ambiguous, courts construe the statute in the criminal defendant’s favor.  E.g., United States v. Santos, 553 U.S. 507, 514 (2008) (describing the “venerable” rule of lenity).  But not here. Auer would mean that rather than benefiting from any ambiguity in the Guidelines, Havis would face the possibility of more time in prison than he otherwise would.  So in this context, Auer not only threatens the separation of powers but also endangers fundamental legal precepts as well.  See Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 732–33 (6th Cir. 2013) (Sutton, J., concurring) (highlighting problems with requiring the rule of lenity to bow to Auer deference); see also Perez v. United States, 885 F.3d 984, 990–91 (6th Cir. 2018) (suggesting that the rule of lenity might apply in considering sentencing enhancements under the Armed Career Criminal Act).

For both sentencing and administrative law fans, Havis is a must read.

October 23, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Connecting the Disconnected: Communication Technologies for the Incarcerated"

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

Incarceration is a family problem — more than 2.7 million children in the United States have a parent in jail or prison.  It adversely impacts family relationships, financial stability, and the mental health and well-being of family members.  Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates.  However, systemic barriers significantly impact the ability of inmates and their families to communicate.

Both traditional and newly developed technological communication tools have inherent advantages and disadvantages.  In addition, private contracting of communication services too often leads to abusive practices and conflicts of interest for facilities.  Although technology plays a critical and expanding role in communications, a comprehensive evaluation of the methods and policies surrounding inmate communications is needed.  Efforts to address incarceration rates, education, and research gaps, along with an understanding of the potential and limitations of communication technologies, are critical to the development of policy initiatives.  These tools should be employed with a regulated approach to choosing and contracting for communication services to effectively reduce barriers and improve outcomes.

October 23, 2018 in Prisons and prisoners, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

October 22, 2018

Two notable commentaries in support of FIRST STEP Act from inside the Beltway

The Washington Examiner and The Washington Times are both right-leaning papers, which only adds to the import of these two recent commentaries in these publications:

"Our cruel and inhumane prison system is so close to reform" by Mark Vargas.  An excerpt:

Thanks to former President Bill Clinton, the 1994 crime bill created an America that was less compassionate, less forgiving, at times inhumane, and sent many nonviolent, first-time offenders away to prison for a very long time.

At the time, supporters of the Clinton crime bill argued that such measures would reduce crimes and keep our streets and neighborhoods safer. But in the end, the legislation only accelerated mass incarceration, stripped inmates of their dignity, and created the false narrative that everyone in prison was evil and a danger to society. It is why the NAACP in 1993 referred to the legislation as a “crime against the American people.”

But thanks to the leadership of President Trump, the discussion about prison and sentencing reform is back on the table. In a recent poll conducted by the University of Maryland, a majority of the country support the idea of criminal justice reform as well.

For Attorney General Jeff Sessions and others to make the argument that prison reform will make our country less safe exposes their ignorance and how out of touch they are. As creatures of the swamp, they care more about maintaining power than making a difference. Sessions' comments show just how political the Justice Department has become under his leadership.

"Justice demands passage of First Step bill to rehabilitate lives" by Rebecca Hagelin.  An excerpt:

I’ll never forget the heart-wrenching scene from my visit to the women’s prison. I sat in silence. For the first time, I pondered the unintended consequences of lengthy mandatory prison sentences for drug offenses. Don’t get me wrong: I’m a conservative, and I’m “tough on crime.” I just realize that locking up moms and dads for years for nonviolent drug offenses has an unending ripple effect, doing more damage to society than good.

Under current federal laws, many nonviolent drug offenses have mandatory sentences of two decades. The full scope of the consequences of such lengthy sentences unfolds every day in families across the country. The tiny girl who threw her arms around her mommy is an adult by now, and I often wonder if her mom has returned home yet.

Sadly — incredibly — our federal prison system treats such inmates as the forgotten men and women. In so doing, their children have become forgotten too. With little or no vocational training, drug rehabilitation programs or opportunities to receive education, these inmates eventually return to society estranged from their families and devoid of hope.

The result? Within just three years 40 percent will commit another crime, many falling victim to their untreated addiction, and end up back behind bars. It’s a vicious cycle that wreaks personal and societal havoc in neighborhoods and families across the country. We must face the fact that our federal prison system is failing our citizens, and come to grips with the reality that the opioid epidemic will not be solved by maintaining the status quo.

Thank God, President Trump is committed to effective prison reform and combatting the drug crisis. Through his leadership and the hard work of Jared Kushner, the prison reform First Step Act passed the House of Representatives in May with overwhelming bipartisan support. This much-needed legislation now contains modest, commonsense sentencing reform initiatives added by crime reduction advocates on the Senate Judiciary Committee.

October 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Campaign 2016 and sentencing issues, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

"Larry Krasner’s Campaign to End Mass Incarceration"

The title of this post is the headline of this lengthy new profile in The New Yorker of perhaps the highest-profile local prosecutor in the United States.  I recommend the piece in full, and its subheadline provides a succinct summary: "Philadelphia’s District Attorney reinvents the role of the modern prosecutor."   Here is an excerpt from its first section:

Krasner, who is fifty-seven, is a compact man with an intense, slightly mischievous demeanor.  He likes to say that he wrote his campaign platform — eliminate cash bail, address police misconduct, end mass incarceration — on a napkin.  “Some of us had been in court four and five days a week in Philadelphia County for thirty years,” he said.  “We had watched this car crash happen in slow motion.”  Krasner often talks about how, running as a defense attorney, his opponents, most of whom had worked as prosecutors in the D.A.’s office, frequently attacked him for having no experience.  At one event, they were “beating the tar out of me because I have not been a prosecutor.  ‘Oh, my God! He’s never been a prosecutor!’ ”  But the line of attack worked to his advantage.  “You could hear people saying, ‘that’s good!’ ”  Brandon Evans, a thirty-five-year-old political organizer, said. “I remember people nodding profusely, rolling their eyes, and shrugging their shoulders.”

In 2015, Philadelphia had the highest incarceration rate of America’s ten largest cities.  As its population grew more racially diverse and a new generation became politically active, its “tough on crime” policies fell further out of synch with its residents’ views.  During Krasner’s campaign, hundreds of people — activists he had represented, supporters of Bernie Sanders, Black Lives Matter leaders, former prisoners — knocked on tens of thousands of doors on his behalf.  Michael Coard, a left-wing critic of the city’s criminal-justice system, wrote in the Philadelphia Tribune that Krasner was the “blackest white guy I know.”  The composer and musician John Legend, a University of Pennsylvania graduate, tweeted an endorsement.  In the three weeks before the primary, a pac funded by the liberal billionaire George Soros spent $1.65 million on pro-Krasner mailers and television ads.  Strangers started recognizing him on the street.  He trounced his six opponents in the primary, and went on to win the general election, on November 7, 2017, with seventy-five per cent of the vote.  He was sworn in on January 1, 2018, by his wife.

October 22, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Latest Gallup poll on death penalty shows little change in divided views among Americans

Xgi1djqtmkausnrpkwb5fwGallup has released here the results of its latest polling on the death penalty under the headline "New Low of 49% in U.S. Say Death Penalty Applied Fairly."  Here are excerpts from its reporting of the numbers:

The percentage of Americans who believe the death penalty is applied fairly continues to decrease, falling below 50% this year for the first time.  Forty-nine percent now say the death penalty is applied fairly and 45% say it is applied unfairly.

The 49% who say the death penalty is applied fairly is, by one percentage point, the lowest Gallup has measured since it first asked the question in 2000 and reflects a gradual decline of this view over the past decade.  Meanwhile, the percentage who say capital punishment is applied unfairly has edged higher, with this year's four-point gap marking the smallest difference between the two views in Gallup's polling.

These latest data, from Gallup's annual Crime poll, were collected Oct. 1-10 -- just before the Washington state Supreme Court on Oct. 11 struck down that state's death penalty, saying it had been unequally applied across racial groups. In its decision, the court cited evidence that "black defendants were 4 ½ times more likely to be sentenced to death than similarly situated white defendants."  The decision makes Washington the 20th state to outlaw the death penalty.

The decline in Americans' belief that capital punishment is applied fairly is largely the result of a sharp drop in this view among Democrats.  Thirty-one percent of Democrats this year say the death penalty is applied fairly, similar to the low of 30% in 2017 but down significantly from 2005 and 2006, when slim majorities held this view.  Meanwhile, 73% of Republicans say the death penalty is applied fairly, and the percentage holding this view has been fairly stable over time -- typically in the low 70s...

Americans remain most likely to say the death penalty is not imposed enough (37%), while smaller percentages say it is imposed "too often" (29%) or "about the right amount" (28%). While belief that the death penalty is not imposed often enough is still the most common view, the latest 37% is down from a high of 53% in 2005 and is by one point the lowest reading since 2001....

Historically, Americans have been generally supportive of the death penalty as the punishment for murder. In all but two polls (in 1965 and 1966), Americans have been more likely to say they are in favor of than opposed to use of the death penalty. However, support for capital punishment too has been trending downward since peaking at 80% in the mid-1990s during a high point in the violent crime rate.  Currently, 56% of U.S. adults favor capital punishment -- similar to last year's 55%, which marked the lowest level of support for the practice since 1972, when the constitutionality of the death penalty was being challenged.

October 22, 2018 in Death Penalty Reforms, Elections and sentencing issues in political debates | Permalink | Comments (0)

October 21, 2018

Some recent criminal justice highlights from Marijuana Law, Policy & Reform

It has been many months since I did a round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, and there have been so many marijuana reform developments in those many months, so I cannot readily here round up all MLP&R highlights.  But I can cover some recent favorites from some recent posting that should be of particular interest to criminal justice fans, so here goes:

October 21, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

"Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell"

The title of this post is the title of this big new report now available here via SSRN. Here is its abstract:

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School.  These monographs provide a unique, longitudinal, nationwide database.  The topic is “restrictive housing,” often termed “solitary confinement,” and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.

The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of the U.S. prison population.  They reported that 49,197 individuals — 4.5% of the people in their custody — were in restrictive housing.  Extrapolating, we estimate that some 61,000 individuals were in isolation in U.S. prisons.  This number does not include people in most jails or juvenile, military, or immigration facilities.

Two areas of special concern are the impact of mental illness and the length of time individuals spend in restrictive housing.  Correctional systems use a variety of definitions for serious mental illness.  Using their own descriptions, jurisdictions counted more than 4,000 prisoners identified as seriously mentally ill and in restrictive housing.  Within the 36 jurisdictions that reported on the length of time people had been in segregation, most people were held for a year or less.  Twenty-five jurisdictions counted more than 3,500 individuals held more than three years.

Reforming Restrictive Housing details policy changes tracking the impact of the 2016 American Correctional Association’s (ACA) Restrictive Housing Performance Based Standards. The ACA Standards call for limiting the use of isolation for pregnant women, juveniles, and seriously mentally ill individuals.

This monograph also compares the responses of the 40 prison systems that answered the ASCA-Liman surveys in both 2015 and 2017.  See ASCA-Liman, Aiming to Reduce Time-in-Cell (Nov. 2016), SSRN No. 2874492. The number in restrictive housing was reported to have decreased from 56,000 in 2015 to 47,000 in 2017.  Looking at specific states, in more than two dozen systems, the numbers in segregation decreased. In 11 systems, the numbers went up.

A related monograph, Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes, details the work of four correctional administrations to limit — and in one state abolish — holding people in cells 22 hours a day for 15 days or more.

October 21, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)