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November 3, 2018

Buckeyes take the field to make forceful case for criminal justice reform through support for Issue 1

Download (23)Regular readers know I am following closely the debate over the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, now known as Issue 1.  (The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law 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.)  Regular readers also know that I am a sports fan who is always intrigued and excited when prominent athletes take an interest in criminal justice reform issues. 

For all those reasons, I am especially drawn to this new commentary authored by Malcolm Jenkins and Austin Mack under the headline "Vote Yes on 1: Why We Must Treat and Not Jail Addiction."  I recommend the commentary in full and here are excerpts:

Mass incarceration is the most urgent civil rights issue of our time.  America’s stubborn commitment to the failed war on drugs, tough-on-crime policies, and lengthy prison sentences has resulted in the caging of a breathtaking number of black and brown people.  These policies have not made us safer, and they have not addressed the underlying causes of crime, such as poverty, mental illness, a lack of access to health care, and relatedly, substance abuse.  Instead, these policies have ripped apart families and neighborhoods, leaving a blight on communities of color that will last for decades unless we immediately reverse course.

These ineffective policies have been on full display in Ohio, which has an incarceration rate higher than any other country in the world (other than the United States).  It has the fourth highest total prison population in the U.S. and its prisons sit at 130 percent capacity.  Ohio’s zest for incarceration is costly  —  the prison’s budget is $1.8 billion a year. While other states are starting to reduce both their crime rates and prison populations through evidence-based reforms, Ohio has largely stayed the course of mass incarceration, cramming more and more people into eight by ten cells.  The population is projected to keep growing, costing Ohioans more and more.

But this November, we have a chance to change direction and be a leader in the criminal justice reform movement.  On the ballot is State Issue 1, which will convert many crimes of addiction from felonies to misdemeanors. Instead of going to state prison, people convicted of low-level drug possession will receive treatment, supervision, or county jail. They would not be saddled with a felony conviction, which can mean a lifetime of barriers to employment, housing, and more. Instead, they would have access to critical treatment.  And Ohio would invest the money saved in people — in badly needed treatment and in services for crime victims.

This will make us safer.  Prosecutors and law enforcement can focus on more serious offenses like drug trafficking, which remains a felony. Meanwhile, people who suffer from addiction can stay out of prison and receive the treatment and services they need. In the long run, this will mean more jobs.  And more jobs means less crime.  Voting in favor of Issue 1 is, in this way, a no brainer....

Righting the harsh injustices of the failed war on drugs is long overdue.  Drug arrests and prosecutions consistently affect black communities at an alarming rate that is far greater than white communities. In 2006, for example, police arrested black Ohioans at nearly 6 times the rate of white Ohioans.  85 percent of those arrests were for use, or possession, offenses. Issue 1 can’t right our past wrongs, but it can prevent some of them from happening in the future.

As student athletes (and a proud alum) at the best university in this country and in one of the greatest states, we know Ohioans want what is fair for all communities.  Some use fear mongering to divide us, but we know Ohioans know better than that.  We can do better  —  we can lead in reform, rather than fall behind.  We can be fair and compassionate, rather than pursuing the same old policies that crowd our jails and prisons and make us less safe. O-H-I-O.  Vote yes on Issue 1 this November.

For those who do not recognize the names of these authors of this commentary, here is the "About the Co-Authors" description:

Malcolm Jenkins is the Co-Founder of the Players Coalition, a 2018 Super Bowl Champion Safety for the Philadelphia Eagles and an alum of The Ohio State University.  Players Coalition is an independent 501c3/501c4 organization led by professional athletes to impact social and racial inequality.  Visit www.players-coalition.org for more information and follow us at @playercoalition.

Austin Mack is a Wide Receiver for the football team and President of “Redefining Athletic Standards” at The Ohio State University. This Op-Ed is supported by its fellow members.

Prior related posts:

November 3, 2018 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"The Power and Prejudice of DAs on Drugs"

03c3e6a3-d023-4cc0-aef0-579709278f31The title of this post is the title of this interesting investigation by Rory Fleming published at Filter, which is a relatively new resource seeking "to advocate through journalism for rational and compassionate approaches to drug use, drug policy and human rights." I recommend the piece in full, as well as these associated "Interactive Graphics," and here is how it gets started:

Public opinion is souring on the criminalization of drug use. But what prevents this from translating into practice?

While politicians makes laws and police officers can arrest whoever they find in possession of drugs, it’s prosecutors who turn arrests into criminal charges. Prosecutors have the final say in who to charge with a crime, which charge to use, and what punishment will be sought. In short, they’re in a position to inflict great harm.

Amy Weirich, district attorney for Shelby County, Tennessee (which includes Memphis), charged women with child abuse for being dependent on drugs while pregnant. She justified this by stating that she uses the “velvet hammer” of drug court to force them into treatment.

In Tucson, Arizona, Pima County Attorney Barbara LaWall sent the ACLU a cease-and-desist letter to try to stop the organization from talking about her support of mandatory minimum prison sentences for drugs.

Commonwealth’s Attorney Raymond Morrogh of Fairfax, Virginia went to Washington, DC to accuse former US Attorney General Eric Holder of trying to reward drug prisoners with “lighter sentences because America can’t balance its budget.”

There are over 2,000 elected local head prosecutors, most commonly known as district attorneys, in the United States. And overall, these powerful individuals do not care what people think about the War on Drugs. They are going to fight it anyway, and hope that the voting public doesn’t notice.

That is the conclusion of an exclusive investigation from Filter, which surveyed the top prosecutors of the nation’s 50 most populous counties. (We included incumbents, outgoing incumbents, incoming DAs and challengers, making 61 individuals in total.) ...

After collecting public statements and reviewing cases, we emailed each prosecutor a short questionnaire about their positions on four key issues: marijuana legalization, drug-induced homicide prosecutions, mandatory minimum sentences for drugs, and the criminalization of relapse.

Around half of their offices never responded, even after a round of reminders. We telephoned 10 offices, which listed no email address for a media representative on their government websites.  One of them — that of Wake County, NC District Attorney Lorrin Freeman—hung up immediately on hearing the word “reporter.”

Many of the prosecutors surveyed have stated publicly that we must treat drug use as a “public health issue,” rather than a criminal justice one. But our findings show that the vast majority nonetheless support or implement practices that drive criminalization, inequality and large-scale human suffering.

November 3, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

November 2, 2018

SCOTUS grants cert on another supervised release issue (and a Batson issue in a capital case)

The Supreme Court last week, as noted here, granted cert in United States v. Haymond, No. 17-1672, an interesting 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.  Today, as reflected in this order, the Court granted cert on another issue related to supervised release through a grant in Mont v. United States, No. 17-8995.  The petitioner's cert petition posed this "Question Presented":

Whether a statute directed to the administration of imprisoned individuals serves as authority to alter or suspend the running of a criminal sentence of supervised release, when such “tolling” is without judicial action, and requires the term “imprisonment” as used in the administrative statute, to include pretrial detention prior to an adjudication of guilt. Is a district court required to exercise its jurisdiction in order to suspend the running of a supervised release sentence as directed under 18 U.S.C. §3583(i) prior to expiration of the term of supervised release, when a supervised releasee is in pretrial detention, or does 18 U.S.C. §3624(e) toll the running of supervised release while in pretrial detention?

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

Whether a period of supervised release for one offense is tolled under 18 U.S.C. 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

In addition to some civil grants, the Court also granted cert on a capital case, Flowers v. Mississippi, No. 17-9572, but limited the grant in this way:

The petition for a writ of certiorari is granted limited to the following question: Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U.S. 79 (1986), in this case.

November 2, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The Biased Algorithm: Evidence of Disparate Impact on Hispanics"

The title of this post is the title of this new article available via SSRN authored by Melissa Hamilton.  Here is its abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety.  Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities.  Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics.  The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics. 

November 2, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

November 1, 2018

Tennessee completes execution using electric chair

As reported in this lengthy local article,"inmate Edmund Zagorski died at 7:26 p.m. CDT Thursday after Tennessee prison officials electrocuted him with the electric chair." Here is more:

He is the 134th person put to death by Tennessee since 1916 and the second person this year after Billy Ray Irick’s execution by lethal injection on Aug. 9.  He is the first person to die by electric chair since Daryl Horton's execution in 2007.

Zagorski was convicted in the April 1983 murders of John Dale Dotson, of Hickman County, and Jimmy Porter, of Dickson.  Prosecutors argued Zagorski lured them into the woods in Robertson County with the promise to sell them marijuana, and then he shot them, slit their throats and stole their money.

Two minutes before it was set to begin at 7 p.m., the U.S. Supreme Court denied Zagorski's appeal on the grounds of the unconstitutionality of choosing between the electric chair and lethal injection....

Eight people believed to be family members of the victims entered the prison to witness the execution.  They waited in front of a covered large window that looked into the execution chamber where on the other side of the glass Zagorski sat pinned in the electric chair, held down by buckles and straps with electrodes fastened to his feet.

The blinds opened for the rest of the witnesses to see Zagorski dressed in his cotton clothes, smiling and grimacing to the group. Zagorski pronounced his last words: "Let’s rock." He sat smiling in the wired chair as prison staff placed a wet sponge, which had been soaked in salt, and a metal helmet on his freshly shaven head.

Zagorski raised his eyebrows, appearing to be communicating with his attorney Kelley Henry. She sat while nodding and tapping her heart, looking at Zagorski. “I told him, when I put my hand over my heart, that was me holding him in my heart,” Henry told The Tennessean.   She said Zagorski smiled, to encourage her to smile back.  Then his face was covered with a black shroud.

The warden gave the signal to proceed.  Zagorski lifted his right hand several times in what looked like attempts to wave, before he clenched his hands into a fist as the first current ran 1,750 volts of electricity through his body for 20 seconds.

There was a short pause before the second jolt was administered for 15 seconds.  The doctor overseeing the death appeared in view to check on Zagorski’s vitals. Zagorski was dead. The blinds into the chamber closed....

Zagorski was set to die three weeks ago.  His request to die by electric chair saved his life — at least for a few weeks, when Gov. Bill Haslam granted reprieve three hours before his scheduled execution on Oct. 11.  The move bought the state time to prep the chair during last-minute legal wrangling.

Zagorski requested death by electric chair with hope that death would come instantaneously — the “lesser of two evils” compared to lethal injection, argued federal public defender Kelley Henry.

November 1, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

Pew reports on persons on probation or parole in US

The folks at Pew have this new posting titled in full "1 in 55 U.S. Adults Is on Probation or Parole: Better strategies can cut that rate while protecting public safety, decreasing drug misuse, and reducing incarceration." Here is how the posting gets started:

More than a decade ago, policymakers around the country seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states. Because of their high costs and visibility, prisons garnered substantial public attention on criminal justice, while relatively little was paid to the largest part of the correctional system: community supervision.

Probation and parole populations grew 239 percent from 1980 to 2016, and with that came a dramatic rise in the per capita rate of community supervision, which was 1 in 55 U.S. adults — nearly 2 percent — in 2016.  Although the community corrections population declined 11 percent since its all-time peak in 2007, it is still twice the size of the population incarcerated in state and federal prisons and local jails, combined. Notably, supervision rates vary considerably by state, from 1 in 18 in Georgia to 1 in 168 in New Hampshire, reflecting the difference in practices and policies across the nation.

This massive scale has too often prevented the community supervision system from effectively delivering on its mission to promote public safety through behavioral change and accountability.  Although about half of the roughly 2.3 million people who complete their probation and parole terms each year do so successfully, nearly a third fail for a range of reasons, and almost 350,000 of those individuals return to jail or prison, often for violating the rules rather than committing new crimes.

November 1, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

October 31, 2018

Latest analysis and discussion of Ohio criminal justice reform ballot initiative known as Issue 1

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.  The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law 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

The last pre-election DEPC public panel on Issue 1 is taking place tomorrow, November 1 at 10 am (register here), at the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University.  The all-star panelists who will be speaking are:

Kyle Strickland, Senior Legal Research Associate at the Kirwan Institute will be moderating this great panel. I know Kyle will also be bringing an informed perspective to the discussion because he is a co-author of this great new report titled "Race & Criminal Justice: Ohio Issue 1 and Beyond."  Here is part of the conclusion of that report: 

Many communities are rightfully asking the question of why is the opiate epidemic the catalyst for modern criminal justice reform?  At the core of this question is the notion that broad-sweeping reform efforts are much more politically feasible when the issue also impacts communities with privileged identities — whether that be race, economic status, or party affiliation.  In the future, we should not wait for collective tipping points to address systemic inequities because policies that disproportionately harm marginalized communities harm us all.

Now that reform efforts are in motion, it is critical that a racial lens be applied to policies moving forward.  A reduction in racial disparities in the criminal justice system should not be an assumed outcome of reform.  Disparate outcomes will likely re-emerge in the health care system, community based corrections, and all other institutions without intentional effort paid to undoing our legacy of racism and discrimination.  A more equitable system will require explicit interventions to address systemic discrimination and interpersonal biases at every level.

Regardless of the outcome in November, communities must demand that those implementing Issue 1 or other criminal justice reform efforts be held accountable to reducing racial disparities and repairing the intergenerational harm caused by mass incarceration and decades of disinvestment.

Prior related posts:

October 31, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"The defendant faces a maximum possible penalty of death, or life without parole, followed by a consecutive sentence of 535 years’ imprisonment."

The title of this post is a sentence near the end of this Department of Justice press release fully titled "Pennsylvania Man Charged with Federal Hate Crimes for Tree Of Life Synagogue Shooting: Robert Bowers Indicted on 44 Counts Including Hate Crimes Resulting in Deaths." Here is how the release gets started:

A federal grand jury sitting in the U.S. District Court for the Western District of Pennsylvania charged a Pennsylvania man with federal hate crimes, including the murder of 11 people, for his actions during the Oct. 27, 2018 shootings at the Tree of Life Synagogue in Pittsburgh’s Squirrel Hill neighborhood. United States Attorney General Jeff Sessions, Acting Assistant Attorney General John Gore for the Civil Rights Division, U.S. Attorney for the Western District of Pennsylvania Scott W. Brady, and FBI-Pittsburgh Special Agent in Charge Robert Jones made the announcement.

Robert Bowers, 46, of Baldwin, Pa., was charged in a 44-count indictment returned today.

According to the indictment, on Oct. 27, 2018, Bowers drove to the Tree of Life Synagogue in Pittsburgh, Pennsylvania, where members of the Tree of Life, Dor Hadash, and New Light Jewish congregations gathered to engage in religious worship. Bowers entered the building armed with multiple firearms, including Glock .357 handguns a Colt AR-15 rifle. The indictment alleges that while inside the Tree of Life Synagogue, Bowers opened fire, killing and injuring members of the three congregations, as well as injuring multiple responding public safety officers. While inside the Tree of Life Synagogue, Bowers made statements indicating his desire to “kill Jews.”

Specifically, the indictment charges:

  • Eleven counts of obstruction of free exercise of religious beliefs resulting in death;
  • Eleven counts of use and discharge of a firearm to commit murder during and in relation to a crime of violence;
  • Two counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon and resulting in bodily injury;
  • Eleven counts of use and discharge of a firearm during and in relation to a crime of violence;
  • Eight counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon, and resulting in bodily injury to a public safety officer; and
  • One count of obstruction of free exercise of religious beliefs involving use of a dangerous weapon and resulting in bodily injury to a public safety officer.

Prior related post:

October 31, 2018 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)

Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation"

6a00d83451574769e2022ad3762ba2200c-320wiIn this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic (FCJC), sent me an extraordinary 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," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided it into three posts to cover all she has to report.  The first post covered "Sentencing Victories," the second covered "Legal Victories" and this final one set out "A Path for Future Litigation":

A Path for Future Litigation

The new legal standards forged by these three courts of appeals [discussed in this prior post] make it markedly easier for criminal defendants to obtain discovery in support of racially selective law enforcement claims, which in turn makes it possible for defendants to win motions to dismiss on the merits.

The lower discovery standard also supports a lower merits standard for motions to dismiss for racially selective law enforcement than the standard set in Armstrong.  Under Armstrong, a defendant must provide “clear evidence” of discriminatory effect and discriminatory intent to prevail on a selective prosecution claim on the merits.  Armstrong, 517 U.S. at 465.  As Sellers notes, the Supreme Court explicitly rested that merits standard on “the presumption that prosecutors ‘properly discharged their official duties.’” Sellers, 2018 WL 4956959 at *6 (quoting Armstrong, 517 U.S. at 464).  Courts have made clear that such a presumption simply does not apply in the selective law enforcement context.  See, e.g., Davis, 793 F.3d at 721; Washington, 869 F.3d at 220–21; Sellers, 2018 WL 4956959 at *6.  Accordingly, there is no basis for applying the “clear evidence” standard to a motion to dismiss for selective law enforcement.  Instead, courts should apply the ordinary preponderance of the evidence standard.

In our Motions to Dismiss, the FCJC asked the district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.  See, e.g., Defendants’ Amended Reply in Support of Motion to Dismiss for Racially Selective Law Enforcement at 2­–4, United States v. Brown, 12-CR-632 (N.D. Ill. Nov. 6, 2017) (Dkt. No. 630).  Although the only judge to issue a merits ruling rejected our proposed lower standard, see Brown, 299 F. Supp. 3d at 995–97, Sellers supports the FCJC’s position that the standard for obtaining dismissal based on a selective enforcement claim must be less onerous than the merits standard for a selective prosecution claim.

Lawyers in other jurisdictions can use the litigation and precedents discussed above and in Parts 1 and 2 of this guest post series to fight race discrimination by law enforcement in their own cases.  Here are a few ideas:

  • Hire experts and gather data about racial disparities created by law enforcement in fake stash house robbery cases, gun cases, and others.
  • Litigate motions to obtain discovery regarding selective law enforcement in stash house cases and others, and ask district court judges to apply the lower evidentiary standard set by the Seventh, Third, and Ninth Circuits.
    • Appeal denials of selective enforcement discovery motions and advocate for other courts of appeals to adopt the lower discovery standard.
  • Litigate motions to dismiss for selective law enforcement in stash house cases and others, and ask district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.
    • Appeal denials of such motions to dismiss and advocate for other courts of appeals to adopt a preponderance of the evidence standard on the merits.
  • Use the plea agreements in the Chicago cases to advocate to U.S. Attorney’s Offices to dismiss mandatory minimum charges in fake stash house robbery cases.
  • Use the example of the Chicago U.S. Attorney’s Office to convince other USAOs to cease bringing fake stash house robbery cases altogether.
  • Use the time served sentences imposed in the Chicago cases to advocate for lower sentences in stash house cases elsewhere. Sentencing memoranda prepared by the Federal Criminal Justice Clinic in several of the Chicago cases can be found at these links:

Prior related posts:

October 31, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable federal sentencing argument that "nature and circumstances of the offense" includes "rhetorical China shop bull who is now our president"

C487660a9f953e1a74a1e5c649ef3640--gloveA helpful reader made sure I did not miss this HuffPost piece concerning a notable federal sentencing filing in a high-profile federal case.  The full headline of the piece sets forth the basics: "Trump Fan Convicted In Anti-Muslim Terror Plot Asks Judge To Consider Trump’s Rhetoric: Patrick Stein’s attorneys also said he learned about the Quran 'from the internet and conservative talk-show hosts such as Sean Hannity and Michael Savage'."  Here are more details from this article (which also include a link to the full filing):

Attorneys for a President Donald Trump supporter who was convicted in a domestic terrorism plot aimed at slaughtering Muslim refugees asked a federal judge to factor in the “backdrop” of Trump’s campaign rhetoric when deciding their client’s sentence.

Patrick Stein was one of three right-wing militiamen found guilty in April of a conspiracy to kill Muslim refugees living in rural Kansas. Ahead of the 2016 election, Stein and two others plotted with an FBI informant and an undercover agent to bomb an apartment complex that housed Muslims in Garden City. Stein went by the handle “Orkin Man” and referred to Muslims as “cockroaches” he wanted exterminated.

His sentence was expected to be announced Friday but has been delayed until Nov. 19.

At trial, defense attorneys referred to the defendants as “knuckleheads” who were engaged in “locker room talk,” and Stein’s attorney argued his client was a victim of a “chaos news” environment that had him thinking a civil war was coming. A jury convicted Stein and his co-defendants, Curtis Allen and Gavin Wright, on weapons of mass destruction and conspiracy against civil rights charges.... The government said it is seeking life sentences for all three defendants.

Stein’s attorneys, James Pratt and Michael Shultz, argued Monday in a sentencing memo that sending Stein to prison for life was unwarranted and that a sentence of 15 years would be appropriate. They said the judge should factor in the “backdrop to this case” when crafting an appropriate sentence.

“2016 was ‘lit.’ The court cannot ignore the circumstances of one of the most rhetorically mold-breaking, violent, awful, hateful and contentious presidential elections in modern history, driven in large measure by the rhetorical China shop bull who is now our president,” they wrote.

“Trump’s brand of rough-and-tumble verbal pummeling heightened the rhetorical stakes for people of all political persuasions,” they added. “A personal normally at a 3 on a scale of political talk might have found themselves at a 7 during the election. A person, like Patrick, who would often be at a 7 during a normal day, might ‘go to 11.’ See SPINAL TAP.  That climate should be taken into account when evaluating the rhetoric that formed the basis of the government’s case.”

Stein’s attorneys, who called their client an “early and avid” Trump supporter, said it was important to keep in mind that “almost no one thought Trump was going to win” when evaluating the likelihood of an attack. The plot was supposed to take place after the election, as the group didn’t want their attack to boost Hillary Clinton’s presidential campaign. Stein, in a message to an undercover agent, wrote that if they attacked ahead of the election it would “give a lot of ammunition to the Hillary supporters” and said that Clinton could never be allowed to be president.

“Trump’s win changed everything, and it is reasonable to speculate that it would have changed things among the defendants as well,” the attorneys wrote. “The urgency for action would be gone. The feeling of a losing battle would be gone. The conspiracies, in part, would be disproven as the transition from Obama to Trump took place. It is logical to conclude that the discussed attack would never have happened in the world that existed post-Trump.”

Stein’s attorneys said their client got caught up in the anti-Muslim information he was devouring online. His knowledge of the Quran, his attorneys wrote, “came directly from the internet and conservative talk-show hosts such as Sean Hannity and Michael Savage. Patrick himself had never read the Quran, nor had he participated in a comparative study of any religion.”

Stein, his attorneys wrote, was “the perfect, vulnerable target” for the FBI, and had relapsed into alcoholism and “had used methamphetamine regularly,” including after he met FBI informant Dan Day. They said that Stein’s crimes “demonstrated an extreme level of hatred and fear, but they also demonstrated an utter lack of sophistication.”

Any sentencing document that effectively cites Spinal Tap garners my appreciation, and it obviously deserves to be honored for being willing to take its arguments "one louder."

October 31, 2018 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

I am a big fan of clemency and democracy, but....

I am still not sure I can get behind the proposal discussed in this article under the headline "Vermont Candidate Promises Weekly 'Governor's Pardon TV Show'."  Here are the details:

A Vermont gubernatorial candidate has proposed a nationally televised show in which a booing or cheering crowd would decide the fate of state prisoners.

Independent candidate Cris Ericson, a marijuana advocate who regularly runs for statewide office, outlined her vision in a commentary for Vermont PBS.  “If you elect me, I will host a governor’s pardon TV show every Saturday night and pardon a few of the people who violate the new, unconstitutional anti-gun laws, and some of the nonviolent offenders of other laws, to save Vermonters money,” Ericson said in the commentary.  She was referring, presumably, to new restrictions on gun ownership signed into law in April by her Republican opponent, Gov. Phil Scott.

Ericson said the show would be hosted from the auditorium in Montpelier's Pavilion State Office Building, a few floors below the governor’s office.  “We will have a full audience in the auditorium … and invite 100 Vermonters each week to boo or cheer,” she said. “We will invite family and friends of the prisoners to speak on their behalf.  Then the audience will vote on whether I should grant a pardon as governor with the legal authority to grant pardons.”

Ericson said the state could even generate revenue from the idea, by selling the show and investing the profits in the General Fund.

Though she doesn’t reference the film, the scene Ericson describes bears a striking resemblance to the fictional depiction of America’s justice system in the movie Idiocracy....

A recent poll by Vermont Public Radio and Vermont PBS showed that Ericson had support from about 1 percent of Vermont voters.

October 31, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

October 30, 2018

US Sentencing Commission releases FY 2018 third quarter (repackaged) sentencing data

US Sentencing Commission has now released here its "3rd Quarter ... Preliminary Fiscal Year 2018 Data."  As previously noted in this post when the USSC released data on offenders sentenced during the first half of fiscal year 2018, the Commission has altered how it accounts and reports sentencing data.  This new data run explains "the Commission is again updating the way it presents quarterly data. In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way. Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances."  As I see it, this means within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances are broken out distinctly.

As I have said before, nothwithstanding this repackaging aside, we can still look at the "within-guideline" number on Tables 8 and 8A for direct comparisons on this front between the first three quarters of of FY 2018 and all federal sentencing data from the last full year of the Obama Administration (in this FY 2016 data report).  Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50.5% in the first three-quarters of FY 2018.  Without a more intricate and sophisticated analysis controlling for caseloads and other factors, this upward movement in within-guideline sentences does not alone provide conclusive evidence that "Trump era" changes in prosecutorial policies and practices is having a direct impact on federal sentencing outcomes.  But these new data continue to be suggestive of trends to watch as more cases more through the pipeline and as new federal prosecutors and judges are impacted by new commands and advocacy from Main Justice.

Prior related post:

October 30, 2018 in Booker in district courts, Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents"

The title of this post is the title of this new article available via SSRN authored by Amy Cyphert.  Here is its abstract:

Children of incarcerated parents, the invisible victims of mass incarceration, suffer tremendous physical, psychological, educational, and financial burdens — detrimental consequences that can continue even long after a parent has been released.  Although these children are blameless, policy makers, judges, and prison officials in charge of visitation policies have largely overlooked them.  The United States Sentencing Commission Guidelines Manual explicitly instructs judges to ignore children when fashioning their parents’ sentences, and judges have largely hewed to this policy, even in the wake of the 2005 United States v. Booker decision that made those Guidelines merely advisory, not mandatory.

Although some scholars have suggested amending the Guidelines or making other legislative changes that would bring children’s interests forward at the sentencing phase, these suggestions are less likely than ever to bear fruit.  In light of the Trump Administration’s “tough on crime” rhetoric, new Attorney General Jefferson Sessions’ “law and order” reputation, and Republican control of the House and Senate, policy change that is viewed as “progres- sive” is highly unlikely.  Therefore, this Article proposes two other avenues for change. 

First, in a new and unique proposal, this Article suggests federal judges can and should independently order the inclusion of Family Impact Statements into a defendant’s presentence investigation report via a heretofore largely unused “catchall provision” of the Federal Rules of Criminal Procedure.  Second, this Article makes three modest policy recommendations that are aimed at improving the ability of children to visit their incarcerated parents.  Visitation has been shown in studies to be a powerful tool of mitigation for many of the harms children experience when their parents are incarcerated, but visitation rates are woefully low.  The options for improving circumstances for children of incarcerated parents may well be limited, but there are viable options, and there is no time to waste.

October 30, 2018 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Terrific review of all the criminal justice reforms stories in the 2018 midterm election

Images (17)It is now just a week until Election Day 2018, and everyone should feel a significant responsibility to vote and to encourage everyone they know to vote. (I have long thought we ought to have many more elections and much more voting in the US, but that it a topic for a different post.)  Over at Vox, German Lopez has this great extended review of all the notable and different initiatives and candidates on the ballot that could have an impact on local, state and national criminal justice systems.  The extended piece is fully headlined "How 2018 voters could change America’s criminal justice system: From marijuana to crime victims’ rights to prosecutors, the 2018 elections will be big for criminal justice."  Here is how the piece gets started and some of its headings that follow:

From ballot initiatives to local elections to the state and federal races, the 2018 midterm elections will give voters an opportunity to define the system charged with arresting, prosecuting, and incarcerating people in America.

These races usually do not get the attention they deserve, especially state and local elections and particularly races for prosecutors. But they are tremendously important: Despite all the attention that goes to the federal system, the great majority of criminal justice work is done at the local and state level, where America’s police departments operate and most of the people in prison are locked up.

A criminal justice reform movement, galvanized by Black Lives Matter, civil rights issues, and prison spending’s strain on government budgets, has already led to some changes in recent years, from reforming prisons and police to reducing criminal penalties for certain crimes. The 2018 midterms offer an opportunity to continue the momentum behind criminal justice reform.

Here are some of the most pressing criminal justice issues on the ballot this November, covering debates over the war on drugs, mass incarceration, policing, crime victims’ rights, and more.

Criminal justice issues on the ballot in six states...

Marijuana legalization in Michigan and North Dakota, and medical pot in Utah and Missouri....

Marsy’s Law, a crime victims’ bill of rights, is on the ballot in six states...

Prosecutor elections: maybe the most important contests in criminal justice...

Prosecutors are driving mass incarceration...

Other local and state races will be a big deal too

This Vox piece has lots and lots of links to all the initiatives and other races and related points in the piece.  Read the whole thing and click through (and share views in the comments on what you consider the most important or consequential matters or people on the ballot).  And for another (more visual) view on all these matters, the folks at The Appeal political report have these terrific maps on these election matters: 

On the ballot in November 2018

Where Criminal Justice & Law Enforcement Measures are on the 2018 Ballot

Where Voting Rights are on the 2018 Ballot

October 30, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

South Dakota completes execution of prison guard murderer who relinquished appeals

This NBC News piece, headlined "Inmate makes joke in last words before execution for killing South Dakota prison guard," reports on the 19th execution in the US in 2018.  Here are some of the details:

A South Dakota inmate who killed a correctional officer seven years ago during a failed prison escape on the guard's 63rd birthday was put to death Monday evening, marking the state's first execution since 2012.

Rodney Berget, 56, received a lethal injection of an undisclosed drug for the 2011 slaying of Ronald "R.J." Johnson, who was beaten with a pipe and had his head covered in plastic wrap at the South Dakota State Penitentiary in Sioux Falls.  Berget's execution was the state's fourth since it reinstituted the death penalty in 1979.

It originally was to be carried out at 1:30 p.m. CDT (2:30 p.m. ET), but was delayed for hours while the U.S. Supreme Court weighed a last-minute legal bid to block it.  Berget joked in his last words about the wait, saying, "Sorry for the delay, I got caught in traffic."...

Johnson's widow, Lynette Johnson, who witnessed the execution, said her husband experienced "cruel and unusual punishment" but Berget's lethal injection was "peaceful" and "sterile."

"What's embedded in my mind is the crime scene.  Ron laid in a pool of blood. His blood was all over that crime scene," she said.  "That's cruel and unusual punishment."...

Berget was serving a life sentence for attempted murder and kidnapping when he and another inmate, Eric Robert, attacked Johnson on April 12, 2011, in a part of the penitentiary known as Pheasantland Industries, where inmates work on upholstery, signs, furniture and other projects.  After Johnson was beaten, Robert put on Johnson's pants, hat and jacket and pushed a cart loaded with two boxes, one with Berget inside, toward the exits.  They made it outside one gate but were stopped by another guard before they could complete their escape through a second gate. Berget admitted to his role in the slaying.

Robert was executed on Oct. 15, 2012. The state also put an inmate to death on Oct. 30, 2012, but that was the last one before Berget's....

Berget's mental status and death penalty eligibility played a role in court delays. Berget in 2016 appealed his death sentence, but later asked to withdraw the appeal against his lawyers' advice.  Berget wrote to a judge saying he thought the death penalty would be overturned and that he couldn't imagine spending "another 30 years in a cage doing a life sentence."

The Department of Corrections planned to use a single drug to execute Berget. Policy calls for either sodium thiopental or pentobarbital. Pentobarbital was used in the state's last two executions.  South Dakota has not had issues with obtaining the drugs it needs, as some other states have, perhaps because the state shrouds some details in secrecy. Lawmakers in 2013 approved hiding the identities of its suppliers.

Berget was the second member of his family to be executed. His older brother, Roger, was executed in Oklahoma in 2000 for killing a man to steal his car.

October 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

Plea waivers and ineffectiveness of counsel for failing to appeal come to SCOTUS in Garza v. Idaho

The Supreme Court will hear argument today in Garza v. Idaho, which presents this criminal procedure question about the application of ineffective assistance of counsel: "Whether the 'presumption of prejudice' recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver."  Over at SCOTUSblog, Even Lee has this extended preview under the heading "Can a criminal defense lawyer refuse to file an appeal from a guilty plea because of an appeal waiver?" and here is how it starts and a bit of its noting of some broader implications:

The last few decades have seen a sharp rise in the number of plea bargains.  The Supreme Court itself has estimated that 97 percent of federal prosecutions and 94 percent of state prosecutions end in plea bargains.  This increase in negotiated guilty pleas has accelerated a seeming anomaly — appeals from guilty pleas.  In turn, prosecutors now commonly insist on the inclusion of appeal waivers in plea agreements.

This chain of developments, roughly speaking, has led the U.S. Supreme Court to Garza v. Idaho, which it will hear on October 30.  When a defendant’s trial lawyer fails to file an appeal as the client has instructed on the ground that the plea agreement included an appeal waiver, must the defendant demonstrate “prejudice” in order to make out a claim of ineffective assistance of counsel?  Since the Supreme Court’s 2000 decision in Roe v. Flores-Ortega, prejudice has been presumed when a lawyer has failed to file an appeal as directed by the client.  But Flores-Ortega, now almost two decades old, did not involve an appeal waiver.  Garza gives the court an opportunity to address this situation....

The big policy question that underlies this case is to what degree the courts will enforce appeal waivers. A pronouncement in favor of the broad, if not absolute, enforceability of such waivers would promote the smooth functioning of plea bargaining as the principal method of keeping criminal caseloads under control. On the other hand, every Supreme Court decision allowing a defendant to appeal despite an apparent waiver throws an element of doubt into the plea bargaining “market,” as it were. Prosecutors aren’t sure exactly what they are getting in exchange for lighter sentences.

Not everybody wants the plea-bargaining market to function smoothly, though.  In its amicus brief, the libertarian Cato Institute warns that the mushrooming institution of plea bargaining threatens defendants’ effective rights to trial under the Sixth Amendment.  It argues that allowing attorneys to ignore client instructions to appeal undermines client autonomy as enshrined in the criminal procedure portions of the Bill of Rights.

October 30, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

FAMM laments problems in federal prisons while urging Prez Trump to new head for Bureau of Prisons

As detailed in this press release, FAMM President Kevin Ring has now sent this letter to President Trump urging him to appoint a director of for the US Bureau of Prisons ASAP.  Here is how this latter gets started:

I write today to urge you to appoint a reform-minded individual to serve as Director of the U.S. Bureau of Prisons (BOP) as soon as possible. The BOP has been without a permanent director since General Mark Inch’s resignation from the post in May of this year. The void in consistent leadership has caused and exacerbated numerous problems throughout the federal prison system, for both staff and those in custody.

FAMM is in contact with over 35,000 federal prisoners and their family members on a regular basis.  Through our correspondence, we have learned of continual problems plaguing the BOP’s programs and operations.  We hear frequently from prisoners and their families about the lack of adequate medical care or medical attention when requested. We continue to hear about lastminute reductions in halfway house time and continued underutilization of home confinement for low-risk individuals.  We have seen the BOP routinely neglect its role in identifying eligible candidates for the federal compassionate release program, which would allow the courts to consider resentencing terminally ill or elderly prisoners.  We have also learned of several BOP facilities instituting questionable and problematic policies regarding family visits and limiting prisoner access to mail from their loved ones as well as access to books.  Because education and strong family ties are proven to help in the rehabilitation of prisoners, these policies pose a significant threat to successful rehabilitation and should be reversed under new leadership.

October 30, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

October 29, 2018

"Who Locked Us Up? Examining the Social Meaning of Black Punitiveness"

The title of this post is the title of this new quasi-book review authored by Darren Lenard Hutchinson now on SSRN.  Here is its abstract:

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public.  Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being.  The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow.

In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many blacks supported aggressive anticrime policies that gave rise to mass incarceration.  On the surface, this observation potentially complicates arguments that conceive of U.S. criminal law and enforcement as manifestations of white supremacist political power.  Forman’s failure to provide a comprehensive analysis of the racist dimensions of punitive sentiment makes his research subject to such an interpretation.  A deeper analysis, however, reconciles Forman’s research with antiracist accounts of U.S. crime policy. 

In particular, social psychology literature on implicit bias, social dominance orientation, and right-wing authoritarianism provides a helpful context for situating black punitive sentiment within antisubordination criminal law theory.  These psychological concepts could link punitiveness among blacks with outgroup favoritism and in-group stigma that derive from structural inequality and antiblack social stigma.  The social psychology of punitive sentiment, resilience of white supremacy, and conservative political ideology will likely present substantial barriers to the merciful approach to criminality that Forman proposes.

October 29, 2018 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Second Circuit, on third pass of child porn sentence, affirms 25-year prison term it calls "barbaric without being all that unusual"

Back in June I noted here a Second Circuit panel opinion in US v. Sawyer, No. 15-2276, in which a split Second Circuit reversed a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography because the district court, even at a second sentencing, insufficiently addressed statutory sentencing factors and failed "to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  The third time around, the district judge gave a different rationale for imposing a 25-year sentence, and this new split Second Circuit opinion now affirms in an opinion by Judge Jacobs that starts and ends this way:

Jesse Sawyer, having pled guilty to sexual exploitation of children and receipt of child pornography, was originally sentenced primarily to 30 years in prison and a lifetime of supervised release. We ruled that that sentence was shockingly high given Sawyer’s harrowing upbringing and comparatively low danger to the community, and remanded to the district court for resentencing. The district court disagreed with our analysis but found that Sawyer’s exemplary record as an inmate justified a reduction to 25 years. Sawyer returned the matter to our docket, challenging his new sentence on both reasonableness and law‐of‐ the‐case grounds. By order of July 30, 2018, we affirmed Sawyer’s new sentence. We now explain that we did so because the district court effectively complied with our instruction to significantly reduce Sawyer’s sentence and because that sentence is now within the realm of reasonableness....

On this second appeal, Sawyer continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses.... The sentence is barbaric without being all that unusual.

The dissent by Judge Crawford includes these paragraphs at its start:

On resentencing, the district court declined to give any additional weight to either of the factors we identified. The majority accurately describes the district court’s rejection of the appeals court ruling. I intend no criticism of the trial judge.  She was candid about the reasons for her decision and recommended that the case be referred to another judge if we were to conclude that she erred in rejecting our first ruling.  That was an appropriate course of action, and we can ask no more of a judge who cannot in good conscience follow an appellate ruling.

What we cannot do — and where I part company with the majority — is to fail to enforce our original ruling.  Had the district court resentenced the defendant to the same 30‐year sentence, I have no doubt that the other panel members would have joined me in reversing and referring the case to another district judge for a second resentencing. It is not necessary to agree with an appellate ruling, but under any system of the rule of law it is necessary to follow it.

On resentencing in this case, the district court merely changed the subject.  After rejecting our decision, the court found another, previously unavailable reason to impose a reduced sentence. In the district court’s view, the defendant’s two years of model conduct within the prison system after his original sentencing justified a five‐year reduction of sentence.  This new factor led the court to impose a 25‐year sentence in place of the original 30 years.

The majority is prepared to accept the new sentence as reasonable in length and, in effect, call it a day.  I am not. The new sentence still fails to take into proper consideration the two § 3553(a) factors we singled out as the basis for reversal.  That the defendant has since demonstrated other reasons for a reduced sentence is an entirely separate development that fails to justify the district court’s refusal to follow the original mandate.  At this time, we still do not know how a district court which followed the mandate — by giving significant downward weight to the two § 3553(a) factors we identified — would sentence this defendant.  What all three members of this panel unanimously identified as significant substantive errors in the original sentencing decision remain uncorrected.  These errors continue to form the primary basis for the new sentence.

October 29, 2018 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Is it a given that the end of Jeff Sessions' time as Attorney General is drawing nigh?

The question in the title of this post is prompted by this new AP piece headlined "Some Sessions Allies Hope White House Allows Graceful Exit."  Here are excerpts:

Sensing that Jeff Sessions’ days at the Justice Department may be numbered, some of his supporters want the White House to allow for a graceful exit for an attorney general they believe has dutifully carried out the administration’s agenda even while enduring the president’s fury.

It seems unlikely that efforts to soften a possible dismissal after the Nov. 6 midterm election would find sympathy in the White House, where President Donald Trump’s rage remains unabated over the attorney general’s recusal from the Russia investigation. A hand-picked successor could theoretically oversee the rest of the probe in place of Deputy Attorney General Rod Rosenstein.

But some supporters say they hope that if and when Sessions is replaced, his record as senator and attorney general will be recognized and not overwhelmed by Trump’s attacks, or that the administration will at least respect the Justice Department by guaranteeing a smooth transition.

A scenario advocated by at least one Sessions ally, former Cincinnati Mayor Ken Blackwell, would allow him to remain on the job until January and be permitted to resign on his own then rather than be fired immediately after the midterms. Blackwell said allies have made their case to administration officials that Sessions has successfully pushed the president’s core priorities, including on illegal immigration, and deserves some sort of recognition from the White House that “he has more than a passing grade.”

“It is not unknown, from anyone from John Kelly to Jared Kushner, that there is a base of support,” said Blackwell, referring to Trump’s chief of staff and son-in-law. “A portion of that base is ready to continue advocacy for his service.”

Newt Gingrich, a former Republican House speaker who is close to the White House and calls himself a longtime “admirer” of Sessions, said he would be open to serving as an intermediary if asked between the White House and Sessions supporters. “He deserves a graceful exit. His career deserves a strong conclusion,” said Gingrich, who called Sessions “a strong conservative who has done strong work at the Department of Justice.”...

The president, though mindful that Sessions remains popular among much of his base, would seem unlikely to sign off on a plan to extend Sessions’ time in office, according to a White House official and an outside adviser familiar with Trump’s thinking but not authorized to publicly discuss private conversations. Trump has repeatedly had to be talked out of firing Sessions before November and has signaled to allies that he wants to make sweeping changes at the Justice Department once the midterms have concluded.

He told The Associated Press this month that he was “not thrilled” with Sessions but made no commitment to dismiss him. If Trump were to wait, it would not be out of deference to Sessions, but rather because the White House would be managing the fallout from the midterms and preparing for a pair of presidential overseas trips in November, according to the official....

Smith said one way Trump could enable a respectful exit would be for the White House to craft a smooth succession plan and allow Sessions to be part of the process.

Ed Meese, a Reagan administration attorney general and Sessions friend, said he wasn’t thinking about Sessions’ departure because “I don’t want to see him fired at all.”

Because AG Sessions seems to be a significant barrier to significant federal criminal justice reforms, I am hopeful his days at the Department of Justice are numbered. But I do not expect him to seek a graceful exits because I do not think he wants to exit.  But especially with talk of a prison and sentencing reform bill being possibly hashed out and passed during the lame-duck Congress of the coming months, I am especially hopeful (but not optimistic) that it is only a matter of weeks before AG Sessions out of his current job.

A few prior related posts:

October 29, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Justice Sotomayor issues another lengthy statement in another capital case in which cert is denied

Justice Sotomayor is starting to make a regular habit of adding some interest to otherwise ho-hum order lists with lots and lots of certiorari denials. Today's SCOTUS order list, for example, gets some intrigue from her statement "respecting the denial of certiorari" in Townes v. Alabama, No. 17–7894. Her five-page statement starts and ends this way:

Today the Court denies review of Tawuan Townes’ capital murder conviction, the constitutionality of which hinges on whether the trial court instructed jurors that they “may” infer his intent to kill a victim or that they “must” do so. The former instruction is constitutional; the latter is not.  There is no way to know for sure which instruction the trial court gave. Two court reporters certified two conflicting transcripts, and the trial court no longer has the original recording.  Because Townes has not shown that the procedures below amount to constitutional error, I must vote to deny his petition for certiorari.  I write separately because the trial court’s failure to preserve the original recording gives cause for deep concern....

The Constitution guarantees certain procedural protections when the government seeks to prove that a person should pay irreparably for a crime.  A reliable, credible record is essential to ensure that a reviewing court — not to mention the defendant and the public at large — can say with confidence whether those fundamental rights have been respected. Parker v. Dugger, 498 U. S. 308, 321 (1991) (“It cannot be gainsaid that meaningful appellate review requires that the appellate court consider the defendant’s actual record”).  By fostering uncertainty about the result here, the trial court’s actions in this case erode that confidence.  That gives me — and should give us all — great pause. 

October 29, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

October 28, 2018

"Mass incarceration isn’t always the issue. Uneven incarceration is."

Title of this post is headline of this recent Washington Post commentary by Charles Lane.  Here are excerpts (with a little cursory commentary to follow):

“Mass incarceration” update: It peaked during the years 2007-2008 and has been quietly but consistently falling ever since. The U.S. prison and jail population that equaled 760 out of every 100,000 people in each of those two years had declined by the end of 2016 to 670 per 100,000, according to the Justice Department.

Does that 11.8 percent drop represent meaningful progress? Well, compared with what? If the standard is the low-violent-crime, low-incarceration norm enjoyed by the United States’ peer nations in Western Europe and Japan, the progress here looks modest at best.  Germany, for example, had an incarceration rate of 76 per 100,000 in 2016, and a murder rate of 1.18 per 100,000, according to the United Nations. 

Yet the United States is clearly headed in the right direction: We have managed to halt and reverse ever-growing incarceration rates, including, crucially, for black men, whose numbers in prison have fallen by about 98,000 since 2009, according to the Pew Research Center. The overall incarceration rate is now at a 20-year low, Pew reports.

Meanwhile, violent crime, despite a troubling uptick in 2015 and 2016, has not reverted to the out-of-control rates of the late 1980s and early 1990s.  According to FBI data released last month, the 2017 U.S. murder rate was 5.4 per 100,000, roughly quintuple Germany’s, but still about half what it was in 1991.

In one significant respect, however, the problem in the United States may be underincarceration.  As a Post team reported in June, murder goes all but unpunished in large areas of numerous U.S. cities, with impunity concentrated in heavily minority areas where police-community relations are at their worst and gang intimidation at its strongest. In Baltimore and Chicago, The Post report noted, police “solve so few homicides that vast areas stretching for miles experience hundreds of homicides with virtually no arrests.”

And because no one seriously questions that murderers and other violent offenders should be imprisoned (indeed, 54 percent of the state prison population is serving time for violent offenses, not drug offenses or other nonviolent crimes), these data imply that, for some U.S. jurisdictions, mass incarceration is not the issue, but rather something possibly more corrosive: uneven incarceration. Minority communities experience a criminal-justice system that simultaneously over- and under-enforces the law....

Despite recent decreases, the United States still incarcerates more people, in absolute numbers and as a share of our population, than any other nation on Earth. This statistic is nothing to be proud of.

Considered in proper context, though, it reflects not only historic social and racial inequalities, and punitive attitudes, but also the fact that the United States is the only large nation on Earth with both a functioning criminal-justice system and a fairly high level of violent crime.

The goal of criminal justice should not be any particular level of incarceration, high or low, but rather fair, consistent and effective enforcement focused on the most repugnant and most socially destabilizing crimes.  We’re not there yet, but compared with the recent past, we are doing better.

I commend this commentary for noting that "we are doing better" on crime and punishment in the US, while also noting that we also still have way too much violent crime and way too much prison punishment in our nation.  These realities should call for, especially after the last few days of hate-fueled crimes, some real soul-searching about what makes America less than great on these metrics.  I certainly have some thoughts on some factors that I think fuel these realities (e.g., disparities, drugs, guns, leadership), but what I think is most important is that any and everyone concerned about either crime or punishment give real thought to the progress we are making and how far we still have to go even when merely compared to any comparable nation.  

October 28, 2018 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

6a00d83451574769e201b7c9134b4d970b-320wiIn this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, sent me an extraordinary 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," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided into three posts all she has to report.  The first post covered "Sentencing Victories," and this one covers "Legal Victories":

Legal Victories

The FCJC’s stash house litigation has also changed the law in a way that makes racially selective enforcement challenges easier to litigate going forward, which in turn will result in better outcomes and lower sentences for clients around the country.  Last week, the Ninth Circuit built on the framework created in a stash house case litigated by the FCJC and became the third federal court of appeals to institute a lower standard for defendants seeking discovery regarding racially selective law enforcement.

In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC on appeal, the en banc Seventh Circuit became the first court of appeals in the country to relax the legal standard for defendants seeking discovery to support a race discrimination claim against law enforcement officers.  Davis eroded the onerous standard for obtaining discovery regarding racially discriminatory practices set by the Supreme Court in United States v. Armstrong, 527 U.S. 456 (1996).  Davis went to great lengths to distinguish racially selective law enforcement claims from the racially selective prosecution claim in Armstrong, holding, “[T]he sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations.” Davis, 793 F.3d at 721.  Davis represented a sea change in the law — for the previous 20 years, courts had routinely denied the claims of defendants seeking discovery in support of selective prosecution and selective law enforcement claims alike.

Last year, the Third Circuit joined the Seventh Circuit in drawing a distinction between the two types of claims.  See United States v. Washington, 869 F.3d 193, 216 (3d Cir. 2017). But the Third Circuit took this distinction even further, definitively eliminating two requirements that had made it virtually impossible for defendants to obtain discovery in the twenty years since Armstrong.  Specifically, Washington jettisoned both (1) the requirement under the discriminatory effect prong that defendants provide some evidence that “similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement,” and (2) the requirement that defendants “provide ‘some evidence’ of discriminatory intent. Id. at 221.  The Third Circuit’s elimination of these onerous standards represented an enormous development in the law of discovery for selective enforcement cases.

In United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), the Ninth Circuit built on the framework created in Davis and extended in Washington.  Interestingly, the Ninth Circuit joined the Third Circuit’s holdings without emphasizing or even mentioning that those holdings had dramatically lowered the legal standard.  First, the Ninth Circuit joined the Third in eliminating the biggest barrier to proving the first prong — discriminatory effect — by holding that a defendant could obtain discovery in support of a selective enforcement claim without providing “evidence that similarly-situated individuals of a different race were not investigated or arrested.” Id. at *6.  Second, the Ninth Circuit held that a defendant need not present evidence of both discriminatory effect and discriminatory intent to obtain discovery, but may simply present “some evidence” supporting one prong or the other. Id.  Sellers thus significantly expanded district court discretion to grant discovery.  Judge Nguyen’s concurrence went still further, explaining that evidence that law enforcement was targeting neighborhoods of color is itself proof of discriminatory effect. Id. at *11 (Nguyen, J., concurring).

Prior related post:

October 28, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)