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March 9, 2019

Notable review of juvenile lifers in Tennessee

This local article, headlined "3 takeaways from our review of all 185 Tennessee teen lifers," provides an effective review of the maxed-out incarceration of certain youth in the Volunteer State. Here are excerpts:

In December, activists confronted former Gov. Bill Haslam at an education event and demanded that he grant clemency to Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16.

At the time, the outgoing Republican governor said he wanted to treat the case fairly, along with cases that were similar but had not received the same level of publicity as Brown's case.  Indeed, Brown had celebrities — including Rihanna and Kim Kardashian West — advocating on her behalf, and she had a team of powerful lawyers who volunteered to pursue her freedom.

Ultimately, Haslam decided to grant Brown clemency, calling her sentence too harsh.  And he acknowledged her case was not unique, saying he hoped "serious consideration of additional reforms will continue, especially with respect to the sentencing of juveniles."

In the wake of his decision, the USA TODAY NETWORK - Tennessee spent weeks reviewing the cases of each of the 185 men and women serving a life sentence — or life without parole — for crimes they committed as teens....

Nearly three-quarters of those serving life sentences for crimes they committed before the age of 18 are African-American men.

Here are some of the other breakdowns of the 185 people serving life.  Seven are serving life sentences for crimes committed at age 14; 26 were 15 years old at the time of their crimes; 53 were 16. The rest were 17.  Ten are women.

Fourteen are serving life sentences without the possibility of parole, while the remainder face at least 51 years behind bars before their first chance for a parole hearing.  The oldest is Robert Walker, sentenced to life in prison for murder in 1972 at age 16. He is now 63....

State Sen. Raumesh Akbari, D-Memphis, said many young defendants face childhood hardships and traumas that can be overcome with time and treatment. “There are so many others like Cyntoia,” Akbari said. “It’s so complicated when you’re dealing with loss of life, but we are talking about children,” she said. “As horrific as it sounds that a child committed murder, the person they are now is not the person they will be in 20 years.”

Indeed, in many of the cases the USA TODAY NETWORK - Tennessee reviewed, court records document a history of abuse suffered by the convicted teens.

A 16-year-old girl sentenced to life in prison in the stabbing death of her mother was repeatedly forced to watch her mother have sex with multiple men.

A 15-year-old boy whose stepfather regularly beat his mother got into a confrontation with the man while asking if he would let them peacefully leave. The boy beat the stepfather to death with a baseball bat.

A 17-year-old boy killed his father after what he and his mother described as years of physical and emotional abuse that had been reported to the state. The father threatened to beat the boy after a suicide attempt and withheld mental health medication, according to the mother. The boy shot his father with a rifle and stole his truck.

The U.S. Supreme Court issued a pair of rulings in recent years that found mandatory life sentences for juveniles are unconstitutional except in rare circumstances....  In Tennessee, the Supreme Court's rulings have not had an impact because there is no mandatory life sentence. Life sentences with the possibility of parole include a mandatory review after at least 51 years served — a length of time advocates call a virtual life sentence.

This companion article, headlined "In Tennessee, 185 people are serving life for crimes committed as teens," includes this discussion of some talk of legislative change:

Sen. Raumesh Akbari, D-Memphis, said many young defendants face childhood hardships and traumas that can be overcome with time and treatment. “There are so many others like Cyntoia,” Akbari said....

Gov. Bill Lee's spokeswoman said he is “open to proposals addressing juvenile sentencing,” and a new state panel is considering future reforms. But there remains little consensus among Tennessee policymakers on what to do when children kill.

Akbari is trying to change Tennessee law to lower the minimum time served before a chance for parole to as low as 30 years for juveniles. The proposal could give many of the 185 a second chance at life outside prison walls for the first time in their adult lives.

Her effort is grounded in research about adolescent brain development that shows people do not fully develop rational decision-making abilities until their 20s. Other research has highlighted the impact of adverse childhood experiences on the developing brain, including sexual and physical abuse, poverty and incarcerated parents — events that can negatively wire some children’s brains.

March 9, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (1)

"Criminal-Justice Apps"

The title of this post is the title of this interesting essay authored by by Adam Gershowitz recently posted to SSRN.  Here is its abstract:

In recent years, lawyers, activists, and policymakers have introduced cell phone applications -- “criminal justice apps” -- that are very slowly beginning to democratize the criminal justice system.  Some of these apps -- such as DWI apps -- teach citizens about the law, while also connecting them with lawyers and bail bondsman.  Policymakers have created apps to help defendants navigate confusing court systems.  Still other apps are grander in purpose and seek to bring systemic changes to the criminal justice system.  For instance, the ACLU has designed an app to fight wrongful seizures and police brutality by recording police interactions. A non-profit has created an app to aggregate spare change and use it to post bail for the indigent.  This essay explores the universe of criminal justice apps and considers how they are likely to result in modest improvements to the criminal justice system.

March 9, 2019 in Technocorrections, Who Sentences | Permalink | Comments (0)

March 8, 2019

Senator (and Prez candidate) Cory Booker introduces "Next Step Act of 2019" with wide array of sentencing and criminal justice reforms

As set forth in this press release, "U.S. Senator Cory Booker (D-NJ), a member of the Senate Judiciary Committee, and Congresswoman Bonnie Watson Coleman (D-NJ) today introduced a sweeping criminal justice bill — the Next Step Act  — that would make serious and substantial reforms to sentencing guidelines, prison conditions, law enforcement training, and re-entry efforts."  Here is more about this new (lengthy) legislative proposal from the press release:

The Next Step Act is the most comprehensive criminal justice bill to be introduced in Congress in decades. "It's been 75 days since the First Step Act was signed into law, and already, it's changing lives," Booker said.  "But the First Step Act is just as its name suggests — it is one step on the long road toward fixing our broken criminal justice system. There's more that remains to be done so that our justice system truly embodies those words etched onto our nation's highest court â?“ 'equal justice under law.' That's exactly what the Next Step Act does. It builds off the gains of the First Step Act and pushes for bolder, more comprehensive reforms, like eliminating the sentencing disparities that still exist between crack and powder cocaine, assisting those coming out of prison with getting proper work authorization and ID documents, reducing the barriers formerly incarcerated individuals face when they try to find jobs, and ending the federal prohibition on marijuana."...

Specifically, the Next Step Act would:

  • Reduce harsh mandatory minimums for nonviolent drug offenses: the 20-year mandatory minimum would be reduced to 10 years, the 10-year mandatory minimum would be reduced to 5 years, and the 5-year mandatory minimum would be reduced to 2 years.

  • Eliminate the disparity between crack and powder cocaine sentences (currently it is 18:1)

  • End the federal prohibition on marijuana, expunge records, and reinvest in the communities most harmed by the War on Drugs.

  • "Ban the Box" by prohibiting federal employers and contractors from asking a job applicant about their criminal history until the final stages of the interview process, so that formerly incarcerated individuals get a fairer, more objective shot at finding meaningful employment.

  • Removing barriers for people with criminal convictions to receiving an occupational license for jobs, such as hair dressers and taxi drivers.

  • Reinstate the right to vote in federal elections for formerly incarcerated individuals (blacks are more than four times as likely than whites to have their voting rights revoked because of a criminal conviction).

  • Create a federal pathway to sealing the records of nonviolent drug offenses for adults and automatically sealing (and in some cases expunging) juvenile records.

  • Ensure that anyone released from federal prison receives meaningful assistance in obtaining a photo-ID, birth certificate, social security card, or work authorization documents.

  • Improve the ability of those behind bars to stay in touch with loved ones, by banning the practice of charging exorbitant rates for phone calls (upwards of $400-$500 per month) and ensuring authorities take into consideration where someone's kids are located when placing them in a federal facility, a circumstance that acutely impacts women since there are far fewer women's prisons than men's prison.

  • Provide better training for law enforcement officers in implicit racial bias, de-escalation, and use-of-force.

  • Ban racial and religious profiling.

  • Improve the reporting of police use-of-force incidents (currently the Department of Justice is required to report use-of-force statistics to Congress, but states and local law enforcement agencies are not required to pass that information on to federal authorities, creating a significant gap in data that could be used to improve policies and training).

The Next Step Act is an effort to build upon the momentum of the First Step Act, which was signed into law late last year and which represents the biggest overhaul to the criminal justice system in a decade.  Booker was a key architect of the bill — he was instrumental in adding key sentencing provisions to the package after publicly opposing the House-passed version of the First Step Act first released in May 2018.  Booker also successfully fought to include provisions that effectively eliminated the solitary confinement of juveniles under federal supervision and banned the shackling of pregnant women.

The Next Step Act is based upon a number of individual bills Booker has authored, co-authored, or co-sponsored since arriving to the Senate in 2013, including the Marijuana Justice Act, the Fair Chance Act, the REDEEM Act, the Ending Racial Profiling Act, the Smarter Sentencing Act, the Dignity for Incarcerated Women Act, the Democracy Restoration Act, and the Police Reporting Information Data and Evidence Act.

I would be quite excited by a number of the substantive provisions in this bill if it had any chance of moving forward in any form.  But, for a host of political and practical reasons, this bill really serves more as Senator Booker's statement of aspirations rather than as a serious attempt to get something specific passed by Congress in the coming months.  Nevertheless, I am inclined to compliment the Senator for having so many big criminal justice reform aspirations, and the introduction of this bill will help ensure that Senator Booker keeps attention on criminal justice reform as he moves forward with his presidential campaign.

March 8, 2019 in Campaign 2020 and sentencing issues, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

"3 more steps to make 'First Step Act' work"

The title of this post is the headline of this recent Hill commentary authored by Jessica Jackson. Here are excerpts:

The First Step Act aims to transform the federal prison system, prioritize rehabilitation over punishment, and reform some of our nation’s harshest prison sentences — remnants of the outdated War on Drugs.  While getting any meaningful legislation signed into law is worthy of celebration, in most cases it is just the beginning of a much longer battle. The hard work — the part that goes mostly unnoticed — is turning intentions into actual programs, procedures and outcomes for real people. To meet those goals, the Trump administration and Congress must follow through and implement the law quickly, fully and fairly.

Some of the most important provisions have taken effect immediately....  A total of four sentencing reforms began to take effect in courtrooms across the country the day after the bill was signed. In total, they will impact 25,000 defendants every year.

But challenges to fully implementing other provisions have been significant.  Just hours after President Trump signed the First Step Act into law, the federal government entered what would become the longest partial shutdown in history.  Key employees at the Department of Justice and White House were furloughed.  To add to the chaos, the Senate had not yet confirmed an attorney general.  The Bureau of Prisons has not had a permanent director since May 2018, when Mark Inch resigned.

Because of the lack of permanent leadership and the heated battle over border security funding, the first deadline laid out in the First Step Act came and went without effective action.  By Jan. 21, the Department of Justice was supposed to form an Independent Review Committee, which would be responsible for working with the Bureau of Prisons to create a new Risk and Needs Assessment across the federal prison system. One of the most critical components of the new law, the Risk and Needs Assessment System is relied upon by other key provisions.  The Review Committee has not yet been formed and further delays could significantly derail implementation efforts....

Now that leaders in Congress have reached a budget deal to fund the government through September and Attorney General William Barr has taken his oath of office, implementation of the First Step Act must pick up the pace and make up for lost time.

First, Attorney General Barr should nominate a permanent Director of the Bureau of Prisons and establish a credible and committed leader to steer the Bureau into a better future....

Second, Congressional Appropriations committee members must continue the bipartisan spirit that carried the First Step Act onto President Trump’s desk.  They can do so by fully funding the bill in Fiscal Year 2020.  This funding will allow for the valuable programming that will help people change their lives and earn time off the amount of time they have to serve behind the prison bars.

In fact, appropriators gave BOP $200 million more than the president’s budget requested, leaving ample flexibility to begin to implement the bill’s provisions.  As passed, First Step will require $75 million a year for five years to fund the expansion of prison programming and reentry preparedness.  This funding will become necessary after the Risk Assessment system is completed.  It will also allow people inside the prisons to take valuable, life-changing classes to prepare them to come home job-ready.

Finally, Congress must wield its oversight powers to ensure that implementation moves forward effectively and efficiently.  It is important to note that I am not calling for partisan hearings where House Democrats can score political points beating up on the administration’s failings.  Nor am I calling for opportunities for hard-line Senate Republicans to continue to trumpet the alleged dangers of being “soft on crime.”

Now that the First Step Act is the law of the land, both parties have good reason to keep a close watch. President Trump championed this bill as a rare bipartisan win for his administration.  Democrats vying for their party’s nomination have campaigned on the impact the bill will have on our justice system.  Nobody wins and everybody loses (most of all people in prison and their loved ones) if the First Step does not live up to its promise.

March 8, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

March 7, 2019

Paul Manafort given (only?) 47 months in prison at first federal sentencing

I worried that my prediction this morning that Paul Manafort would get 100 months at his first federal sentencing was a little low.  Turns out, I was way too high: he got only 47 months today.   Here are some details from The Hill:

A federal judge on Thursday sentenced former Trump campaign chairman Paul Manafort to 47 months in prison, well below the amount recommended in sentencing guidelines. The sentence handed down by Judge T.S. Ellis III, a Reagan appointee, was significantly less than the 19.5 to 24 years advised in federal guidelines.

Ellis, in remarks from the bench, described Manafort’s financial crimes as “very serious” but said the guideline range was “not at all appropriate,” and pointed to significantly more-lenient sentences handed down in similar cases.

Manafort, who turns 70 next month, appeared in court in a wheelchair and wore a green jumpsuit. His prison sentence will include time served, meaning nine months will be knocked off for the time he has already spent in jail. As a result, he will be incarcerated for three years and two months.

He was also ordered to pay a $50,000 fine and up to $24 million in restitution.

“You’ve been convicted of serious crimes -- very serious crimes -- by a jury,” Ellis said to a packed courtroom after a lengthy sentencing hearing in federal court in Alexandria, Va., that lasted nearly three hours. However, he added, “I think that sentencing range is excessive. I don’t think that is warranted in this case.”

Manafort’s attorneys earlier this month asked for leniency, citing their client’s age, poor health, low risk of reoffending and assistance in Mueller’s probe. On Thursday, defense attorney Thomas Zehnle pointed to other cases in which defendants received much less prison time for similar crimes.

In remarks shortly before receiving his sentence, Manafort described himself as “humiliated and ashamed” of his behavior and for the pain he had caused his family. He thanked Ellis for a fair trial twice and asked him for compassion. “My life professionally and financially is in shambles,” Manafort said. “To say that I feel humiliated and ashamed would be a gross understatement,” “I intend to turn my notoriety into a positive.”

However, Manafort did not express remorse for his actions -- something Ellis noted before handing down the punishment. “I was surprised that I did not hear you express regret,” said Ellis. “That doesn’t make any difference on the judgment that I am about to make … but I hope you reflect on that.”

Manafort was convicted by a jury in August of eight criminal charges -- five counts of filing false tax returns, two counts of bank fraud and one count of failing to report foreign bank accounts. The financial crimes were uncovered during special counsel Robert Mueller’s Russia investigation. His case in the U.S. District Court for the Eastern District of Virginia marked the first criminal trial in the Mueller probe. But as the defense noted, Manafort’s crimes had nothing to do with Russian election meddling or collusion with the Trump campaign....

To avoid a second criminal trial on separate charges in Washington, D.C., Manafort reached a plea deal with Mueller that involved his full cooperation with federal prosecutors. But the federal judge presiding over his case in D.C. found that he lied to investigators and a federal grand jury about subjects “material” to Mueller’s investigation into Russian meddling and possible coordination between the Trump campaign and the Kremlin.

Manafort was initially scheduled for sentencing in early February, but Ellis postponed the hearing to let Judge Amy Berman Jackson in D.C. determine whether Manafort’s misstatements were unintentional, as he had argued. Ellis said at the time he thought Jackson’s ruling could impact his own sentencing of Manafort.

Sentencing in the D.C. case is scheduled for Wednesday. He faces a maximum of 10 years in prison for conspiracy against the U.S. and conspiracy to obstruct justice by tampering with witnesses. Jackson will decide whether he should serve those years consecutively or concurrently with the ones handed down by Ellis.

Manafort could walk free from federal punishment if President Trump decides to pardon him, but it’s unclear whether the president plans to pursue that avenue. The New York Times recently reported that Manhattan District Attorney Cyrus Vance Jr. is planning to bring state charges against Manafort regardless.

A few quick points in reaction:

1.  Though I do not know exactly when Manafort will get out, I can confidently predict he will not serve exactly 47 months for two reasons: (a) he may get consecutive time at his next sentencing next week (and I suspect he will), and (b) he will surely earn good-time credits and perhaps have others means of getting released earlier as an elderly offender. (Good-time credit alone could get him seven months off possibly resulting in his release before the end of 2021 on the sentence he received today).

2.  I have already seen lots of Twitter commentary complaining this sentence is way too lenient, but I sense many of the complaints really stem from folks rightly seeing a lot of other sentences as way too harsh.  Title 18 USC § 3553(a) calls upon a federal judge to impose a sentence "sufficient, but not greater than necessary, to comply with" traditional sentencing purposes.  I have a hard time developing forceful arguments that a nearly four-year prison term for a nearly 70-year-old man, plus a $50,000 fine and $24 million in restitution, is not sufficient in response to a nonviolent crime.

3.  Roughly a decade ago, when Bernie Madoff got a max sentence of 150 years, I speculated in this post about prosecutors using that high number as a sentencing benchmark in all sorts of other white-collar cases.  Now I am thinking that Paul Manafort has produced a new kind of white-collar sentencing benchmark that now should be of great use to defense attorneys.  Notably, not only was Manafort facing a guideline range of 19.5 to 24 years, but he went to trial and never fully accepted responsibility or even showed remorse.  "If unremorseful Manafort only merited 47 months in prison," so the argument should go from many defense attorneys, "this white-collar defendant should get even less."

March 7, 2019 in Clemency and Pardons, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (17)

Ohio Governor officially postpones three more scheduled executions

As reported here a few weeks ago, the new Governor of Ohio has imposed something of a de facto moratorium on executions because of concerns over the state's(historically troubled) lethal injection protocol.  This new local article, headlined "DeWine delays three more executions due to lethal drug concerns," reports on the last official manifestation of this unofficial execution moratorium:

After urging from a federal judge, Ohio Gov. Mike DeWine delayed three more executions today.

DeWine has said he doesn’t want to carry out another execution until the judge’s concerns with Ohio’s current method are addressed. He has directed the state Department of Rehabilitation and Correction (DRC) to come up with a new protocol after federal Magistrate Judge Michael Mertz said the “current three-drug protocol will certainly or very likely cause (the one being executed) severe pain and needless suffering.”

David Stebbins, assistant federal public defender who is involved in Ohio death penalty cases, called the governor’s move “a commendable first step.” But the defense lawyer noted Ohioans still have “no indication of what the new protocol will be, when it will be made public, or what kind of litigation schedule may ensue. On the current schedule, there is no guarantee that proper vetting can occur before the first execution in September.

In January, DeWine issued a reprieve of execution to Columbus killer Warren Henness, who had been scheduled to die Feb. 13.

So this morning DeWine delayed the death dates for Cleveland Jackson, who was scheduled to be executed May 29, to Nov. 13; Kareem Jackson, set for July 10, moved to Jan. 16, 2020; and Gregory Lott, slated for Aug. 14, now scheduled for March 12. This was not the first delay for Lott, a Cuyahoga County killer; he originally was scheduled for execution on Nov. 19, 2014.

DeWine’s office said the reprieves were granted “because it is highly unlikely that the state’s new execution protocol, which is still in the process of being developed by DRC, would have time to be litigated by scheduled execution dates. Governor DeWine is also mindful of the emotional trauma experienced by victims’ families, prosecutors, law enforcement, and DRC employees when an execution is prepared for and then rescheduled.”

A few (of many) prior recent related posts:

March 7, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Proportionality Theory in Punishment Philosophy: Fated for the Dustbin of Otiosity?"

The title of this post is the title of this notable new paper authored by Michael Tonry and available via SSRN. Here is its abstract:

Proportionality theory’s influence is waning.  It is beset by challenges.  Some, such as difficulties in scaling crime seriousness and punishment severity, and linking them, are primarily analytical and of interest mostly to theorists.  Others, such as trade-offs between proportionality and crime prevention, relate to real world applications. 

The big question is whether the challenges are epiphenomenal and portend displacement of retribution as the most intellectually influential normative frame of reference for thinking about punishment.  My best guess is yes.  The lesser question is whether proportionality theory can provide satisfactory answers to core questions about crime seriousness, punishment severity, and links between them.  Alas, it cannot. 

Proportionality theory does, however, support two injunctions with which most people, citizens, scholars, and professionals alike, would say they agree.  First, no one should be punished more severely than he or she deserves.  Second, all else being equal, people who commit more serious crimes should be punished more severely than people who commit less serious ones, and vice versa.  Converting that principled agreement into real-world policies and practices is not easy.  The post-Enlightment values of fairness, equality, justice, and parsimony, however, that underlie proportionality theory are widely accepted and are likely to remain influential even if punishment paradigms once again shift.  Proportionality theory is likely to be eclipsed but not to disappear.

March 7, 2019 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Any bold predictions for Paul Manafort's (first) sentencing hearing?

As reported in this Reuters piece, "President Donald Trump’s former campaign chairman Paul Manafort will be sentenced by a U.S. judge in Virginia on Thursday for bank and tax fraud uncovered during Special Counsel Robert Mueller’s investigation into Russia’s role in the 2016 election."  Here is more reporting setting the basic context:

U.S. District Judge T.S. Ellis could deliver effectively a life sentence to Manafort, 69, if he follows federal sentencing guidelines cited by prosecutors that call for 19-1/2 to 24 years in prison for the eight charges the veteran Republican political consultant was convicted of by a jury in Alexandria last August. The sentencing hearing is scheduled for 3:30 p.m....

Manafort was convicted after prosecutors accused him of hiding from the U.S. government millions of dollars he earned as a consultant for Ukraine’s former pro-Russia government. After pro-Kremlin Ukrainian President Viktor Yanukovych’s ouster, prosecutors said, Manafort lied to banks to secure loans and maintain an opulent lifestyle with luxurious homes, designer suits and even a $15,000 ostrich-skin jacket.

Manafort faces sentencing in a separate case in Washington on March 13 on two conspiracy charges to which he pleaded guilty last September. While he faces a statutory maximum of 10 years in the Washington case, U.S. District Judge Amy Berman Jackson potentially could stack that on top of whatever prison time Ellis imposes in Virginia, rather than allowing the sentences to run concurrently. Jackson on Feb. 13 ruled that Manafort had breached his agreement to cooperate with Mueller’s office by lying to prosecutors about three matters pertinent to the Russia probe including his interactions with a business partner they have said has ties to Russian intelligence. Jackson’s ruling could impact the severity of his sentence in both cases....

Mueller’s charges led to the stunning downfall of Manafort, a prominent figure in Republican Party circles for decades who also worked as a consultant to such international figures as former Angolan rebel leader Jonas Savimbi, former Philippine President Ferdinand Marcos and Yanukovych.

Defense lawyers have asked Ellis to sentence Manafort to between 4-1/4 and 5-1/4 years in prison. They are expected to tell the judge Manafort is remorseful and that the sentencing guidelines cited by prosecutors call for a prison term disproportionate to the offenses he committed. “The Special Counsel’s attempt to vilify Mr. Manafort as a lifelong and irredeemable felon is beyond the pale and grossly overstates the facts before this court,” his lawyers wrote in their sentencing memo.

Prosecutors have not suggested a specific sentence. Mueller’s office, in court filings, said that only Manafort is to blame for his crimes, that he has shown no remorse and that his lies to prosecutors after his guilty plea should be taken into account. “The defendant blames everyone from the Special Counsel’s Office to his Ukrainian clients for his own criminal choices,” prosecutors wrote.

Manafort will be sentenced by a judge who faced criticism by some in the legal community for making comments during the trial that were widely interpreted as biased against the prosecution. Ellis repeatedly interrupted prosecutors, told them to stop using the word “oligarch” to describe people associated with Manafort because it made him seem “despicable,” and objected to pictures of Manafort’s luxury items they planned to show jurors. “It isn’t a crime to have a lot of money and be profligate in your spending,” Ellis told prosecutors.

In my very first post on this case back in October 2017 right after Paul Manafort was indicted, I noted the guideline calculations that would likely mean he was going to be facing at least 10 years of imprisonment if he were convicted of any of the most serious charges against him.  Now, roughly a year and half later, I am tempted to set the "over-under" prediction on his sentence slightly below 10 years.  Though it is hardly a bold prediction, I will here predict that Judge Ellis will impose a sentence somewhere around 100 months.  

Anyone else have predictions or prescriptions for today's high-profile federal sentencing?

Some prior related posts:

March 7, 2019 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (4)

"All Talk and No Action: Arizona’s Mandatory Drug Sentencing"

The title of this post post is the title of this notable new "Policy Perspective" document authored by Greg Glod of the Texas Public Policy Foundation's Right on Crime initiative. The piece includes research, insights and lessons that extend well beyond Arizona, and here is the introduction and part of the conclusion:

Drug use affects millions of people, with more than 23 million people over the age of 12 in the U.S. addicted to drugs or alcohol.  Arizona has some of the strictest drug laws in the country, including mandatory prison sentencing.  Politicians and tough-on-crime state prosecutors claim that mandatory prison sentencing for certain drug offenses helps to reduce crime and drug use.  But are they really working?  Research shows that sentencing drug offenders to mandatory prison time does not reduce crime or drug use — it can actually make both worse. Prisons continue to become overpopulated with drug offenders who are better served with treatment than incarceration.

This paper will provide a brief overview of Arizona’s often confusing drug sentencing laws, discussing threshold amounts that trigger mandatory prison sentencing for drug offenses in Arizona, reasons why they are not working, and will overview what other states are doing instead.  It will conclude by recommending actions for state lawmakers to begin to reverse the negative social and fiscal impact of Arizona’s prison sentencing for drug offenses....

Arizona lawmakers have options for how to deal with the future of Arizona’s mandatory drug sentencing.  To avoid exacerbating the problems that mandatory drug sentencing schemes have created, lawmakers must stop advocating for new mandatory drug sentencing laws.  Nor should they support laws increasing or expanding existing mandatory sentencing schemes.  While every option available in other states is not necessarily appropriate for Arizona, some are, including “safety valve” and de-felonizing marijuana possession.

March 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (0)

March 6, 2019

Norfolk prosecutor appealing to Virginia Supreme Court after circuit judges denied effort to dismiss marijuana cases on appeal

In this post a few weeks ago, I report on an interesting tussle over low-level marijuana prosecutions in Norfolk, Virginia under the post title "Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?".  What gives this story a bit of a "man-bites-dog" quality is the fact that a local prosecutor is seeking to dismiss a bunch of marijuana possession cases, but the local judges are refusing to do so.  Consequently, we get this week's fighting news under the headline "Norfolk's top prosecutor says he's taking fight over pot cases to state Supreme Court":

The city’s chief prosecutor said he will ask the state Supreme Court to force local judges into dismissing misdemeanor marijuana cases, effectively de-criminalizing the drug in Norfolk.  Commonwealth’s Attorney Greg Underwood on Friday sent a letter to the chief judge of the city’s highest court [available here], letting him and the seven other Circuit Court judges know that Underwood would appeal their collective decision to deny motions prosecutors have made over the past two months to abandon those cases.

Two months ago, Underwood announced he would undertake several efforts to achieve what he called criminal justice reform, including no longer prosecuting misdemeanor marijuana appeals.  But since then, at least four judges have denied prosecutors’ requests to dismiss marijuana charges. The tug-of-war adds to the confusion about whether it’s OK to have a small amount of weed in the city.  Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them.

Both Underwood and the judges believe the other side is violating the state constitution’s division of powers, which mandates that “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others.”

Several, including Judge Mary Jane Hall, have said they believe the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws.  In turn, Underwood said the judges are preventing him from exercising the executive power voters gave him when they elected him the city’s top prosecutor.  Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources....

Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, Underwood has said.  In 2016 and 2017, more than 1,560 people in Norfolk were charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi said during a hearing last month. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black.

This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

The judge, Hall, admitted Fatehi made an “extremely compelling case” with his statistics on racial disparities, but said he should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said.  “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Until there’s a resolution, Underwood said in his letter, prosecutors will not handle misdemeanor marijuana appeals when simple possession is the only charge. Instead, the arresting officers will testify against the defendant without the guidance of a prosecutor — akin to the way traffic cases are heard.  This is a common practice in the lower District Court and something the Circuit Court judges have suggested. But circumventing the commonwealth’s attorney’s role in the long term would keep marijuana possession cases alive in Norfolk, thwarting Underwood’s criminal justice reform.

Prior related post:

March 6, 2019 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable Eighth Circuit panel ruling finds due process right of confrontation violated in revocation of supervised release

I am expecting (and hoping) that the Supreme Court thought its pending Haymond case (basics here and here) will soon be adding to the constitutional procedural protections of federal defendants when facing significant punishment based on allegations they have violated their supervised release.  A helpful reader made sure I did not miss, while we await the Supreme Court's further guidance, a notable panel opinion from the Eighth Circuit in US v. Sutton, No. 17-3195 (8th Cir. March 5, 2019) (available here). Here is how the panel opinion in Sutton gets started and a key substantive passage:

Craig Sutton appeals the revocation of his supervised release based on the allegation that he committed assault in June 2016.  At the final revocation hearing, the government introduced videos and transcripts of police interrogations of three witnesses who had a connection to the assault.  None of the three witnesses appeared at the hearing to provide live testimony, and Sutton objected that introduction of their interrogations deprived himof his right to confrontation. The district court overruled his objection. Relying almost exclusively on the interrogations, the district court concluded that Sutton more likely than not committed the assault and revoked his supervised release. We conclude that admission of the interrogations was erroneous and accordingly reverse....

A revocation hearing is not a criminal trial, and a defendant on supervised release is not entitled to the full panoply of protections afforded by the rules of evidence. Morrissey v. Brewer, 408 U.S. 471, 480 (1972); United States v. Black Bear, 542 F.3d 249, 253, 255 (8th Cir. 2008).  Federal Rule of Criminal Procedure 32.1(b)(2)(C) nonetheless gives a defendant the opportunity to “question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.”  See Morrissey, 408 U.S. at 488–89 (“[T]he minimum requirements of due process . . . include . . . the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).”).  This rule requires the court to balance the defendant’s due process right to confront and cross-examine witnesses during such proceedings “against the grounds asserted by the government for not requiring confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986).

Under Bell, the court must evaluate two factors to determine if good cause justifies limiting the defendant’s confrontation rights in a particular case.  First, “the court should assess the explanation the government offers of why confrontation is undesirable or impractical,” such as when “live testimony would pose a danger of physical harm to a government informant.” Id. at 643.  Second, the government must establish “the reliability of the evidence which the government offers in place of live testimony.” Id. To demonstrate good cause, the government must prove both factors; only if it shows “that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable” will good cause exist. United States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994) (quoting Bell, 785 F.2d at 643).

Applying the Bell factors to the testimony of the three witnesses at issue in this case, we conclude that the government failed to meet its burden on either factor and that Sutton was entitled to confrontation.

As the panel explains in a footnote, according the the Eighth Circuit, "because 'a revocation of supervised release is not part of a criminal prosecution,' the right to confrontation afforded at such hearings comes from due process.  United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008)."  This point and the Sutton case more generally serves as a useful reminder of how impactful, doctrinally and practically, the Supreme Court's Haymond case could prove to be.

March 6, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Spotlighting how credit score concern should be part of criminal justice reform agenda

Students in my classes, as well as long-time readers of this blog, know of my tendency to see and say that every societal issue is in some way a sentencing and criminal justice issue. The latest exhibit is this interesting new Hill commentary by Carlos Fernando Avenancio-León spotlighting how credit scores should be a concern for the ever-growing ranks of serious criminal justice reformers. The astute piece is headlined "Without access to credit, ex-cons may return to lives of crime," and here are excerpts:

Every week, more than 10,000 prisoners are released from U.S. prisons and begin the long process of reintegrating into society. For many, a successful reintegration will occur only if they can access the types of credit commonly used by all American citizens, such as credit cards and auto loans. For those unable to borrow, prospects for successful re-entry fall and recidivism risks rise. That’s bad for all of us....

Some estimates suggest a majority of former inmates engage in criminal activity after their release. An oft-cited reason is the hard time former inmates have in finding employment. That is no doubt a serious problem and one that must be addressed. However, special attention needs to be paid to a challenge that receives little: the hurdles they face in obtaining credit.

The crux of the issue for former inmates is that getting locked up typically hurts their credit scores. It’s not that credit bureaus specifically knockdown scores due to incarceration. The problem is, for obvious reasons, it’s difficult to repay loans or satisfy other debts while behind bars, so credit defaults and delinquencies pile up.

The negative financial effects continue even after release, as former inmates face severe discrimination in the labor market. Consequently, former inmates face significant impediments to accessing credit. But here is the paradox: Without credit, such individuals face myriad financial difficulties, from not being able to afford transportation or a place to live to falling victim to predatory lending and even homelessness.

Under such conditions, it is harder to get a job or make positive societal contributions. And more worrisome, such former inmates risk backsliding into criminal conduct.

In a recent study, my coauthor and I found that former inmates are much less likely to have mortgages or auto loans than non-incarcerated individuals (14 and 24 percentage points lower, respectively), and their average credit scores are about 50 points lower. Moreover, within the former inmate population, those experiencing sharper drops in credit availability are more likely to engage in future criminal activity: For each thousand dollars of available credit card limit lost, recidivism increases by 1.4 percentage points.

Accordingly, a history of incarceration and lack of access to credit creates credit-driven crime cycles for this population. Yet, after accounting for credit history and income, former inmates are less likely to default on loans than individuals who have never been incarcerated.

Because former inmates present lower credit risks, lenders extend former inmates slightly more loans, albeit not nearly enough to overcome a lending contraction driven by low credit scores. This does not mean that instances of discrimination in lending against former inmates do not happen. These, however, appear to be the exception rather than the rule....

Unfortunately, reductions in credit scores caused by lower income and defaults while in jail or prison are not easily remedied. Lenders cannot readily distinguish the real reason behind a default. Proper solutions to this dilemma need to be developed together with the affected communities and the organizations that help foster re-entry.

These solutions could include a combination of providing re-entry support and education to formerly incarcerated borrowers, deferments similar to those provided in student loans or during natural disasters, shorter times for defaults to be erased from credit files or even freezing-up their credit while incarcerated.

Carefully considering credit within the discussion of criminal justice reform may provide an important avenue for improving former inmates’ chances of successfully re-entering our society — all of which can help reduce the overall rate of crime. That makes banking on former inmates a worthy investment for all of us.

March 6, 2019 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

March 5, 2019

FAMM sends letter to BOP and DOJ to urge full implementation of key provisions of the FIRST STEP Act

FAMM President Kevin Ring today sent this letter to Deputy AG Rod Rosenstein and Acting BOP Director Hugh Hurwitz urging them to work to fully implement key provisions of the FIRST STEP ACT. Here are a few passages from the start of the three-page letter:

Seventy-four days ago, President Donald J. Trump signed the First Step Act, bipartisan legislation to reform federal sentencing laws and prison policies.  The new law includes provisions to establish an elderly offender home detention program, require the Bureau of Prisons (BOP) to keep incarcerated individuals closer to their families, and increase the amount of good time from 47 days to 54 days per year, among others.  We are writing to urge you to implement these changes as expansively and quickly as possible.

FAMM is a national sentencing and prison reform organization with deep ties to people who are incarcerated and their loved ones.  FAMM regularly writes to nearly 40,000 federal prisoners and their families and loved ones with news about legal, legislative, and policy developments that could affect them.  And, we hear from many prisoners about their experiences.

We have heard from dozens of individuals who believe their incarcerated loved ones qualify for home detention under the Elderly Offender/Terminally Ill Offender Pilot Program. Section 603 of the First Step Act reauthorized and expanded the pilot program initially provided for in Section 231(g) of the Second Chance Act.  Under this program, certain elderly and elderly terminally ill prisoners may be released from prison early if they are at least 60 years old, have served two-thirds of their sentences, and meet various other requirements.  We believe Congress intended that this program take effect immediately upon passage of the First Step Act and be available in all BOP institutions.

To date, however, we are not aware that anyone has been released or even that the program has been established.  This delay stands in sharp contrast to the Bureau's timely release of program guidance for the expanded compassionate release program, also a product of the First Step Act.  The failure to implement the law in this area has been extremely frustrating for families who are anxious to welcome their elderly and terminally ill loved ones home to serve their sentences.  We urge you to immediately begin implementing Section 603 in all BOP facilities.

March 5, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

"The Case for a Trial Fee: What Money Can Buy in Criminal Process"

The title of this post is the title of this interesting new article by Darryl Brown now available via SSRN. Here is its abstract:

Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty” — harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement.  States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights.  Additionally, defendants can pay for optional advantages.  Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide.  Paying bail yields pretrial liberty.  Diversion programs, for a fee, can supplant ordinary prosecution.  Some defendants can choose their sentence — a fine or jail.  But these opportunities are not available to all; their costs need not match one’s ability to pay.

To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee.  Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas.  In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain.  The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth.  Yet the trial fee also promises positive effects.  It would reduce prosecutors’ most-criticized bargaining tactics — excessively harsh trial penalties — without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes.  And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place

March 5, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Georgia Supreme Court unanimously declares state's approach to lifetime GPS monitoring for sex offenders violates Fourth Amendment

The Supreme Court of Georgia issued a notable unanimous opinion yesterday in Park v. Georgia, No. S18A1211 (Ga. March 4, 2019) (available here), declaring unconstitutional the state's lifetime GPS monitoring requirement for certain sex offenders. The opinion for the court authored by Chief Justice Melton starts this way:

We granted an interlocutory appeal in this case to address Joseph Park’s facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator – but who is no longer in State custody or on probation or parole – wear and pay for an electronic monitoring device linked to a global positioning satellite system (“GPS monitoring device”) that allows the State to monitor that individual’s location “for the remainder of his or her natural life.” Id. at (e). For the reasons that follow, we conclude that OCGA § 42-1-14(e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the extent that it does so.

Notably, a concurring opinion by Justice Blackwell seems interested in helping the state legislature find a work around to this ruling. His opinion starts this way:

The General Assembly has determined as a matter of public policy that requiring some sexual offenders to wear electronic monitoring devices linked to a global positioning satellite system promotes public safety, and it enacted OCGA § 42-1-14(e) to put that policy into practice. The Court today decides that subsection (e) is unconstitutional, and I concur fully in that decision, which is driven largely by our obligation to faithfully apply the principles of law set forth by the United States Supreme Court in Grady v. North Carolina, ___ U.S. ___ (135 SCt 1368, 191 LE2d 459) (2015).  I write separately, however, to emphasize that our decision today does not foreclose other means by which the General Assembly might put the same policy into practice.

Our decision rests in significant part on the fact that subsection (e) requires some sexual offenders to submit to electronic monitoring even after they have completed the service of their sentences.  But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.

March 5, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge denies request by Philly DA to vacate state death sentence

As reported in this local article, headlined "Judge denies Krasner office’s request to vacate death penalty in 1984 double murder," an effort by the current Philadelphia District Attorney to undo some work by prior DAs hit a federal snag. Here are the interesting details:

A federal judge on Monday denied a request by the Philadelphia District Attorney’s Office to vacate the death penalty for a Philadelphia man convicted of the 1984 strangulation and drowning deaths of a prominent pastor’s son and daughter-in-law in their East Mount Airy home.

U.S. District Judge Mitchell Goldberg wrote that for three decades, the DA’s Office had “consistently and zealously opposed” inmate Robert Wharton’s efforts to overturn his conviction and death sentence. Early last month, the office informed the judge it would no longer fight the appeal. Max Cooper Kaufman, supervisor of the federal litigation unit under District Attorney Larry Krasner, wrote that the decision came after the office reexamined the case and communicated with the victims’ family.

In his written opinion, Goldberg described the deaths of Bradley Hart, 26, and his wife, Ferne, 31, as “particularly horrific” and noted the DA’s Office didn’t explain the reason behind what he called "this complete reversal of course.” He ordered both parties to submit briefs explaining their positions.

Krasner, a former criminal defense lawyer who took office last year, campaigned on a platform of never seeking the death penalty. His spokesperson, Ben Waxman, said by email Monday that the office had no comment on Goldberg’s ruling “except to say that we are reviewing the opinion and considering next steps in the case." The Federal Community Defender Office, which is representing Wharton, did not immediately respond to a request for comment.

Wharton’s co-defendant, Eric Mason, was sentenced to life in prison. Both men, construction workers from Germantown, were 20 at the time of the murders. Now 56, Wharton is on death row at the State Correctional Institution-Phoenix in Montgomery County.

According to evidence in the case, on the night of Jan. 30, 1984, Wharton and Mason went to the Harts’ home, tied up the couple, and separated them. Wharton choked Ferne Hart with a necktie and drowned her in a bathtub. Mason denied killing anyone, but was accused by Wharton of killing Bradley Hart by forcing his face in water and strangling him with an electrical cord....

In April 1992, the Pennsylvania Supreme Court partially granted Wharton’s appeal, ordering a new sentencing hearing. That December, a second Philadelphia jury reimposed the double-death sentence for Wharton. In December 2002, then-Gov. Mark Schweiker signed his death warrant, but the execution was stayed after Wharton appealed to federal court.

Goldberg in 2012 denied his petition, but an appellate court sent it back to the district judge on just one claim — whether his lawyer was ineffective for failing to tell the jury about Wharton’s adjustment to prison. That was the claim the District Attorney’s Office last month said it would not fight. The DA’s Office also asked the judge to grant summary relief by taking the death penalty off the table and said that if the judge did so, prosecutors wouldn’t seek a new death sentence in state court.

Krasner has received pushback by the judiciary in at least one other case in which his office tried to throw out a death sentence. In October, Pennsylvania Supreme Court Justice Christine Donohue wrote in a majority opinion that a jury had approved the death penalty for Lavar Brown, and the DA’s Office couldn’t change that result “based upon the differing views of the current office holder.”

Pennsylvania’s death penalty has been used just three times since it was reinstated by the state in 1978. Gov. Tom Wolf imposed a moratorium on its use in 2015. Wolf’s spokesperson said Monday that the governor believes the moratorium should continue in light of a June 2018 report by a bipartisan legislative task force and advisory committee, which found various problems concerning the death penalty.

Because I have not yet had time to find Judge Goldberg's opinion, I am disinclined to comment on the specifics yet. But the case presents a fascinating set of issues concerning finality, prosecutorial discretion and the interplay of federal and state authority over capital prosecutions. And, as it always the case when I learn about long-running capital cases, I cannot help but wonder what litigation over the death penalty has cost (and will continue to cost) state and federal taxpayers here.

March 5, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

March 4, 2019

Third Circuit panel rules sex offenders subject to registration laws in Pennsylvania are "in custody" for habeas purposes

Last week, a unanimous panel of the Third Circuit issued what seems to be a groundbreaking ruling about habeas jurisdiction. In Piasecki v. Court of Common Pleas, No. 16-4175 (3d Cir. Feb 27, 2019) (available here), the Third Circuit distinguished a variety of contrary rulings from other circuits to hold that a registered sex offender in Pennsylvania is “in custody” for purposes of having jurisdiction to bring a habeas corpus challenge. Here is how the opinion starts and ends:

We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction.  We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.  Accordingly, we will reverse the District Court and remand for further proceedings.....

The writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”  The scope of the writ has grown in accordance with its purpose — to protect individuals against the erosion of their right to be free from wrongful restraints upon their liberty.  SORNA’s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally.  The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction.  For all of the reasons set forth above, the order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

March 4, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

March 3, 2019

Reviewing the modern reality of robust conservative support for criminal justice reform

Long-time readers know I have been talking for a very long time about a possible "new right" on a range of sentencing and corrections issues.  This post way back in January 2005 asked "Is there a 'new right' on criminal sentencing issues?" and this article in December 2008 explained why principled modern conservatives should be troubled by mass incarceration, and this post in November 2010 wondered "When and how will state GOP leaders start cutting expensive criminal justice programming?". 

But, happily, it is no longer cutting-edge to be talking about folks on the right supporting criminal justice reform.  Three years later, it bears recalling that a majority of the GOP candidates for President in 2016 had a record of support for criminal justice reform.  And, remarkably, the one 2016 GOP candidate with arguably the worst record on these criminal justice reform issues (Donald Trump) went on sign the most significant federal criminal justice reform bill in a generation in the form of the FIRST STEP Act.  And, before and since the 2016 election, many conservative leaders in many red states have been actively advocating and securing significant state-level criminal justice reforms.  

These political realities have found interesting expression in recent days, in part because the annual Conservative Political Action Conference (CPAC) that took place last week had more than its share of notable criminal justice programming.  Here are some new articles and commentaries resulting from that conference and the broader realities that its programming reflects:

March 3, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Notable new materials from the Drug Policy Alliance on drug decriminalization in Portugal

There is no shortage of talk about trying to move from a criminalization approach to a public health model in response to drug use and misuse, but there often is a shortage of resources examining efforts to make this move. Thus, I am very pleased to see that the Drug Policy Alliance (DPA) has some terrific new resources on this topic.  This DPA press release, titled "DPA Releases New Briefing Paper & Video, Drug Decriminalization in Portugal: Learning From a Health and Human-Centered Approach," provide a link, background and some details:

The Drug Policy Alliance is releasing a new video and briefing paper examining the human impact and lessons to be drawn from Portugal’s removal of criminal penalties for the possession of drugs for personal use.
 
In March 2018, DPA led a delegation of advocates from 35 racial justice, criminal justice, and harm reduction organizations across the U.S. to Portugal to learn from its health and human-centered approach to drug use.  The group included individuals and organizations representing those hit hardest by the drug war — from those who have been incarcerated for drug offenses to those who have lost loved ones to an overdose. 

Since Portugal enacted drug decriminalization in 2001, the number of people voluntarily entering treatment has increased significantly, overdose deaths and HIV infections among people who use drugs have plummeted, incarceration for drug-related offenses has decreased, and rates of problematic and adolescent drug use has fallen....

By contrast, in the United States, the dominant approach to drug use is criminalization and harsh enforcement, with 1.4 million arrests per year for drug possession for personal use — that makes drug possession the single most arrested offense in the United States. Disproportionately, those arrested are people of color: black people are three times as likely as white people to be arrested for drug possession for personal use.  In addition to possible incarceration, these arrests can create devastating barriers to access to housing, education and employment that systematically oppress entire populations.  Meanwhile, 72,000 people are dying every year of overdose in the United States....
 
While several other countries have had successful experiences with decriminalization — including the Czech Republic, Spain and the Netherlands — Portugal provides the most comprehensive and well-documented example. The success of Portugal’s policy has opened the door for other countries to rethink the practice of criminalizing people who use drugs.  Delegation participants generally agreed that it’s time for the United States to do so as well.
  
“I really would love to see the public health community step up and really demand that the criminal justice system separate themselves,” said Deon Haywood, executive director of New Orleans-based Women With A Vision, who joined DPA’s delegation.  “They need to divest from each other. Addiction should be handled as a public health issue.  Drug use should be handled as a public health issue.  The criminal justice system needs to let go.” 
  
As detailed in a recent DPA report, It’s Time For the U.S. to Decriminalize Drug Use and Possession, there’s an emerging public, political, and scientific consensus that otherwise-law-abiding people should not be arrested simply for possessing an illegal drug for personal use.  A broad range of stakeholders — from the American Public Health Association & World Health Organization to the Movement for Black Lives & NAACP — have taken positions in favor of drug decriminalization.

March 3, 2019 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)