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December 22, 2018

More notable state clemency developments for the holiday season

In this post a few days ago, I flagged some notable recent clemency grants by Governors in Arkansas and Colorado and Pennsylvania (while also lamenting that Prez Trump has not followed up a lot of big clemency talk with any big clemency action). With the Christmas holiday nudging every closer, I am not surprised (though still pleased and grateful) that Governors in a few more states are using the ink their clemency pens. Here is another round-up of notable new state clemency stories:

Colorado: "Hickenlooper orders clemency for 33 Colorado offenders, including 7 men convicted of murder"

Michigan: "Gov. Rick Snyder grants clemency to lifer Melissa Chapman, 60 others"

Pennsylvania: "Wolf grants clemency to two more inmates, including one midstate woman"

Tennessee: "Tennessee Governor Granted Clemency To 11 People, Cyntoia Brown Not Included"

Texas: "Christmas clemency: Gov. Greg Abbott pardons six Texans, two for marijuana possession"

December 22, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Federal judiciary has funds for three weeks of shutdown operations ... so let the FIRST STEP Act litigation begin

This notice from the US Courts, headed "Judiciary Operating During Shutdown," reports that "despite a partial shutdown of the federal government that began on Dec. 22, 2018, the Judiciary remains open and can continue operations for approximately three weeks, through Jan. 11, 2019, by using court fee balances and other funds not dependent on a new appropriation."  Here is more:

Most proceedings and deadlines will occur as scheduled. In cases where an attorney from an Executive Branch agency is not working because of the shutdown, hearing and filing dates may be rescheduled.  The Case Management/Electronic Case Files (CM/ECF) system also will remain in operation for electronic filing of documents.

If the shutdown were to continue past three weeks and exhaust the federal Judiciary’s resources, the courts would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers.  Under this scenario, each court and federal defender’s office would determine the staffing resources necessary to support such work.

I sure hope the folks inside the Beltway can get their act together to avoid having the shutdown extend past January 11, and my law nerd heart is warmed by reading "Most proceedings and deadlines will occur as scheduled" until then. Moreover, as the title of this post hints (and as I will be discussing in a few follow-up posts), I think there some important new legal arguments to make (and some old legal arguments that are stronger) now that the FIRST STEP Act is the law of the land. I sincerely hope lawyers and advocates are already getting at least some of those arguments ready for court, and thus I am pleased the courts are still open for business despite the shutdown.

December 22, 2018 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

December 21, 2018

Bureau of Justice Statistics releases results of the 2017 National Crime Victimization Survey

As reported in this press release and as fully detailed in this 30-page report, the Bureau of Justice Statistics has just published the results from its annual survey of households about their experiences with crime.  Here is how the survey is exampled in these documents: "The NCVS collects information on nonfatal violent and property crimes against persons age 12 or older, whether or not these crimes were reported to police, from a nationally representative sample of U.S. households. Respondents are asked about the number and characteristics of crimes they have experienced during the prior six months." And here are the statistical basics via the press release:

There was no statistically significant increase from 2016 to 2017 in the number of residents age 12 and over who had been victims of violent crime during the prior six months, while there was a statistically significant increase from 2015 to 2017. The overall number of victimizations that occurred, reflecting the total number of times people were victimized, did not increase significantly over either a 1- or 2-year span.

These 2017 findings follow a statistically significant increase in the number of victims of violent crime from 2015 to 2016.

From 2016 to 2017, trends were mixed among individual crime types. The rate of robbery victimizations rose from 1.7 per 1,000 residents age 12 or older in 2016 to 2.3 per 1,000 in 2017. Meanwhile, the burglary rate dropped from 23.7 victimizations per 1,000 households in 2016 to 20.6 per 1,000 households in 2017. In the NCVS, robbery is defined as theft or attempted theft directly from a person by force or threat of force, and burglary is the unlawful or forcible entry or attempted entry of a residence or other non-commercial structure, such as a garage or shed.

The portion of U.S. residents age 12 or older who had been a victim of violent crime during the prior six months increased from 0.98 percent in 2015 to 1.14 percent in 2017. This 2-year rise in the prevalence of violent crime was driven primarily by an increase in simple assault (which is generally non-felony assault).

For the second straight year, the number of victims of violent crime was higher than in 2015. The number of persons age 12 or older who had been victims of violent crime rose from 2.7 million in 2015 to 2.9 million in 2016 (up 9 percent from 2015) and 3.1 million in 2017 (up 17 percent from 2015). The 2-year increase in the number of violent-crime victims was 455,700.

From 2016 to 2017, the portion of persons victimized by violent crime increased among females, whites, those ages 12 to 17, those age 65 and over, and those who were divorced or had never been married. The portion of Asians victimized by violent crime, however, decreased. From 2015 to 2017, the portion of persons who were victims of violent crime increased among males, whites, those ages 25 to 34, those ages 50 to 64, those age 65 and over, and those who had never been married.

Overall, property crime decreased from 2016 to 2017, falling from 118.6 victimizations per 1,000 households to 108.4. This decrease followed an increase in property crime the previous year, from 110.7 victimizations per 1,000 households in 2015 to 118.6 in 2016.

Based on the 2017 survey, about 45 percent of violent victimizations and 36 percent of property victimizations were reported to police. The percentage of rapes or sexual assaults that were reported to police rose from 23 percent in 2016 to 40 percent in 2017.

I think it fair to say that this metric determined that violent crime ticked up a bit in 2017, but not as much as in prior years, and property crime during the same period trended downward.

December 21, 2018 in National and State Crime Data | Permalink | Comments (1)

Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

President Donald J. Trump officially signed the FIRST STEP Act into law today, and I am so very excited that a significant piece of sentencing and prison reform finally became law after years and years and years of talk and effort by so many.  I wish the reform was even more significant, especially on the sentencing side, but something is better than nothing and but for a modest reform to crack sentencing terms, we really have had nothing positive coming from Congress on the sentencing side in more than 20+ years.

The White House has this extended "fact sheet" about the FIRST STEP Act under the heading "President Donald J. Trump Secures Landmark Legislation to Make Our Federal Justice System Fairer and Our Communities Safer."  Here is an excerpt:

CREATING SAFER COMMUNITIES AND A FAIRER FEDERAL JUSTICE SYSTEM: The First Step Act will make our Federal justice system fairer and our communities safer.

  • The First Step Act will help prepare inmates to successfully rejoin society and enact commonsense sentencing reforms to make our justice system fairer for all Americans.
  • Among many reforms, the First Step Act will:
    • Promote prisoner participation in vocational training, educational coursework, or faith-based programs by allowing prisoners to earn time credits for pre-release custody.
    • Expand prison employment program opportunities.
    • Enact fair, commonsense reforms to mandatory minimums.
    • Eliminate the three-strike mandatory life sentencing provisions.
    • Give certain offenders the ability to petition the courts for a review of their sentences.

As the title of this post highlights, I am viewing the enactment of the FIRST STEP Act only as completing stage 1 of achieving significant federal criminal justice reform. Stage 2 involves the critical work of implementation, and so many of the large and small elements of the the FIRST STEP Act involve important and challenging implementation issues. Most obviously, the risk assessment system for prisoner programming and time credits needs to be developed and deployed in a fair and effective way and that is easier said than done. And the instruction that federal prisoners be house, whenever possible, within 500 miles of their homes is easier to describe than to ensure. And the new authority created by the FIRST STEP Act for courts to consider directly so-called "compassionate release" motions for sentence reductions presents a profound opportunity and a profound challenge for taking a second look at extreme (and extremely problematic) sentences.

I could go on and on, but I will save FIRST STEP Act "issue spotting" for the days and weeks ahead (I have created a new category archive for this very purpose).  For now I will just savor needed legal change and congratulate all those on the front lines who worked so very hard to help make this day possible.  Wow!

December 21, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (6)

Some holiday season highlights from Marijuana Law, Policy & Reform

Though it has been well over a month since I did a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, but this is not because there have not been lots of noteworthy marijuana reform developments.  Rather, so much is going on in this space, I cannot come close to keeping up.  Still, here are just some of my recent posts from MLP&R that may be of particular broader criminal justice interest:

December 21, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

December 20, 2018

Some accounts of what should come after the FIRST STEP Act

So far I have be disinclined to blog about what should come after the FIRST STEP Act, in part because the bill is still not yet officially law and in part because I think the most important (and challenging) work right after the enactment of the FIRST STEP Act is taking the many steps necessarily to effectively and expansively apply and implement all of its provisions. But, perhaps unsurprisingly given the modest nature of so many of the provisions of the FIRST STEP Act, a number of fine folks are already writing fine things about next steps. Here is a sampling of some of this writing:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation | Permalink | Comments (4)

Second Circuit panel reverses federal death sentence based on "prosecutorial error" during sentencing phase

A helpful reader made sure I did not miss this 146-page(!) Second Circuit opinion in US v. Aquart, No. 12‐5086 (2d Cir. Dec. 20, 2018) (available here). Here is an overview from the start of the opinion for the panel:

Aquart here appeals both his conviction and his death sentence. As to conviction, he argues that (1) the trial evidence was insufficient to support guilty verdicts on any of the charged VICAR counts, (2) the prosecution suborned perjury by witnesses John Taylor and Lashika Johnson, and (3) he was prejudiced by prosecutorial misconduct in summation. As to sentence, Aquart’s challenges fall into three categories: (1) prosecutorial misconduct at the penalty phase, (2) insufficiency of the evidence as to certain identified aggravating factors, and (3) unconstitutionality of the death penalty both generally and as applied to his case.

The panel affirms Aquart’s conviction but, based on prosecutorial error, vacates his death sentence and remands the case for a new penalty hearing.

There is too much in the 139-page Aquart opinion for the court for me to summarize it here.  But I noticed that a former boss of mine, Judge Calabresi, has this amusing paragraph on an important issue in his short concurrence:

§2.b. Whether Aquart’s Death Sentence is Constitutionally Disproportionate. Because, as the Majority correctly explains, existing Supreme Court Law does not mandate proportionality review, the question of whether, if it did, Aquart would pass that test is entirely hypothetical. (I’m too much an academic to call it academic.) It need not be reached, and I decline to do so

December 20, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

FIRST STEP Act approved by US House by vote of 358 to 36, will become law as soon as Prez Trump signs!!

As reported in this UPI piece, the US House of Representatives "overwhelmingly approved a bill overhauling the country's criminal justice system Thursday, sending the legislation to President Donald Trump's desk for a signature." Here is more:

The chamber approved the First Step Act with a 358-36 vote two days after the Senate passed it by a similar margin of 87-12. Lawmakers expect Trump to sign the legislation into law Friday.

The House approved a different version of the legislation earlier this year and had to amend it to make the Senate version.

Trump has described the reform as "reasonable sentencing reforms while keeping dangerous and violent criminals off our streets." "Congress just passed the Criminal Justice Reform Bill known as the #FirstStepAct. Congratulations!  This is a great bi-partisan achievement for everybody.  When both parties work together we can keep our Country safer. A wonderful thing for the U.S.A.!!" he tweeted.

House Speaker Paul Ryan welcomed passage of the legislation, saying it's something he's "believed in for a long time."

"These reforms to our criminal justice system will not only reduce recidivism and make communities safer, but they will help people into lives of purpose," he said.

HUZZAH!!!

Interestingly, when the prison-reform only versions of this bill received a House vote back in May, only two DOP members voted against it while 30+ Dems voted not because of a concern the bill did not go far enough. With the new version including a few modest sentencing reforms, this time around all Dems voted yea and all 36 nays came from GOP members (as detailed in this final vote tally).

Some of the most recent of many prior related posts as FIRST STEP Act gets ever closer to becoming law:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

State clemency developments during a holiday season still full of (foolish?) hope for clemency boldness from Prez Trump

In this post last week, I noted Prez Trump's tweet talking about how criminal justice reform "brings much needed hope to many families during the Holiday Season."  I stressed that long-promised additional clemency action could provide another means for the President to make families happy and hopeful during this special time of year.  (On that front, it is worth recalling that, as posted here, Prez Trump issued his first commutation of Sholom Rubashkin exactly a year ago today.  His other commutations were to Alice Marie Johnson in June 2018, and then Dwight and Steven Hammond in July 2018.)

While we all continue to wait and hope for Prez Trump to use his historic constitutional clemency power to "bring much needed hope to many families," I thought it worth noting some recent actions on this front at the state level.  Specifically, here are relatively recent stories of Governors in Arkansas and Colorado and Pennsylvania making notable use of their clemency powers:

I suspect there may be some more state clemency grants already issued and still to come, though I keep pushing for Prez Trump to be active on this front because I believe it provides a useful push (and perhaps some political cover) for state executives considering clemency petitions. In particular, a GOP Governor is considering a high-profile clemency cases in Tennessee, Cyntoia Brown as reported here, and any kind of peer pressure is likely beneficial in this context.

A few of many recent related posts: 

December 20, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"California transformed its justice system. But now crime is up, and critics want rollbacks"

La-1545291924-l4bgfb9fvx-snap-imageThe title of this post is the headline of this notable new Los Angeles Times article that merits a read in full. Here is the first part of the piece:

Over the last decade, California has led the nation in reducing its prison population. The state has shortened sentences and diverted some offenders to the counties for incarceration and supervision, transforming California’s criminal justice system into what supporters hope will become a humane model around the country.

But amid the changes, crime has increased in recent years, sparking debate about the causes and giving ammunition to those leading a new effort to roll back some of the reforms.

An analysis by the Marshall Project and the Los Angeles Times found that California’s crime rates remain near historic lows, but overall crime spiked in both 2012 and 2015, the years that immediately followed two major statewide measures aimed at decreasing the number of people in prison. Those jumps were mainly driven by increases in property crimes, particularly thefts from motor vehicles.

After decades of mirroring national downward trends in violent crime, California saw a 12% increase from 2014 to 2017, while the violent crime rate in the other 49 states together increased only 3%, the analysis showed. In 2014, California voters approved a ballot measure that reduced sentences for many low-level drug and property crimes. California’s property crime rate fell slightly in the last two years, but remains 2% higher than it was in 2014. By contrast, the rate of property crimes in the rest of the nation has dropped by 10% over the same period.

There is no simple explanation. Crime trends vary dramatically from county to county. Thirty-one of the state’s 58 counties saw an increase in violent crime last year, while 22 saw an increase in property crimes. The rest stayed flat or declined. What single factor can explain the fact that violent crime went up 6% last year in Los Angeles but fell 6% in Sacramento?

There also have been large differences in the way counties spent the billions in state money allocated to implement the new measures. Some focused on building jails, others on recruiting and deploying police, and still others experimented with collaborative courts and reentry programs.

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To complicate matters, specific crimes come with their own caveats. Reports of rape have increased nationally since 2013, for example, but sexual assaults have traditionally been underreported, and part of the increase stems from the FBI’s decision to broaden its definition of rape in 2013. (The Marshall Project and Times data analysis excluded rape.) Reports of aggravated assaults in California also have increased, but part of that increase is likely due to underreporting from 2005 to 2012 by the Los Angeles Police Department.

California’s criminal reform revolution began in earnest in 2011 after the U.S. Supreme Court approved a cap on the number of inmates in prison. Lawmakers responded by passing Assembly Bill 109, known as realignment, which lowered the prison population by shifting the burden to the counties to house and supervise thousands of inmates convicted of crimes that the law categorized as nonviolent and nonserious.

Three years later, California voters approved Proposition 47, which turned drug use and most theft convictions from felonies to misdemeanors. In 2016, voters overhauled the state parole system by backing Proposition 57, which gave thousands of inmates the chance to earn an earlier release from prison.

The undeniable result of all these measures is that people are on the street today who would have been locked up in previous years. Critics of the reforms argue that they have created a permissive climate that makes policing harder and weakens the deterrent effect of a possible prison sentence.

“There’s no accountability,” said Assemblyman Jim Cooper (D-Elk Grove). “People know they can get away with things. That’s contributed to it. That’s really been a big source of frustration. No one’s going to jail anymore.” Cooper, a retired Sacramento County sheriff’s captain, has been a leading voice in a coalition of prosecutors and law enforcement groups pushing back.

A statewide initiative that will appear on the 2020 ballot would reverse some provisions of Proposition 47, toughen supervision of parolees and disqualify some prisoners from early release.

Backers of the proposed rollback argue that the state’s drug courts, intended as an alternative to criminal courts, are seeing fewer people because prosecutors can no longer force someone into treatment with the threat of a felony. (Some counties, including San Diego, have reported decreases in drug court participation since Proposition 47, but no statewide figures are available.) Those who favor toughening the law also claim counties are struggling to supervise offenders with violent criminal records.

Supporters of the prison downsizing measures dispute any link between the new laws and an increase in crime. They argue that using 2014 as a baseline — the year with the fewest crimes reported in the state since the 1960s — unfairly skews any analysis. “To look at it from a year-to-year basis is very short-sighted,” said Michael Romano, the director of the Three Strikes Project at Stanford Law School who helped write Proposition 47. “We really have had a sustained downward trend over the past decade or two.” He said it’s unlikely any single factor led to an increase in crime, but rather a combination of issues, such as poverty and unemployment, in different counties throughout the state.

Californians for Safety and Justice, a group that co-authored Proposition 47, points out that several states saw larger increases in violent crime than California from 2016 to 2017. (An analysis by The Times and the Marshall Project found 20 states with larger increases in violent crime rates.) They note that none of the recent laws changed penalties for violent crimes.

In 2013, the nonpartisan Public Policy Institute of California found that the first major prison downsizing law, realignment, had no effect on violent crime, but did lead to an increase in auto thefts. In 2016, a prestigious social science journal reached a similar conclusion. Under realignment, people convicted of auto theft, a nonviolent felony, usually serve shorter sentences in their local jails and are released under local supervision.

Two studies published this summer — one by a UC Irvine criminologist and another by the Public Policy Institute of California —found no link between Proposition 47 and increases in violent crime. Both noted a possible link between the initiative and increases in larceny, particularly thefts from motor vehicles, although the Irvine study found those links too tenuous to conclude Proposition 47 was to blame.

After national crime data for 2017 released this fall showed California departed from the national trend — violent crime in California ticked up slightly while it fell slightly across the 49 other states taken together — researchers said they planned to revisit the question of a link between Proposition 47 and violent crime. California’s robbery rate jumped 14% from 2014 to 2017; the rest of the country saw a 7% drop. “It is troubling and deserves more attention,” said Magnus Lofstrom, policy director of corrections at the Public Policy Institute of California.

In addition to praising the work of this article, I wanted to flag the possibility that the stories of crime in California might get even more complicated and unclear if and when we get complete data for 2018. The recent Brennan Center report indicates crime is down in 2018 in some major California cities and that murder is down a lot in all big California cities. If these numbers hold true throughout the state reform advocates will have some important data to push back on the claim that reform rollbacks are needed to enhance public safety.

UPDATE The day after running this general story about an uptick in California crime, the Los Angeles Times followed up with this more encouraging local tale under the headline "Crime once plagued San Joaquin County, but now its jail has empty beds. Here’s what it did right."  The unsurprising take-away is that how and how well a jurisdiction implements criminal justice reform impacts how well criminal justice reform works.

December 20, 2018 in National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

December 19, 2018

US Sentencing Commission provides latest "Sentence and Prison Impact Estimate" for FIRST STEP Act

Back in March of this year, as reported in this post, US Sentencing Commission posted on its website this letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office.  This document included a detailed "Sentence and Prison Impact Estimate Summary" of the impact of S.1917, the Sentencing Reform and Corrections Act of 2017.  That analysis not only detailed the expected impact of an array of provisions in the SRCA, but also confirmed my sense that the prison-reform provisions of that bill could be in many ways more important and impactful than many of its sentencing-reform provisions. 

The FIRST STEP Act, notably, has preserved and even expanded upon some of the prison-reform provisions that were in the SRCA, but it only now has a few of its sentencing-reform provisions.  Still, its impact is likely to be considerable (with just how considerable depending upon its implementation).  And, helpfully, the US Sentencing Commission has now produced this new, updated document titled "Sentence and Prison Impact Estimate Summary, S. 756, The First Step Act of 2018 (as passed by the Senate on December 18, 2018)."  Here is that document's basic accounting of the three biggest impact items of the bill: 

Section 101: Risk and Needs Assessment System

Retroactive Impact: 106,114 eligible offenders were in BOP custody as of May 26, 2018.

Section 402: Broadening of Existing Safety Valve (to offenders with up to 4 criminal history points)

Prospective Impact: 2,045 Offenders Annually; -21.8% Sentence Reduction; Decrease of 1,072 beds in BOP 5 years after effective date.

Retroactive Impact: Not authorized in bill.

Section 404: Retroactive Application of Fair Sentencing Act (to defendants previously sentenced)

Impact: 2,660 eligible offenders were in BOP custody as of May 26, 2018.

December 19, 2018 in Assessing Graham and its aftermath, Data on sentencing, FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Latest issue of the Federal Sentencing Reporter covers "The 2018 Debate over Federal Statutory Reform Proposals"

I am still so full of ideas and thoughts about what's next after the Senate's passage of the FIRST STEP Act, and in some future posts I will link to writings about second and thirst steps and so on.  But, coincidentally, just today I got notice that the December 2018 issue of the Federal Sentencing Reporter has just been published on-line, and it is a must-read for those looking to fully understand the background and back-story of the FIRST STEP Act.  

This Issue of FSR is already a bit dated, as it went to press last month before anyone was sure if Congress would get some version of the bill to the desk of the President.  But it still effectively highlights, thought the work and words of a number of leading reform advocates, why the path toward passage was so challenging and so important.  Here is snippet of my short introduction, followed by links to all the the original commentary:

This Issue of FSR provides a snapshot of the discussion and debate over the direction and scope offederal statutory reform proposals through 2018.  As of this writing, in early November 2018, meaningful lawmaking in this area is still just a possibility rather than an achieved reality; the momentum for reform that built through the first part of the year was halted by campaign dynamics as members of Congress turned their attention to the 2018 midterm elections.  But with President Trump reportedly embracing(in August) a compromise proposal that would add some [sentencing reform] provisions to the FIRST STEP Act, and with Senate Majority Leader Mitch McConnell pledging to consider taking up criminal justice reform after the midterms, there remain reasons to be optimistic that all the big reform talk reflected in this Issue might yet produce big reform action before the end of 2018.

The materials in this Issue of FSR include both original commentary and primary documents that provide a flavor of the terms of the debate, in Congress and beyond, as political realities shifted from not believing any reform was possible during the Trump administration to strategizing just what kinds of reform should be prioritized. Georgetown Law Professor Shon Hopwood, a leading advocate for federal reforms, solicited original commentaries for this Issue that canvass the major provisions of key bills working their way through Congress in 2018.  Authored by some of the leading policy advocates involved on all sides of the conversation, these articles showcase why the scope and focus of statutory reform has engendered spirited debate.

December 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

December 18, 2018

On cusp of enactment of FIRST STEP Act, a brief trip to the archives via the (not-so-)way back machine

01fbcd89144c25425689e251bd5143038d04f0ceI am so full of ideas and thoughts and ways to celebrate the Senate passage of the FIRST STEP Act, I am not sure what to blog first and in the immediate future.  So, rather than do too much looking forward to what the FIRST STEP Act means when it becomes law (especially because I do not want to jinx anything), I figured I would close out my blogging tonight by doing a little looking back.  Specially, I looked at some archives of posts after Prez Trump got elected, and found these interesting posts (among others) that talked about the possibility of federal criminal justice reform  despite Trump's tough-on-crime rhetoric and his appointment of reform for Jeff Sessions as Attorney General:

I was inspired to review this this interest bit of the recent past in part because the developments this week have has me especially thinking about this post by Bill Otis over at Crime & Consequences from almost exactly two years ago titled "Blowing Smoke on Sentencing Reform."  In that post, Bill Otis explained in his usual manner why he was not convinced by this Bill Keller commentary (also noted above titled) "Why Congress May Bring Criminal Justice Reform Back to Life."   Bill Otis was not entirely off-base to assert that sentencing reform was a uphill battle in this Congress, and he might even defend his analysis by noting that the FIRST STEP Act only includes a few very modest sentencing reforms.  But I bring this up because tonight's overwhelming vote for the FIRST STEP Act ultimately reinforces my belief that there is now a strong (and growing) group of GOP leaders who are very eager to take ownership of criminal justice reform.  And that reality bodes well for the prospects of second and third steps in the next Congress and beyond.

December 18, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

After rejection of contentious proposed amendments, FIRST STEP Act passed by Senate by vote of 87 to 12!!!!

In this post back in August I wondered "Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?".  Well, it seems I was off by three votes, as tonight the the US Senate voted 87 to 12 to enact the FIRST STEP Act.  With a vote in the House scheduled for later this week, this bill should be on Prez Trump's  desk before the end of this week and law before Prez Trump heads down to Mar-a-Lago for the holidays.  This USA Today article, headlined "Senate passes First Step Act with push from criminal justice groups; bill goes to House," provides this account of today's historic developments:

Alex Gudich and the team from #cut50 weren’t taking any votes for granted. They spent Tuesday knocking on the doors of senators and urging them to support a criminal justice reform bill up for a vote, something they didn't know would happen that night.

"We knew that it would be a tough vote for many members on both sides," said Gudich, deputy director for the national advocacy group pushing to overhaul the nation’s criminal justice system. "We’re here at a very, very pivotal moment."

In a major step in that effort, the Senate voted 87 to 12 late Tuesday to approve the bipartisan "First Step Act" pushed by Sens. Chuck Grassley, R-Iowa, Dick Durbin, D-Ill., Mike Lee, R-Utah and Cory Booker, D-N.J. The bill must now go over to the House for a vote. President Donald Trump has supported the measure....

The Senate defeated amendments proposed by Republican Sens. Tom Cotton of Arkansas and John Kennedy of Louisiana that would have required the Bureau of Prisons to notify victims before a prisoner is released and tracked former offenders after they're released.

Several advocacy groups, including #cut50, and national civil rights groups, including the National Urban League, have been a part of a massive push to get the legislation passed. “It’s been a long time in raising the awareness of how the system of mass incarceration is so destructive and needs to be fixed and reformed,” said Marc Morial, president of the National Urban League. “There’s been a lot of groundwork that has been laid over the years.”

The groups have been working on criminal justice reforms for years, including under then-President Barack Obama, but supporters said the effort got a boost earlier this year with the help of Jared Kushner, President Donald Trump's son-in-law and senior adviser. “We were excited to see a breakthrough this year and a shift," Gudich said.

Gudich called the First Step Act “a compromise bill, but importantly it does not add any new mandatory minimum. There are no sentencing enhancements.” Some advocates, however, have complained the measure doesn’t go far enough. Morial said he would have wanted more provisions to deal with bail reforms and more support for reentry programs, but welcomes the effort. “If we could get a perfect comprehensive bill, we’d do it," he said. “This bill is also the product of some difficult political trade-offs. But it’s better to move this bill with all the things it does than to sit back and wait. We could end waiting another three to four years."

Lawmakers particularly praised the work and input of advocates and civil rights groups. “Formerly incarcerated individuals were incredibly important voices in urging the House to get something done meaningful on prison reform,’’ said New York Rep. Hakeem Jeffries, incoming House Democratic Caucus Chair, a key negotiator. “Nobody is more authoritative on the issue of the victimization that has taken place as a result of over criminalization as a result of the mass incarceration epidemic then those Americans who were directly impacted.”

Indeed, formerly incarcerated people from a host of groups, including #cut50, Prison Fellowship, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, have lobbied Congress to support reforms. Civil and voting rights groups, including the NAACP and the ACLU, have also been key players along with a host of conservative groups. “We as conservatives share common goals,’’ Kevin Roberts, executive director of the Texas Public Policy Foundation, said during a press conference last week. “We want strong communities and institutions. We want those who have done wrong to be punished and then to seize their own redemption without state interference. Most of all we want safe neighborhoods.”

Morial applauded the passage of the First Step Act, but said more needs to be done. “This is something that we have to work on over time. This bill is a good bill, but this not going to be the last effort at criminal justice reform,’’ he said. “There’s already a lot of movement at the state level… This is a growing movement in America – the idea that we have to fix the system of mass incarceration.”

Some of the most recent of many prior related posts:

UPDATE: I just say that Prez Trump has already tweeted here about this significant legislative development, saying "This will keep our communities safer, and provide hope and a second chance, to those who earn it. In addition to everything else, billions of dollars will be saved. I look forward to signing this into law!"

December 18, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Brennan Center releases its latest (encouraging) accounting of crime in 2018

Ames Grawert and and Cameron Kimble at The Brennan Center have produced this new report titled "Crime in 2018: Updated Analysis."  Here is how it gets started:

In September, the Brennan Center analyzed available crime data from the nation’s 30 largest cities, estimating that these cities would see a decline in crime and murder in 2018. Our report, Crime and Murder in 2018: A Preliminary Analysis, concluded that crime and murder in 2018 are again declining nationwide, continuing the historic downward trend.

This analysis updates the September report and finds that, where data were available, rates of crime, violent crime, and murder in major American cities are estimated to decline through the end of 2018.  However, murder rates in some cities remain above 2015 levels, demonstrating a continued need for evidence-based solutions to violent crime....

• Murder: The 2018 murder rate in the 30 largest cities is estimated to decline by nearly 6 percent. Large decreases this year in Chicago and San Francisco, as well as moderate decreases in other cities such as Baltimore, contributed to this decline.  The murder rate in Chicago — which increased significantly in 2015 and 2016 — is projected to decline by 18.1 percent in 2018.  The murder rate in San Francisco is estimated to fall by nearly 27 percent. Baltimore’s 2018 murder rate is projected to decline by 7.4 percent.

Some cities are projected to see their murder rates rise, including Washington, D.C. (by 39.5 percent), and Houston (by 22.6 percent).  Further study is needed to better understand the causes of these rises.

• Crime: The overall crime rate in the 30 largest cities in 2018 is estimated to decline slightly from the previous year, falling by 1.8 percent.  While this conclusion is based on preliminary data, if the trend holds, the crime rate will fall to its lowest since at least 1990.

• Violent Crime: Violent crime rates are projected to decline in the majority of the 30 largest cities through the end of 2018.  Overall, the violent crime rate is estimated to decrease by 2.7 percent, continuing a downward trend from 2017.

Estimates of crime and violent crime are based on data from 22 of the nation’s 30 largest cities; estimates of murder include data from all 30 cities. While the estimates in this report are based on early data, previous Brennan Center reports have correctly estimated the direction and magnitude of changes in major-city crime rates.

December 18, 2018 in National and State Crime Data | Permalink | Comments (0)

After hinting prison term might be in works, federal judge delays Michael Flynn sentencing to allow further cooperation

Given that both the Special Prosecutor and Michael Flynn were advocating for him to receive a sentence without any incarceration, I thought his sentencing today could have ended up being a staid affair.  But, as reported in this BuzzFeed News account, US District Judge Emmet Sullivan had different ideas: 

Michael Flynn, Trump's former national security adviser, decided to delay his sentencing on Tuesday after a judge harshly criticized him for lying to the FBI and acting as an unregistered agent for Turkey, and warned him that he might get a better sentence if he finished his cooperation with the government first.

It was a stunning turn of events two hours after what was supposed to be Flynn's sentencing hearing began. Throughout the proceedings, US District Judge Emmet Sullivan had repeatedly asked Flynn if he wanted to go ahead with sentencing, given his lawyers' comments about the conduct of the FBI agents who interviewed him and the fact that he might not be completely finished cooperating.

Flynn each time said he wished to proceed. But following a particularly harsh string of criticism from the judge about the crimes he'd committed, Flynn asked for a break to speak with his lawyers. When they returned, Flynn's lawyer Robert Kelner said they wanted to postpone sentencing to give Flynn time to complete his cooperation. The judge agreed. The parties are now due to file a report with the court on the status of his case by March 13.

Flynn's change of heat came after Sullivan warned him that he couldn't guarantee Flynn wouldn't get prison time, given the seriousness of his crimes. Sullivan noted that Flynn had lied to the FBI while serving as a senior official in the White House, and had acted as an unregistered agent for the Turkish government. (The judge initially implied that Flynn did work for Turkey while he was in the White House, but later said he misspoke; the prosecutor said Flynn's work for Turkey ended in November 2017.)

"Arguably, that undermines everything this flag over here stands for," Sullivan said, gesturing to an American flag displayed behind his chair. "Arguably you sold your country out." Sullivan continued: "I'm not hiding my disgust, my disdain for this criminal offense."

Flynn at that point took up the judge's offer of additional time to consult with his lawyers. Before the judge took a break, however, he asked special counsel prosecutor Brandon Van Grack if Flynn could have been charged with treason for his conversations with now-former Russian ambassador Sergey Kislyak in December 2016, after then-president Barack Obama had entered sanctions against Russia for interfering in the election.

Van Grack replied that given the evidence prosecutors had, treason was not something that the government was considering charging Flynn with at the time. Sullivan pressed him, asking if they could have charged Flynn with that crime. Van Grack demurred, saying he was hesitant to answer that question because the offense was so serious.

After the recess, Sullivan said that he hadn't meant to imply that Flynn might have committed treason, he said he was just probing the extent of Flynn's offenses and "was just curious." Van Grack said the government had no reason to believe Flynn committed treason.

Flynn pleaded guilty on Dec. 1, 2017, to one count of making false statements. He admitted lying to FBI agents about his communications in December 2016 with Kislyak while he was serving on Trump's presidential transition team. (He was later accused of lying to Vice President Mike Pence about those contacts as well and resigned). Flynn agreed to cooperate with the government as part of his plea deal; over the past year, according to court filings, he's met with special counsel prosecutors and other Justice Department offices 19 times, for a total of nearly 63 hours.

Flynn was set to become the fifth person sentenced in connection with Mueller's investigation.

Earlier this week, President Donald Trump (in)famously called his former lawyer a "RAT" on Twitter based on his cooperation with federal prosecutors. I wonder if Michael Flynn might soon be getting the same moniker from the President of the United States.

Prior related posts:

December 18, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Convicted poacher sentenced to watch Bambi (really) ... and imagining other crime and Disney movie pairings

Bambi-860x726A couple of helpful colleagues have already made sure I did not miss this local story of a Missouri sentencing.  The press account is headlined "'Bambi' as punishment?  Sentence in SW Missouri poaching case includes mandated viewings," and here are the details:

Four members of a southwest Missouri family have been caught in a multi-year poaching case where authorities say hundreds of deer were killed illegally. “The deer were trophy bucks taken illegally, mostly at night, for their heads, leaving the bodies of the deer to waste," said Lawrence County Prosecuting Attorney Don Trotter.

Conservation agents are calling it one of Missouri's largest cases of deer poaching. The case was so egregious that Lawrence County Judge Robert George ordered a special addition to the jail time one of the poachers received.

Court records show the defendant "is to view the Walt Disney movie Bambi, with the first viewing being on or before December 23, 2018, and at least one such viewing each month thereafter, during Defendants incarceration in the Lawrence County Jail."

The southwest Missouri case involves David Berry Sr. of Springfield, David Berry Jr. of Brookline, and Kyle Berry of Everton. The trio were involved in a multi-year investigation by state, federal and Canadian law enforcement agencies and conservation officers involving suspects in Kansas, Missouri, Nebraska and Canada. David Berry Jr. is the defendant who was ordered to watch Bambi....

On Thursday, Dec. 13, David Berry Jr. received a 120-day sentence in Barton County Circuit Court for a felony firearms probation violation. On Dec. 6, he received a one-year jail sentence in Lawrence County Associate Court after pleading guilty to taking wildlife illegally on Oct. 11. The 120-day sentence Berry Jr. received in Barton County Circuit Court will be served in addition to the one-year sentence he received in Lawrence County.

These convictions were made with information obtained from Operation Game Thief, a hotline sponsored by the Missouri Department of Conservation and the Conservation Federation of Missouri. “It is unknown how many deer the main group of suspects has taken illegally over the past several years,” Lawrence County Conservation Agent Andy Barnes said. “It would be safe to say that several hundred deer were taken illegally.”

Prior to the July 2016 interviews, David Berry Sr. and Eric Berry, 20, Everton, were convicted of taking gamefish by hand in Dade County. During the 2017 firearms deer season, while awaiting his court appearance for violations from the 2016 investigation, Eric Berry and an accomplice were caught spotlighting in Lawrence County. To date, this group of poachers has paid $151,000 in bonds and $51,000 in fines and court costs and collectively served 33 days in jail.

David Berry Sr. and David Berry Jr. had their hunting, fishing and trapping privileges revoked for life by the Missouri Conservation Commission. Eric Berry and Kyle Berry had hunting and fishing privileges revoked for 18 years and 8 years, respectively. Jerimiah Cline, of Republic, who took wildlife illegally and assisted the Berrys, had hunting privileges revoked for five years....

Why take just the deer heads and leave the rest to rot? "In situations like this, with serial poachers who have no regard for the animals, rules of fair chase, or aren’t bothered by the fact that they’re stealing from others, it’s all about greed and ego," said Randy Doman, MDC Protection Division Chief. "Taking just the heads is their version of obtaining a 'trophy' and leaving the carcass behind is merely an afterthought. While there are some cases where poachers go after the antlers for profit, with this bunch it was more about the thrill of the kill itself."

The report that some of these defendants had previously gotten in trouble for "taking gamefish by hand" has me thinking (only half-jokingly) that they should have been ordered to watch Disney's Little Mermaid. And, of course, Disney's Lion King should be a must-watch for that infamous guy who went hunting illegally for Cecil the Lion.  

Especially when we all could use an extra bit of levity in our lives, I have in the title of this post sought to encourage everyone to come up with clever crime and Disney movie pairings.   Would it be so wrong to suggest that Michael Cohen should have been ordered to watch Disney's Robin Hood?  Or that anyone convicted of conducting illegal experiments has to watch Disney's Lilo & Stitch?  (I know that last one is really a stretch, but I wanted to suggest I will no judge silly efforts to spotlight a lesser-known Disney movie in this parlor game).

So, dear readers, what crime and Disney movie sentencing would you find fitting and amusing?

December 18, 2018 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

December 17, 2018

Cloture vote on FIRST STEP Act gets super-majority support in Senate

As reported in this article from The Hill, the "Senate advanced a White House-backed criminal justice reform bill on Monday, paving the way for senators to try to pass the bill as early as Tuesday." Here is more on the vote and what comes next:

Senators voted 82-12 to end debate on the legislation, which merges a House-passed prison reform bill with a handful of changes to sentencing laws.

Twelve Republicans voted against advancing the legislation despite President Trump endorsing the measure in November: GOP Sens. John Barrasso (Wyo.), Richard Burr (N.C.), Tom Cotton (Ark.), Mike Enzi (Wyo.), John Kennedy (La.), Jon Kyl (Ariz.), Lisa Murkowski (Alaska), Jim Risch (Idaho), Ben Sasse (Neb.), Dan Sullivan (Alaska), Mike Rounds (S.D.) and Pat Toomey (Pa.).

The Senate is expected to vote on potential changes to the legislation as soon as Tuesday before taking a final vote on the bill. “There are a number of members with outstanding concerns that they feel are still unresolved. ... The Senate will be considering amendments before we vote on final passage later this week,” Senate Majority Leader Mitch McConnell (R-Ky.) said ahead of the vote.

Though supporters rolled out a final version of the bill last week to try to win over more GOP senators, conservatives, led by Cotton and Kennedy, are expected to get votes on three amendments. Cotton, in a National Review op-ed published Monday, said his potential changes would help "limit the damage" and conservatives who had already said they would support the bill "have jumped on the bandwagon too soon."...

Toomey said in a statement that he was still weighing supporting the bill but voted no on Monday because it will block senators from voting on an amendment that he wanted to offer. “The First Step Act contains worthwhile provisions that seek to improve the criminal justice system and reduce offender recidivism, which is why I am seriously considering supporting it. However, today’s procedural vote was designed to preclude amendments, including one I intended to offer to support victims of crime," Toomey said.

The amendment votes are expected to be held with a simple majority threshold, meaning at least a few GOP senators would need to join with all Democrats to block them from getting added to the bill. Sen. Dick Durbin (D-Ill.), who helped craft the deal along with Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), warned that as currently drafted that he believes Cotton's amendments are "poison pills" meant to undercut the legislation as a whole.

I am pretty sure this all means that the FIRST STEP Act is going to be passed by the Senate in the next few days, though there is still uncertainty as to whether it will be with or without the Cotton-Kennedy Amendments. My understanding is that the House will vote on whatever the Senate passes in short order, so some version of the FIRST STEP Act could be on the desk of Prez Trump even before the end of this week.  Wowsa!

December 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Should Senator Cotton and any others fretting about crime after passage of the FIRST STEP Act focus a lot more attention on crime risks presented by climate change?

The question in the title of this post is my (slightly tongue-in-cheek) way of highlighting a recent research paper published in GeoHealth linking warmer winters to more violent crime.  This paper, which I saw thanks to this post at The Crime Report, is authored by Ryan D. Harp and Kristopher B. Karnauskas, and it is titled "The Influence of Interannual Climate Variability on Regional Violent Crime Rates in the United States."  Here is its abstract and plain language summary:

Abstract

While the impact of climate on regional geopolitical stability and large‐scale conflict has garnered increased visibility in recent years, the effects of climate variability on interpersonal violent crime have received only limited scientific attention.  Though earlier studies have established a modest correlation between temperature and violent crime, the underlying seasonality in both variables was often not controlled for and spatial heterogeneity of the statistical relationships has largely been overlooked. Here a method of spatial aggregation is applied to the United States, enabling a systematic investigation into the observed relationships between large‐scale climate variability and regionally aggregated crime rates.  This novel approach allows for differentiation between the effects of two previously proposed mechanisms linking climate and violent crime, the Routine Activities Theory and Temperature‐Aggression Hypothesis.  Results indicate large and statistically significant positive correlations between the interannual variability of wintertime air temperature and both violent and property crime rates, with negligible correlations emerging from summertime data. Results strongly support the Routine Activities Theory linking climate and violent crime, with climate variability explaining well over a third of the variance of wintertime violent crime in several broad regions of the United States.  Finally, results motivate the development of observationally constrained empirical models and their potential application to seasonal and potentially longer‐term forecasts.

Plain Language Summary

Higher wintertime temperatures lead to higher crime rates across several broad regions of the United States.  We combined more than 30 years of climate and crime data from five U.S. regions with similar climate and found a very strong relationship between temperature and both violent and property crime, particularly in the winter.  That milder winters–when people are more apt to be out and about compared to harsh winters–see that higher levels of crime provides support to a theory that simply increasing the number of interactions between people is likely the primary driver of this climate‐crime connection.

December 17, 2018 in National and State Crime Data | Permalink | Comments (0)

"Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State Court Criminal Convictions"

The title of this post is the title of this new article by Eve Brensike Primus now available via SSRN. Here is its abstract:

State prisoners who file federal habeas corpus petitions face a maze of procedural and substantive restrictions that effectively prevent almost all prisoners from obtaining meaningful review of their convictions.  But it is a mistake to think that habeas litigation is just a Kafkaesque nightmare with no constructive potential.  Federal courts do sometimes cut through the doctrinal morass to consider state prisoners’ claims, relying on what this Essay terms equitable gateways to federal habeas relief.  Litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should.

Here I consider one important category of equitable gateways animated by a concern about ensuring that federal claims get fair consideration in the courts.  When a federal court believes that a state prisoner has not yet had a full and fair opportunity to present her federal claims and have them fairly considered, it is more likely to bypass procedural and substantive restrictions on review.  But state prisoners often fail to highlight certain kinds of fair consideration failures, thus depriving themselves of potential access to the equitable gateways.  This Essay suggests that this blind spot is partly due to the history of fair consideration principles: for decades, the idea of a fair consideration gateway was a central feature of proposals for further restricting the scope of federal habeas review.  In current circumstances, however, fair consideration is a rubric for expanded habeas review, and habeas litigants should take note.

December 17, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Some of Senator Cotton's suspect claims in his latest case for amendments to the FIRST STEP Act

As noted in an update to this prior post, Senator Tom Cotton has this new National Review commentary making the case for his proposed amendments to the latest version of the FIRST STEP Act under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."  This commentary closes with a passage that troubled me, especially when I looked up the facts of the case he discusses.  Here is how Senator Cotton concludes (with a few details emphasized by me for further commentary):

So far the debate over First Step has been clouded by euphemism and abstraction, which has prevented the public from understanding what the bill actually does. A concrete example will help clarify the stakes. Richard Crawford is a former NASCAR driver who was convicted in August of trying to force a twelve-year-old girl to have sex with him. Crawford was sentenced to nearly 11 years in federal prison, but the statute he was convicted under does not appear in First Step’s “ineligible prisoners” list.  If the bill passes, he will therefore be eligible for time credits that would reduce his time in prison by up to one-third, or nearly four years.  At the end of his prison sentence he would be moved into pre-release custody or supervised release.  He would essentially be a free man.

Crawford’s sex crime was not obscure, low-level, or “victimless.”  Quite the opposite.  His crime had the potential to shatter a child’s life.  It was punished accordingly by a judge and a jury of his peers.  That is how criminal justice ought to work in America.  Now a group of politicians and activists are in a position to overturn that public judgment with the First Step Act.  Conservatives should resist this revolution.

The last few sentences of this passage initially troubled me because nothing in the FIRST STEP Act serves to "overturn" a jury conviction or even a sentencing term.  Rather, the FSA creates additional incentives, through "time credits," for offenders to engage in recidivism-reducing programs.  I think the FSA is popular because the "public judgment" is that it would generally be better for Crawford to be released in 2025 after having successfully engaged in this programming than to be released in 2028 without having made any effort to better himself.

But even more irksome to me is how Senator Cotton portrays his poster child, Richard Crawford, because it seems a bit much to say he tried "to force a twelve-year-old girl to have sex with him" given that he was convicted based on law enforcement posing as a man soliciting people to have sex with a fictitious 12-year-old.  This article about the case explains:

Crawford was accused of agreeing to pay $50-$75 to have sex with a 12-year-old girl, making arrangements with a man named Mike on Craigslist.  Mike and the 12-year-old girl were fictitious and used by law enforcement to catch Crawford in the act.  He responded to an undercover federal agent via e-mail and text between Feb. 10 and Feb. 28. According to the agent, Crawford texted him, “Love for her to be naked and ready,” and asked for photos of the girl.  Crawford was arrested at a location at which he agreed to meet “Mike” on March 1 by the Seminole County Sheriff’s Office and was indicted March 30.

Crawford claimed he agreed to the scenario because he didn’t believe it really involved a child.  His defense was detailed in a recent court filing, arguing against a lengthy sentence.  "Mr. Crawford testified that he thought 'Mike,' the person he was corresponding with, was engaging in a fantasy and that he agreed to participate," the filing read. "Mr. Crawford did not believe there would be a minor present; instead, he thought there would be an adult woman, presumably 'Mike's' wife or girlfriend, and that he and this woman would act the roles in 'Mike's' fantasy."

"Mr. Crawford consistently maintained that he had no intent to have sex with a minor, and if a minor had been present, he would not have had sex with the minor.”

A jury rejected Crawford's claims of innocence and convicted him of "attempted enticement of a minor to engage in sexual activity."  But to say he tried to force a 12-year-old to have sex seems off since there never was an actual 12-year-old.  Indeed, I think it fair to call Crawford's crime "victimless," though the case really serves as a great indication of how hard it is to place accurate short-hand labels on various crimes (and how easy it is for Senator Cotton to make a crime sound worse than it was is using short-hand labels).  To allow Crawford, who is 60 years old and appears to have no criminal history, the chance to earn "time credits" by completing evidence-based programming to reduce his risk of recidivism seem to me sensible, not scary.  (And, as I understand matters, if a risk assessment procedure were to classify Crawford as "high-risk" he would not in fact get any sentence reductions.)

We will see in the coming days whether Senator Cotton gets his proposed amendments added to the FIRST STEP Act.  But if Richard Crawford is the worst version of Willie Horton that he can conjure up for the coming debate, I am not at all convinced there is any need to carve out still further exceptions to the prison reform provisions that seem well-conceived to try to reduce the recidivism risk of as many federal prisoners as possible.

Some of the most recent of many prior related posts:

December 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

December 16, 2018

Making the case against amendments to the FIRST STEP Act proposed by Senators Cotton and Kennedy ... UPDATED with a response on 12/17

In this post a few days ago, I provided details and links concerning three amendments that Senator Tom Cotton and Senator John Kennedy will seek to have made to the FIRST STEP Act this coming week.  Unsurprisingly, advocates of significant sentencing reform are not fans of the Senators' proposed changes.  The Brennan Center, for example, has this release explaining that it "strongly rejects attempts by Sens. Tom Cotton (R-Ark.) and John Kennedy (R-La.) to add a series of 'poison pill' amendments that would unacceptably weaken the FIRST STEP Act....  These amendments would stigmatize incarcerated people, block incentives that encourage those who need it most from participating in recidivism-reduction programming, and risk retraumatizing victims of crime."

FreedomWorks has this even longer posting on this front titled "The Senate Must Reject Poison Pill Amendments to the First Step Act."  Here are excerpts that provide a taste of the arguments being made against these amendments:

Aside from the fact that the Cotton-Kennedy amendments have been introduced to hurt the First Step Act’s prospects of passage, there are a number of problems with the amendments that we’ve identified. For these reasons, we encourage the Senate to reject the amendments when they are brought to the floor for a vote.

Amendment 1: Excluding serious felons from early release to prerelease custody and supervised release

This amendment seems to be more of the same type of objections raised by Sen. Cotton in the past regarding the exclusions list on the prison reform side of the bill. The exclusions list is already superfluous because of the risk and needs assessment, which in its operation ensures that those who have committed such heinous crimes as Sen. Cotton has identified, will not become low- or minimum-risk of recidivism in order to earn time credits....

Amendment 2: Notifying victims before a offender is allowed to transfer out of prison early

This amendment masquerades as a harmless addition to promote victims’ rights, which is certainly a sympathetic cause. However, the amendment is not only redundant to current law and policy but its approach is also counterproductive and harmful for victims....

Amendment 3: Tracking the effectiveness of the anti-recidivism programs

This amendment creates redundancy. The U.S. Sentencing Commission already provides detailed information on the recidivism rates of federal offenders. Although the measure of recidivism varies by report, the rates of rearrest, reconviction, and reincarceration are accounted for in many reports.

Although the rate of recidivism defined by rearrest is a common data point in U.S. Sentencing Commission reports, this is a poor measure. It is likely, though, that this measure is the one included in the amendment by its authors on purpose and for that very reason....

Additionally, the First Step Act as it stands already includes multiple mechanisms to ensure the effectiveness of the anti-recidivism programming and other aspects of the legislation as well. The First Step Act includes its own reporting requirements, establishes an Independent Review Committee to report on the system, and requires a Government Accountability Office report of the risk and needs assessment and the programming together.

Some of the most recent of many prior related posts:

MORNING UPDATE on Dec. 17, 2018: I have receive a one-page response to the arguments linked above in a document titled "Myths vs. Facts on the Cotton-Kennedy-Toomey-Kyl-Barrasso amendments to First Step." Here it is for downloading: Download Final Cotton-Kennedy Myths v. Facts

In addition, Senator Cotton has this new commentary at the National Review making the case for his proposed amendments under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."    This commentary closes with a passage that I will be discussing in a subsequent post, but here I will reprint how it starts:

This week, the Senate will vote on the latest version of the First Step Act, a criminal-justice bill that would release thousands of dangerous criminals from federal prison earlier than under current law.  This effort is misguided and dangerous, as I have written before.  Thankfully, there is still time to limit the damage.

Along with Senator John Kennedy, I have introduced an amendment to categorically exclude violent felons and sex offenders from the bill’s time-credit program, which can be used for early release.  We also have amendments to notify victims before a prisoner is released early, and to monitor whether prisoners who are released early commit more crimes. If advocates of First Step want to protect public safety, they will support all three amendments.

December 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing

A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing.  The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:

Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018).  In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing.  Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.

Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read  because of the Justice Appel's extended opinion "concurring specially." This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:

Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts....  The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.

Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context....

We do not know whether the IRR was normed with an appropriate Iowa population.  We do not know whether the tool has been renormed and monitored.  We do not know anything, really, about the database, assuming there is a database, behind the IRR.

I am also concerned about process issues lurking behind this case.  Ordinarily, the PSI report is made available to the defendant only a few days before sentencing.... But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert.  Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information....

In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process.  I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing.  See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011).  I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature.  See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition).  Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender.  Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.

A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process.  In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion.  In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.

December 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (1)

"Justice at any cost? The impact of cost–benefit salience on criminal punishment judgments"

The title of this post is the title of this interesting article recently published in the journal Behavioral Sciences & the Law and authored by Eyal Aharoni, Heather Kleider‐Offutt, Sarah Brosnan and Julia Watzek.  Here is its abstract, along with a couple of paragraph's from the paper's discussion section:

This study investigated the effect of cost–benefit salience on simulated criminal punishment judgments.  In two vignette‐based survey experiments, we sought to identify how the salience of decision costs influences laypeople's punishment judgments.  In both experiments (N1 = 109; N2 = 398), undergraduate participants made sentencing judgments with and without explicit information about the direct, material costs of incarceration.  Using a within‐subjects design, Experiment 1 revealed that increasing the salience of incarceration costs mitigated punishments.  However, when costs were not made salient, punishments were no lower than those made when the costs were externalized (i.e., paid by a third party).  Experiment 2 showed the same pattern using a between‐subjects design.

We conclude that, when laypeople formulate sentencing attitudes without exposure to the costs of the punishment, they are prone to discount those costs, behaving as if punishment is societally cost‐free.  However, when cost information is salient, they utilize it, suggesting the operation of a genuine, albeit labile, punishment preference.  We discuss the implications of these findings for psychological theories of decision making and for sentencing policy, including the degree of transparency about the relevant costs of incarceration during the decision process....

One might wonder whether these results offer any insights into the sentencing judgments of real trial court judges.  Importantly, this study was not designed to generalize to judicial populations and, therefore, is agnostic to the potential role of legal expertise in cost discounting.  However, to the degree that our results capture a general property of human reasoning, they provide justification to separately test judges in future extensions of this work.  Presently in the USA, judges are not typically required or advised to consider sentencing costs in their punishment decisions, but this norm is beginning to be challenged, with some jurisdictions now requiring prosecutors to disclose sentencing cost information to judges (Ewing, 2018).  Presumably judges are well‐versed in such cost information, but the question implied by the new policy and raised by this study is whether recruiting transient attention to this information might influence punishment attitudes.

Research suggests that experts, including judges, are not immune to heuristic reasoning.  Experts have demonstrated susceptibility to many of the same heuristic processes that shape lay reasoning, such as anchoring, base rate neglect, and opportunity cost neglect (Bennett, 2014; Northcraft & Neale, 1987; Vera‐Muñoz, 1998; West et al., 2012; Wong, Aharoni, Aliev, & DuBois, 2015).  Thus, it would not be especially surprising if punishment recommendations by professional judges are also affected by cues that increase the saliency of the costs of incarceration.  If attention to cost information affects judicial punishments, this would confer great power to the external, situational cues that draw our attention.  Such cues might include explicit prompts, for example, about the costs of incarcerating versus releasing a defendant, or the other allowable uses of the available funds.  How best to communicate risk and benefit information to fact finders (e.g., probationary presentencing reports? appellate review?) is the subject of a growing body of scholarship (Chanenson, 2005).  Efforts to understand judicial decision making must necessarily consider the role of communication strategies within existing legal policy and practice.

December 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)