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April 13, 2019

Noting a notable federal prisoner now benefiting from the FIRST STEP Act's elderly offender home confinement program

The New York Times has this notable new article focused on one notable federal offender now benefiting from the FIRST STEP Act.  The headline of the piece indirectly reveals some of its themes: "He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul."  Here are some excerpts from the piece:

Three weeks ago, a 69-year-old man convicted of bank fraud quietly left a federal prison camp in Cumberland, Md., and moved into a friend’s one-bedroom apartment in Manhattan. He was one of the early inmates to benefit from a criminal justice bill signed into law by President Trump.  The law, the First Step Act, offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities.

But one person who benefited from the law was Hassan Nemazee, the prisoner at Cumberland, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.  He was a national finance chairman for Hillary Clinton’s 2008 presidential campaign and later raised hundreds of thousands of dollars for Barack Obama’s first presidential contest.

Mr. Nemazee, who is serving the rest of his sentence in home confinement, acknowledged in interviews that he was not a fan of Mr. Trump, but he felt personally indebted to the president and his aides for pushing through “the most significant prison reform legislation in a generation.”...

Mr. Trump said recently at the White House that “unfair sentencing rules were contributing to the cycle of poverty and crime,” and since the First Step Act’s passage, more than 500 people with “unfair sentences have been released from prison and are free to begin a new life.”  But Mr. Nemazee left prison under a less publicized part of the bill that allows certain offenders who are over 60 and not considered a threat to others to be released into home confinement if they have completed two-thirds of their sentence.

In home confinement, Mr. Nemazee does not wear an ankle bracelet, but officials may call him on a landline late at night or early in the morning to verify he is at home. He may be summoned for a urine test at any time and must submit his weekly schedule for approval, he said.  Still, it feels a lot like freedom.  He may leave his apartment to go to work, the gym, religious services or appointments with his doctors and lawyers. He may also go out to lunch, “which is always a treat, given where I have been the last eight and a half years.”...

The Bureau of Prisons has said that since the bill’s passage, 10 prisoners — of 23 thus far deemed eligible — have been released into home confinement. The bureau would not identify the prisoners or comment on their cases.  Another is reported to be a white-collar criminal named Herman Jacobowitz, 60, who pleaded guilty in Brooklyn in 2005 in another large fraud case and was sentenced to 15 years, according to court papers and a lawyer familiar with the case. Mr. Jacobowitz could not be reached for comment.

Some of many prior related posts on FIRST STEP Act implementation:

April 13, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0)

"Introducing Disruptive Technology to Criminal Sanctions: Punishment by Computer Monitoring to Enhance Sentencing Fairness and Efficiency"

The title of this post is the title of this paper recently posted to SSRN authored by Mirko Bagaric, Dan Hunter and Colin Loberg.  Here is its abstract:

The United States criminal justice system is the most punitive on earth.  The total correctional population is nearly seven million, equating to a staggering one in thirty-eight adults.  Most of the correctional population comprises offenders who are on parole or probation.  The financial burden this imposes on the community is prohibitive.  Further, a high portion of offenders who are on parole or probation offend during the period of the sanction.  This Article proposes an overdue solution to the crisis which exists in relation to the imposition of criminal sanctions.  The solution is especially timely given that there is now a considerable consensus emerging among lawmakers and the wider community that reforms need to be implemented to reduce the cost of criminal sanctions and improve their effectiveness.  Moreover, the United States Sentencing Commission has recently proposed an amendment to increase the availability of sentences which are alternatives to incarceration. 

With little hint of exaggeration, the sentencing system remains in a primitive state when it comes to adopting technological advances.  This Article seeks to address this failing as a means of overcoming the main shortcomings of current common criminal sanctions.  Forty years ago, it was suggested that the most effective way to deal with crime was to assign a police officer to watch over the every move of each offender.  The proposal was dubbed “cop-a-con”.  This would nearly guarantee that offenders did not re-offend, while eliminating the adverse consequences of prison.  This proposal was manifestly unviable due to its excessive costs.  Technological advances now make the concept achievable in a cost-effective manner.

It is now possible to monitor the locations and actions of individuals in live time and to detect crime as it is in the process of being committed.  Adapted properly to the criminal justice system, technology has the potential to totally reshape the nature and efficacy of criminal sanctions.  The sanctions which are currently utilized to deal with the most serious offenders, namely imprisonment, probation and parole can be replaced with technological monitoring which can more efficiently, effectively and humanely achieve the appropriate objectives of sentencing.  Technological disruption in the criminal justice sector is not only desirable, it is imperative.  Financial pressures and normative principles mandate that the United States can no longer remain the world’s most punitive nation.  The sanction suggested in the Article (“the monitoring sanction”) has the potential to more efficiently and economically impose proportionate punishment than current probation and parole systems, while enhancing public safety.

April 13, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

April 12, 2019

Spotlighting concerns about organization tasked with helping Justice Department develop and implement risk and needs assessment tools under FIRST STEP Act

As reported here on Monday, this week the Department of Justice finally got around to announced the selection of the Hudson Institute as the host the Independent Review Committee required by the FIRST STEP Act to help DOJ develop and implement the Act's risk and needs assessment tools and recidivism reduction programs.  Various folks, including members of Congress, have expressed various concerns about this pick, and this new Mother Jones article effectively reviews why.  The article is headlined "Trump Keeps Celebrating Prison Reform. His Administration’s Latest Move Could Sabotage It," and is worth reading in full.  Here are excerpts (with links from the original):

Now lawmakers of both parties who backed the First Step Act are alarmed at the Justice Department’s latest move, and at least two senators made clear their discomfort during a hearing on Wednesday.  “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Dick Durbin (D-Ill.) said of the Hudson Institute during a confirmation hearing for deputy attorney general nominee Jeffrey Rosen.  “This is a think tank that has a point of view…They published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform.’ This is the same agency that’s now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review [committee] system.”

Sen. Mike Lee (R-Utah) meanwhile described the institute as an “opponent of the First Step Act” and asked whether Rosen would choose another group to focus on the risk assessment tool if he were confirmed. (Rosen did not answer that part of the question but said he supported the First Step Act.)  “I don’t see a lot of good faith in implementing this law right now,” Lee said.  “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”

The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy.  For the First Step Act, it has announced six committee members so far who will develop the risk assessment program.  One of the members is its own chief operating officer, John Walters, who served as a drug czar in the Bush administration.  During his confirmation hearing for that position in 2001, some senators said they were concerned about his views on criminal justice: He had written it was a “great urban myth” that the country was imprisoning too many people for drug possession, and he had suggested that the disparity between crack and powder cocaine sentences was merely a “perceived racial injustice,” implying no real racial discrimination was at play.  In 2015, after he joined the Hudson Institute, he wrote that the concept of “mass incarceration” was also a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.”  These views appear to be in direct conflict with changes in the First Step Act, including reforms to ease some mandatory minimum sentences and retroactively reduce sentencing disparities between crack and powder cocaine offenses. (That said, a Hudson Institute spokesperson says Walters has publicly endorsed reforms to crack sentencing since the early 2000s.)

Some of many prior related posts:

April 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Via 5-4 vote, SCOTUS reverses lower court stay of Alabama execution ... but does so too late for Alabama to carry out execution

As reported in this local article from Alabama, headlined "Execution called off for Christopher Price; SCOTUS decision allowing it came too late," five members of the Supreme Court tried again to enable a state to go forward with a scheduled execution, but its decision was later than it needed to be to allow the execution to go forward last night.  Here is the story:

Christopher Price was set to be executed at 6 p.m. Thursday for the 1991 killing of a minister in Fayette County, but the execution was called off about half an hour before Price’s death warrant expired at midnight.  An order from the U.S. Supreme Court that says the execution could go forward was issued shortly before 2 a.m. Friday, but it was too late for the state to carry it out because of the expired death warrant.  The state will now have to set a new execution date.

In a 5-4 decision the U.S. Supreme Court denied Price’s request for a review of his appeal and for the stay of execution.  Justice Stephen Breyer wrote a dissent, joined by three other justices, objecting to the overruling of decisions by a federal judge and the 11th U.S. Circuit Court of Appeals to stay the execution.

The order came after several appeals Thursday, beginning with Price’s attorneys filing an emergency motion for a preliminary injunction to a federal judge in Mobile asking her to halt the execution around 1 p.m.  Just before 4 p.m. Thursday U.S. Southern District Court Judge Kristi DuBose stayed the execution for 60 days.  She wrote the state had until May 10 to submit evidence in contradiction to Price’s contention that the three-drug execution protocol will cause or is likely to cause him severe pain and that execution by the new method — nitrogen hypoxia — will significantly reduce the substantial risk of severe pain.

The AG’s Office appealed to the U.S. 11th Circuit Court of Appeals, which affirmed DuBose’s ruling and kept the stay in place.  The Attorney General’s Office on Thursday night then appealed to the U.S. Supreme Court, saying in part that Price had not met a deadline for signing up for the new execution method.

The U.S. Supreme Court agreed with the Alabama Attorney General’s Office in its order issued Friday morning.  The majority opinion stated that Price essentially waited too late. “In June 2018, death-row inmates in Alabama whose convictions were final before June 1, 2018, had 30 days to elect to be executed via nitrogen hypoxia ... Price, whose conviction became final in 1999, did not do so, even though the record indicates that all death-row inmates were provided a written election form, and 48 other death-row inmates elected nitrogen hypoxia.  He then waited until February 2019 to file this action and submitted additional evidence today, a few hours before his scheduled execution time.”

At 11:34 p.m. — when the nation’s highest court had yet to rule — the state called off the execution. A statement from the ADOC said, “As a practical matter, the time remaining before the expiration of the death warrant does not permit sufficient time to accomplish the execution in accordance with established procedures."

Alabama Attorney General Steve Marshall released a statement after the announcement was made.  “Tonight, in the middle of National Crime Victims’ Rights Week, the family of Pastor Bill Lynn was deprived of justice.  They were, in effect, re-victimized by a killer trying to evade his just punishment. This 11th-hour stay for death row inmate Christopher Price will do nothing to serve the ends of justice.  Indeed, it has inflicted the opposite — injustice, in the form of justice delayed."...

Samantha Banks, an ADOC spokesperson, said Price’s last request was to be married to his fiancée.  He was married Wednesday in the visitation yard at Holman.  Price was visited by his wife, an aunt, and an uncle on Thursday. Wednesday, he made four phone calls to attorneys, one to his wife, and one to an aunt....

Lynn, a minister at Natural Springs Church of Christ, was fatally stabbed with a knife and sword outside his home in the Bazemore community three days before Christmas in 1991. Court records state Lynn was putting together Christmas presents for his grandchildren, when the power went out.  He walked outside to check the power box when he was attacked. Records state Lynn suffered 38 cuts, lacerations, and stab wounds, and one of his arms was almost severed.  He died en route to a local hospital.  His wife, Bessie Lynn, was wounded in the attack but survived her injuries.

Price, of Winfield, was 19 at the time and was arrested in Tennessee several days after the slaying. He was convicted in 1993.

The short order from the Supreme Court and the lengthy dissenting opinion authored by Justice Breyer and joined by three other justices is available at this link.  Because the key line of the Court's order is reprinted above, I will quote here the last paragraph of Justice Breyer's six-page dissent:

Alabama will soon subject Price to a death that he alleges will cause him severe pain and needless suffering.  It can do so not because Price failed to prove the likelihood of severe pain and not because he failed to identify a known and readily implemented alternative, as this Court has recently required inmates to do.  Instead, Alabama can subject him to that death due to a minor oversight (the submission of a “preliminary” version of a final report) and a significant mistake of law by the Court of Appeals (the suggestion that a report marked “preliminary” carries no evidentiary value).  These mistakes could be easily remedied by simply allowing the lower courts to consider the final version of the report.  Yet instead of allowing the lower courts to do just that, the Court steps in and vacates the stays that both courts have exercised their discretion to enter.  To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system.  To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.

April 12, 2019 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Henry Montgomery (of Montgomery v. Louisiana) denied parole yet again at age 72

A few years ago Henry Montgomery won in the Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively.  But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.  Last year, Montgomery was denied parole as detailed in this prior post, and yesterday he was denied parole again as reported in this local article headlined "After 55 years in prison, Baton Rouge man key to Supreme Court ruling again denied freedom." Here are some details: 

Henry Montgomery's victory at the U.S. Supreme Court in 2016 created a way for hundreds of prisoners like him — those convicted of horrific crimes while juveniles — to earn their freedom by demonstrating their rehabilitation since their youth.  Yet on Thursday, Montgomery was again denied his own opportunity at a life beyond bars.

The Louisiana Committee on Parole denied Montgomery his freedom for the second time in 14 months, a decision that will keep the 72-year-old confined at the Louisiana State Penitentiary at Angola, where he has served 55 years.

At age 17, Montgomery killed East Baton Rouge Sheriff's Deputy Charles Hurt in 1963 and was sentenced to life in prison. But three years ago, the case played the central role in a landmark ruling on juvenile sentences, Montgomery v. Louisiana, in which the U.S. Supreme Court ruled youth offenders cannot be sentenced to mandatory life without parole, even in prior cases.

And though one of the parole board members Thursday morning cited the court's decision directly, noting "children who commit even heinous crimes are capable of change" — it was not enough. The board must vote unanimously for parole to be granted, and one member, Brennan Kelsey, voted against Montgomery's parole.

Kelsey said he believes the septuagenarian still needs to take more classes and complete more programming. "It's your responsibility to continue to work," Kelsey told Montgomery through a video call between Baton Rouge and the Angola prison.  But Montgomery's attorney, Keith Nordyke, responded that he's "not sure what programs are left."

"He's been through all of the programs he could take," Nordyke said.  "He's been a force for change and a force for good."  Nordyke told the board that Montgomery was imprisoned before programming was available to those sentenced to life terms, but even then, Montgomery started a boxing club that gave young inmates a positive outlet.  The lawyer said Montgomery was involved in a Methodist church ministry and organized a literacy program for fellow inmates that included helping them write letters home when they could not read or write themselves.  Since programming became available to Montgomery in recent years, he has completed a variety of classes, like anger management and victim awareness.

"We're not quitting, we're not giving up," Nordyke said, calling the decision Thursday disappointing.  He said he's unsure what his legal team will do next, but he worries about waiting two more years to again go before the parole board, which is the typical waiting period after a decision. Montgomery will turn 73 in June.  "I'm not sure, when you're 73, that two years from now is an adequate remedy for something the Supreme Court ordered," Nordyke said....

The board reconsidered Montgomery's case on Thursday because they conceded an error had occurred during his previous hearing, at which he was first denied freedom. At that hearing in February 2018, two of the three parole committee members voted to deny Montgomery parole, primarily citing Montgomery's lack of classes as reasoning for their vote. But Nordyke requested the board reconsider the case through the board's appeal-like process, alleging the voting members misapplied the laws on youthful offenders in their decision. His request was granted.

The three parole board members on Thursday were different from the three who voted on Montgomery's case last year, yet Kelsey echoed a similar request about more classes, a claim Nordyke called unfair.  He said prison officials worked in the last year to find Montgomery additional classes to take after the last hearing, but it was still not enough. "I do feel like the goalposts are moving," Nordyke said. He said there are classes on parenting and substance abuse that Montgomery has not taken, but those courses would not make sense for a 73-year-old man without children who has never struggled with substance abuse....

The warden of the Louisiana State Penitentiary at Angola, Darryl Vannoy, testified to the board that Montgomery has no issues at the prison.  During Montgomery's 55-year incarceration, prison officials said, he has been written up for breaking rules only 23 times, and only twice in the last 17 years.  The last two write-ups, in 2013 and 2014, were for smoking in an unauthorized area and leaving clothes on his locker. "He's worked at the same job for 25 years," Vannoy said. Montgomery works at the prison's silk-screen shop. "He's not a problem for us. Real low-key guy, you don't hear anything out of him."...

Hurt's grandson, Lafourche Parish Sheriff's Capt. J.P. deGravelles, said while Montgomery has apologized to his family, that was the first time he heard Montgomery take responsibility for the crime. However, he and his aunt, Linda Hurt Wood, asked the parole board on Thursday to keep Montgomery behind bars. "I did go to Angola and I do forgive Henry Montgomery," Wood said. "Mr. Montgomery received a life sentence and so did we. … I will never have my father back."

DeGravelles said their family was disappointed to learn Montgomery would get a second chance in front of the parole board, less than two years from the last hearing. Typically, prisoners have to wait two years before requesting another parole consideration, but the timeline was expedited when the board granted Montgomery's reconsideration appeal — a process about which deGravelles said his family was kept in the dark, yet he was glad to see how it ended up. "Nobody comes out ahead on this," deGravelles said. "Mr. Montgomery is where he needs to be, and that's where he needs to stay."

April 12, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"There Is No Good Reason Prisoners Can’t Vote"

The title of this post is the headline of this New York Times commentary authored by Jamelle Bouie.  Here are excerpts:

Americans may see it as common sense that you lose your right to vote when you’re imprisoned, but in many democracies prisoners retain the right to vote.  When that right is revoked, it’s only for particular crimes (in Germany, it’s for “targeting” the “democratic order”), and often there is a good deal of judicial discretion.  Mandatory disenfranchisement is unusual, and permanent disenfranchisement is even rarer....

As it stands, incarcerated people retain a variety of rights, some of which touch on the political rights and responsibilities of citizenship.  Prisoners have freedom of worship. They can protest mistreatment and poor conditions.  They can exercise some free speech rights, like writing for newspapers, magazines and other publications.  To that point, there is a rich literature of work by incarcerated people tackling complex social and political issues.  Voting would be a natural extension of these activities.

An obvious objection is that criminal transgressions render prisoners unfit for participation in democratic society.  But there’s nothing about committing a crime, even a serious one, that renders someone incapable of making a considered political choice.  Losing your liberty doesn’t mean you’ve lost your capacity to reason.  Prisoners are neither more nor less rational than anyone else who is allowed to vote.

If anything, the political system needs the perspectives of prisoners, with their intimate experience of this otherwise opaque part of the state.  Their votes might force lawmakers to take a closer look at what happens in these institutions before they spiral into unaccountable violence and abuse.

There are practical benefits as well.  Racial disparities in criminal enforcement and sentencing means disenfranchisement falls heaviest on black communities.  This is not just a direct blow to prisoners’ electoral power; it also ripples outward, depressing political participation among their friends, families and acquaintances.  On the other end, suffrage in prison may help incarcerated people maintain valuable links to their communities, which might smooth the transition process once they’re released.

“Citizenship is not a right that expires upon misbehavior,” Chief Justice Earl Warren wrote for the majority in Trop v. Dulles, a 1958 case dealing with the rights of a military deserter.  And, he continued, “citizenship is not lost every time a duty of citizenship is shirked.”  Yes, prisoners have committed crimes, and yes, some of those are egregious. But depriving any citizen of the right to vote should be the grave exception, not a routine part of national life.  Universal suffrage means universal suffrage.

April 12, 2019 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

April 11, 2019

After veto-proof vote, New Hampshire appears poised to be first state to repeal death penalty legislatively since 2013

For a number of years not too long ago, a number of state legislatures got in the habit of repealing the (usually dormant) death penalty in their states.  Specifically, legislatures in five states over a span of six years led death penalty repeal efforts that become the law in New Jersey (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), and Maryland (2013).  But thanks in part to a voter referendum rejecting a legislative repeal in Nebraska in 2016, it has been a full six years since a state legislature initiated a successful repeal of a state death penalty system.

But today, as reported in this local article, headlined "Death penalty repeal passes NH Senate with veto-proof majority," it looks like New Hampshire might soon be added to the list of states to repeal the death penalty legislatively during the modern era. Here are the details:

A bill to repeal the death penalty in New Hampshire cleared the state Senate with a veto-proof, 17-6, two-thirds margin Thursday, setting the stage for the end of capital punishment in a state that hasn’t executed anyone since 1939.  The House passed the repeal measure, HB 455, on March 3, also by a veto-proof vote of 279-88....

Gov. Chris Sununu has promised to veto the bill, but the votes in the House and Senate signal he most likely will be powerless to stop the repeal from taking effect unless two senators change their minds for the override vote.

The bill revokes the existing capital punishment statute and replaces it with a penalty of life in prison without the possibility of parole for murder of a police officer or other capital offenses.

New Hampshire currently has one person on death row — Michael Addison — who was sentenced to death for the 2006 killing of Manchester police Officer Michael Briggs. Opponents of death penalty repeal argued that Addison will never be executed if capital punishment is repealed, while supporters of the repeal said the law would not be applied retroactively.

Because I am pretty sure no state in the modern era has yet to execute a previously condemned person even after a "prospective only" repeal of the death penalty, I am also pretty sure that it could soon become very unlikely that Michael Addison will be executed for the 2006 killing of Manchester police officer.

April 11, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Keeping up with (soon to be counselor?) Kim Kardashian West and her important role in sentencing reform

Download (18)Today's must-read article for sentencing fans just happens to come from Vogue magazine under the headline "The Awakening of Kim Kardashian West."  One need to power through some opening paragraphs about the West house and Kim's wardrobe, but the there are lots of interesting passages about the subject and broader stories about her role in getting Prez Trump to grant clemency to Alice Johnson and to be supportive of criminal justice reform more generally.  I found this extended passage especially interesting:

After President Trump met with her, the CNN commentator and activist Van Jones, and several lawyers, he granted Johnson clemency and then invited her to his State of the Union Address in February.  What you probably don’t know is that Kim has been working with Jones and the attorney Jessica Jackson, cofounders of #cut50, a national bipartisan advocacy group on criminal-justice reform, for months, visiting prisons, petitioning governors, and attending meetings at the White House. And last summer, she made the unlikely decision — one she knew would be met with an eye roll for the ages — to begin a four-year law apprenticeship, with the goal of taking the bar in 2022.

“I had to think long and hard about this,” she says, gleefully devouring chile con queso with chips now that her Vogue shoot is over. What inspired her to embark on something so overwhelmingly difficult and time-consuming — even as she also runs a multimillion-dollar beauty enterprise — was the combination of “seeing a really good result” with Alice Marie Johnson and feeling out of her depth.  “The White House called me to advise to help change the system of clemency,” she says, “and I’m sitting in the Roosevelt Room with, like, a judge who had sentenced criminals and a lot of really powerful people and I just sat there, like, Oh, shit. I need to know more. I would say what I had to say, about the human side and why this is so unfair.  But I had attorneys with me who could back that up with all the facts of the case. It’s never one person who gets things done; it’s always a collective of people, and I’ve always known my role, but I just felt like I wanted to be able to fight for people who have paid their dues to society. I just felt like the system could be so different, and I wanted to fight to fix it, and if I knew more, I could do more.”

Jones had been collaborating with Jackson on building bipartisan unity around the need to “shrink the incarceration industry,” and with folks on the other end of the political spectrum, like Newt Gingrich and the American Conservative Union. And it was working. Then, says Jones, Trump “runs and wins on this law-and-order, Blue Lives Matter platform, and he gives an inauguration speech with his American-carnage line, making it seem like he’s going to unleash police and prisons everywhere.”

And then the unexpected happened. “Kim Kardashian,” says Jones, “wound up playing this indispensable role, and a lot of people have gotten furious with me, saying I’m stealing the credit from African American activists who have been working on this issue for decades. And first of all, I’m one of them. But I was in the Oval Office with Kim and Ivanka and Jared and the president, and I watched with my own eyes Trump confess to having tremendous fears of letting somebody out of prison and that person going and doing something terrible, and the impact that that would have on his political prospects. He was visibly nervous about it. And I watched Kim Kardashian unleash the most effective, emotionally intelligent intervention that I’ve ever seen in American politics.”

This may sound like hyperbole, but consider the target. Perhaps an “emotionally intelligent” intervention could have been staged only by a bigger reality star than the man in the Oval Office. “Kim understood that he needs to be seen as taking on the system, and she helped him to see that there are people who the system was against and that his job was to go and help them,” says Jones. “And it was remarkable. So for people who have fallen for this media caricature of the party girl from ten years ago who hangs out with Paris Hilton? This is the daughter of an accomplished attorney and the mother of three black kids who is using her full power to make a difference on a tough issue and is shockingly good at it.”

He brings up the Elle Woods character from Legally Blonde as perhaps the only archetype we have in the culture through which to understand such an unlikely turn of events. “But she’s so much deeper than that,” says Jones, “because the gravity of the issues she’s taking on is so tragic and all-pervasive. I think she’s going to be a singular person in American life.”

A few prior related posts:

April 11, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (3)

April 10, 2019

"Vague Comparisons and Proportional Sentencing"

The title of this post is the title of this new theoretical paper authored by Jacob Bronsther now on SSRN.  Here is its abstract:

The “small improvement problem” (“the Problem”) applies when no option in a comparison is best nor, it seems, are the options equal, because a small improvement to one would fail to make it the better choice.  I argue that vagueness causes the Problem, such that the options are vaguely equal or vaguely “related.” I then unpack an important instance of the Problem, the comparison between a crime and a punishment upon which the ideal of a retributively deserved sentence is based.  I argue that this comparison is not only vague, but remarkably vague, leading to an expansive array of “not undeserved” sentences.  I conclude, however, that retributivism can only justify the least harmful “not undeserved” sentence.

April 10, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Impressive (and growing) accounting of studies on racial disparities in criminal justice system

In this posting at the Washington Post last year, Radley Balko assembled an extraordinary amount of research on crimianl justice administration under the headline "There’s overwhelming evidence that the criminal-justice system is racist. Here’s the proof." He has an update now posted here, headlined "21 more studies showing racial disparities in the criminal justice system," and it starts this way:

Last September, I put up a post listing more than 120 studies demonstrating racial bias in the criminal-justice system. The studies covered nearly every nook and cranny of our carceral system — from police to prosecutors to prisons; from misdemeanor offenses to the death penalty; from sentencing to parole; and from youth offenses to plea bargaining to clemency.  The post also included nine studies I could find that suggested racial bias was not a factor in some part of the criminal-justice system,

I also asked readers to send me any studies I missed, and I promised that I’d keep the list up to date as new studies came along.  So here is our first update.  I’ll both list the new studies here, and add them to the master list.  As before, if you know of something I’ve missed or are aware of a forthcoming study, please let me know via email.

April 10, 2019 in Data on sentencing, Race, Class, and Gender | Permalink | Comments (5)

Spotlighting the important (and problematic) metrics used by prosecutors

This great New York Law Journal commentary, authored by Rachel Barkow, Lucy Lang, Anne Milgram and Courtney Oliva, is headlined "How We Judge Prosecutors Has to Change." Its subheadline highlights its theme: "Despite a wealth of evidence showing public safety can be improved by connecting people to needed social and health services, the internal metrics of prosecutors’ offices do little to incentivize this course of action."  Here is how the piece gets started:

The criminal justice reform movement has rightfully focused on prosecutors as key actors in bringing about much-needed change.  Dozens of reform-minded prosecutors have been elected throughout the country promising to tackle mass incarceration while keeping their communities safe.  They will not succeed unless they redefine what it means to be a “successful prosecutor.”

Today, local prosecutors measure themselves by three core metrics: how many people are indicted on criminal charges, how many cases they try and how many convictions they secure (either through guilty pleas or convictions after trial). For too long, these metrics have been used to decide promotions and raises, and to confer professional capital, dictating who gets the best cases and whose work is celebrated.

Not surprisingly, then, these are the metrics around which prosecutors orient their work and judge their professional self-worth.  This rewards prosecutors who excel at managing large caseloads and processing people through the system. But these metrics do not necessarily recognize the prosecutors who are most effective at achieving public safety and promoting equality.  These goals require additional metrics.  Decisions about what crimes and people to focus on, and whether or not to incarcerate, matter enormously.  The existing metrics take us further away from the goal of building a better criminal justice system.

April 10, 2019 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

April 9, 2019

A few comments on implementing the FIRST STEP Act in written testimony from AG William Barr

Attorney General William Barr testified today before a House Appropriations subcommittee. Unsurprisingly, media and twitter attention is focused on what AG Barr had to say about the Mueller report. But notably, while AG Barr's written statement did not even mention the Mueller report, he says a lot about the Trump administration's budget proposal for the Justice Department and has this paragraph about the FIRST STEP Act:

In December, Congress passed and the President signed the First Step Act of 2018, which seeks to reduce recidivism, refine sentencing laws, and eliminate disproportionate penalties for certain crimes. I intend to robustly fund and diligently implement this bill at the Department. The Act directs the National Institute of Justice (NIJ) to evaluate Second Chance Act programs no later than five years after its enactment. Therefore, the FY 2020 Budget requests $1.5 million for NIJ to support the first phase of this evaluation, which will focus on identifying appropriate outcome measures for Second Chance Act programs.  In addition, related to the First Step Act, the Federal Bureau of Prisons (BOP) is requesting $14 million to incentivize the development of innovative pilot projects in reentry and recidivism-reduction approaches. BOP is also requesting $1 million to expand the availability of medication-assisted treatment for inmates with opioid abuse disorders and to enable more inmates to get treatment.

April 9, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

"Who Belongs in Prison?"

The title of this post is the headline of this first-rate New Yorker article by Adam Gopnik discussing lots of aspects of modern criminal justices systems and a lots of first-rate recent books about these systems. (Emily Bazeon's great new book titled "Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.") I recommend the lengthy piece in full, and the subheadline summarizes just one of its themes: "A truly just system must do more than protect the rights of the innocent; it must also respect the humanity of the guilty." Here is a small excerpt from a long piece:

The heroic rhetoric of class warfare that sometimes inflects these books can mask the truth that the progress in the past decade concerning the crisis of incarceration has in large part been made on classically American reformist terms.  As Bazelon ably reports, the reality of the anti-incarceration movement in this country is that rich philanthropists have been footing much of the bill, prompted simply by evident injustice.  George Soros’s foundations have poured millions into supporting anti-incarceration initiatives, and so, astonishingly, have the Koch brothers — some libertarians really do like to see people at liberty, it seems. 

But what all of these efforts appear to have in common is an attempt to move us out of the crisis of incarceration by moving us past the question of “guilt,” making us see that the categories of guilty and innocent, whether applied to the wrongdoer or to the one done wrong, miss harder social truths, and replace empathy with bureaucratized vengeance. “The crime is what you did, it’s not who you are” is an aphorism of anti-incarceration activists, and this perspective enlivens almost all the reformist literature.

And so the plethora of new books can sometimes seem to sit just outside the hardest issue.  The hardest cases aren’t those of harmless victims of mandatory-minimum laws....  The cases that test our convictions involve offenders whose crimes have had real social and human costs. What do we do about the violent carjacker, the armed robber, the brutal assailant?  Such people exist, of all kinds and colors, and wishing away the problem of impulsive evil by assimilating it to the easier problem of our universal responsibility for social inequities doesn’t help solve it.  It’s often said that white-collar criminals should not be treated better than no-collar ones, and yet the taste for punishing the white-collar miscreant is no less vindictive — indeed, there’s depressing social-science research showing that, once people are made aware of the inequities of the American criminal-justice system, they want even harsher penalties for white-collar offenders.  We should all be in this misery together.

April 9, 2019 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

April 8, 2019

Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal

This press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty," reports on the latest developments in the highest profile college fraud case I can recall. Here are the basics:

Thirteen parents charged in the college admissions scandal will plead guilty to using bribery and other forms of fraud to facilitate their children’s admission to selective colleges and universities. One coach also agreed to plead guilty.

The defendants were arrested last month and charged with conspiring with William “Rick” Singer, 58, of Newport Beach, Calif., and others, to use bribery and other forms of fraud to secure the admission of students to colleges and universities. The conspiracy involved bribing SAT and ACT exam administrators to allow a test taker to secretly take college entrance exams in place of students, or to correct the students’ answers after they had taken the exam, and bribing university athletic coaches and administrators to facilitate the admission of students to elite universities as purported athletic recruits....

All of the defendants who improperly took tax deductions for the bribe payments have agreed to cooperate with the IRS to pay back taxes.

Plea hearings have not yet been scheduled by the Court. Case information, including the status of each defendant, charging documents and plea agreements are available here.

The charge of conspiracy to commit mail fraud and honest services mail fraud provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of conspiracy to commit money laundering provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $500,000 or twice the value of the property involved in the money laundering. The charge of conspiracy to defraud the United States provides for a maximum sentence of five years in prison, three years of supervised release, and a fine of $250,000. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and other statutory factors.

Though the recitation of statutory maximum sentence sounds really serious, clicking through to the plea agreements reveals that the relatively low dollar amounts in these frauds entails relatively low guideline sentencing ranges. Specifically, for Felicity Huffman the government calculates in the plea agreement a guideline range at offense level 9 to result in a sentence range of 4 to 10 months. Notably, Huffman disputes the amount of "loss or gain" in her offense and suggests her guideline sentencing range is only 0 to 6 months.  And, significantly, the government agrees to advocate for only the low end of its calculated range, so it will be seeking only a four month sentence for Huffman.

I have not yet had a chance to look though all the other plea agreements, but I would guess their terms are comparable.  And especially because all these defendants are already suffering (and will continue to suffer) all sorts of non-traditional punishments, I am not really bother at all that they are not looking at severe guideline ranges.  But perhaps others are, and I welcome their comments on whether and how they think justice is being served in these cases now that we are moving into the sentencing phase.

April 8, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (8)

"Department of Justice Announces First Step Act Implementation Progress"

The title of this post is the heading of this notable and lengthy press release from the US Department of Justice this afternoon.  The full release (and its links) are must reads for anyone and everyone following closely the early implementation of the FIRST STEP Act.  I may need a few posts to fully unpack all the particulars, but I will start here with the start of the release and a few choice specifics:

Today, the Department of Justice’s National Institute of Justice (NIJ), in accordance with the First Step Act, has announced the selection of the nonprofit and nonpartisan Hudson Institute to host the Independent Review Committee. The Committee, whose members will be appointed by Hudson Institute in accordance with the Act’s requirements, will assist the Department as it develops and implements risk and needs assessment tools and evidence-based recidivism reduction programs.

“The Department of Justice is committed to implementing the First Step Act,” said Attorney General William Barr. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.  I am grateful to Hudson Institute for hosting this important Committee, which will lead to better policies at the Department and, ultimately, better outcomes for prisoners reentering society.”

NIJ also announced today that it is contracting with outside experts and leading researchers, including Dr. Grant Duwe Ph.D., Dr. Zachary Hamilton Ph.D., and Dr. Angela Hawken Ph.D., for assistance and consultation as the Department develops the Risk and Needs Assessment System under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and a nationally recognized expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems.  Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies. Each of these experts will bring unique expertise as they augment NIJ and the Bureau of Prisons’ (BOP) efforts to implement the Act.

Today’s announcements by NIJ are the latest in a growing list of accomplishments as the Department works diligently to implement the Act, signed into law in December 2018. Some other highlights of the Department’s ongoing implementation efforts include...

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 826 sentence reductions and 643 early releases....

BOP has issued procedures for “compassionate release” sentence reductions under 18 U.S.C. §§ 3582 and 4205(g) (BOP Policy Number 5050.50), and 22 inmates have already received sentence reductions under this program.

BOP has issued procedures providing for participation in the Second Chance Act home confinement pilot program under 34 U.S.C. 65401(g) (BOP Operations Memorandum 001-2019), and 23 inmates are currently participating, with additional inmates currently being screened for program inclusion.

April 8, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Declining Corporate Prosecutions"

The title of this post is the title of this notable new paper authored by Brandon Garrett.  Here is its abstract:

Ten years ago, people across the U.S. protested that “too big to jail” banks were not held accountable after the financial crisis.  Little has changed.  Two years into the Trump Administration, newly collected data allows one to assess what impact a series of new policies have had on corporate enforcement.  To provide a snapshot comparison, in its last 20 months, the Obama Administration levied $14.15 billion in total corporate penalties — with 71 financial institutions and 34 public companies prosecuted.  During the Trump Administration, corporate penalties declined.  During its first 20 months, there were $3.4 billion in total penalties, with 17 financial institutions and 13 public companies prosecuted. These trends build over time — in each year, blockbuster cases come and go, creating swings in fines.  However, consistent with these data, this Article describes changes in written policy, practice, and informal statements from the Department of Justice that have cumulatively softened the federal approach to corporate criminals.

This Article also describes continuity between administrations.  A rise in corporate declinations, for example, represents a continuation of Obama Administration policy.  A decline in use of corporate monitors similarly reflects prior policy.  The steady and low level of individual charging in corporate cases, reflects an ongoing lack of success of efforts to prioritize individual prosecutions, exemplified by the 2015 “Yates Memo.”  That policy, like others, has now been formally relaxed.  This series of DOJ corporate prosecution policy changes have been accompanied by important institutional shifts.  For example, high-level vacancies within the DOJ and other enforcement agencies may compromise ability to coordinate resolution of complex cases. 

This Article concludes by proposing structural changes, such as an independent corporate enforcement functions, to enhance capacity and prevent pendulum shifts in the administration of enforcement.  How we handle corporate crime goes to the root of power imbalance in the economy that produced the financial crisis.  Ten years gone, if we still have not learned the lessons of the last financial crisis, then the next one cannot be far ahead.

April 8, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Notable new (though incomplete) accounts of the state of death penalty politics

A couple of major news outlets had a couple of recent lengthy stories about modern death penalty politics.  Here are headlines, links, a small snippet and a follow-up comments:

From NBC News, "Death penalty repeal sweeping across states as both parties get on board":

Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty, said that while the issue of repealing the death penalty was once a partisan one, that's changing.  It "was virtually unheard of in 2012 for a Republican lawmaker to sponsor repeal," Cox said.  This year, ten states have had Republican-sponsored legislation aimed at doing away with capital punishment, according to her grassroots advocacy group.  That includes Georgia, where the bipartisan House Bill 702 was introduced on March 28 backed by the Ways and Means committee chairman and boasting two other GOP co-sponsors.

From the New York Times, "Democrats Rethink the Death Penalty, and Its Politics":

In 2016, for the first time, the Democratic Party platform called for the abolition of the death penalty.  But Hillary Clinton, the party’s nominee for president, supported capital punishment. President Barack Obama never called for its end, either.  Al Gore was a supporter, and so was Bill Clinton.  Some fear it could still be a losing issue in a general election against President Trump, who has talked about expanding those eligible for execution to include convicted drug dealers and could use the issue to rally his base and portray Democrats as weak on crime.  In a Twitter post about Mr. Newsom’s moratorium, Mr. Trump wrote, “friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!”

Because the story of modern capital politics is so interesting and dynamic, I cannot fault these press stories for failing to cover it fully.  These pieces, in my view, especially miss the important stories surrounding the apparent disinterest that even Republican supporters of the death penalty now have for taking steps to enhance the number and pace of executions.  As regular readers know, here in Ohio, former GOP Gov (and once and perhaps future Prez candidate) John Kasich commuted or delayed a large number of executions and his replacement, Gov. Mike DeWine, recently imposed a de facto moratorium on executions because of lethal injection concerns.  Similarly, a number of deep red states with sizable death rows, states like Mississippi, North Carolina, Oklahoma and South Carolina, have not had an execution in a number of years, and I do not recall any GOP leaders complaining (or campaigning) that this is a major problem.

Indeed, though Prez Trump was quick to criticize California Gov. Newsom's announcement of a formal execution moratorium, Prez Trump himself has seemingly done nothing over two+ years in the Oval Office to end the long-running de facto moratorium on federal executions.  Notably, California had its last execution in 2006, whereas the last federal execution took place way back  in 2003.  There are currently more than 60 people on federal death row, and some of have been there for more than 25 years.  Ultimately, it seems that Prez Trump is really like many GOP leaders these days: he is supportive of the death penalty in theory, but he is not really all that interested in doing the work needed to make the death penalty much more functional. And this political reality arguably accounts for the modern state of capital punishment more than any other factor.

April 8, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

April 7, 2019

Are more re-enfranchised former offenders now registering as Republicans rather than as Democrats?

The question in the title of this post is prompted by this notable New York Sun piece headlined "Trump’s ‘First Step’ Toward 2020."  Here are excerpts:

Could President Trump’s bipartisan criminal justice reform — known as the First Step Act — prove to be a first step in a political revolution?  We ask because of a startling disclosure by one of the President’s shrewdest lieutenants in the campaign for First Step, Jared Kushner.  It turns out, he said, that greater numbers of ex-cons being granted suffrage in Florida are registering as Republicans.

Mr. Kushner, the President’s son-in-law, dropped that surprise almost in passing toward the end of an interview with Laura Ingraham. The interview was mainly about the First Step Act celebrated Monday at the White House. Toward the end of the interview, though, they chatted about the Democratic field. Ms. Ingraham popped one of those classic one-word questions: “Socialism?”

“I don’t think that’s where the country is,” Mr. Kushner said. “One statistic that I found very pleasing is that in Florida they passed a law where former felons can now vote. We’ve had more ex-felons register as Republicans than Democrats, and I think they see the reforms . . .”  Ms. Ingraham cut in: “Whoa, whoa, whoa. You’ve had more ex-felons register as Republicans than Democrats?”

“That’s the data that I’ve seen,” replied Mr. Kushner. “I think that will surprise a lot of people when they see the new coalition that President Trump is building for what the Republican Party has the potential to be.”

No doubt it would be a mistake to make too much of this.  It’s been but months since Florida amended its constitution to restore voting rights to felons.  It will take years for the effects to show up in voter registration and at the polls.  Yet it would be a mistake to make too little of it, as well.  Particularly because we’ve had some — not to put too fine a point on it — close races in the Sunshine State.

Florida’s constitutional amendment, after all, restored, at least de jure, suffrage to something like 1.5 million ex-cons, according to the various press accounts. The Democrats were the party pushing for putting these men and women back on the voting rolls.  That brings Florida in line with most states.  The party seems to have taken for granted that they will reap the advantage.

That could prove to be yet another underestimation of Mr. Trump.  We’re not predicting that, just marking the possibility.  The video of the event at the White House to celebrate the the First Step Act underscores the point. It is, we don’t mind saying, breathtaking and worth watching in full. It illuminates the President’s abilities as an inclusive, bipartisan leader....

It’s not our purpose to suggest that the First Step Act is without issues (it was opposed by a number of the most conservative senators). Our purpose is to mark that while the Democrats are trying to get out of first gear — they’re still focused on the Mueller report — Mr. Trump is setting up his 2020 strategy in a highly premeditated way, one that the Democrats seem determined to underestimate yet again.

I am really drawn to this New York Sun piece for a host of reasons.  First and foremost, I agree with the assertion that, as I noted here, last week's event at the White House to celebrate the the FIRST STEP Act was breathtaking and worth watching in full (via this twitter link).  In addition, though I would like to see first-hand data out of Florida on re-enfranchised registrations, the specifics may matter less than that Jared Kushner believes (and is surely telling his father) that criminal justice reform and re-enfranchisement efforts have real political potential for the Republican party. 

Many years ago, I urged in posts and in Daily Beast commentary that then-Prez-candidate Mitt Romney should embrace "Right on Crime" rhetoric about the need for criminal justice reforms in order to help the Republican party appeal more to younger voters and voter of color.  Jared Kushner clearly seems to tapping into these ideas when talking up a "new coalition that President Trump is building for what the Republican Party has the potential to be."  The event celebrating the FIRST STEP Act suggests a willingness, even an eagerness, for this White House to double down on criminal justice reform because they sense a distinct political opportunity as good politics starts to match up with better policies in this space.  This reality bodes well for future reform efforts no matter who is truly getting the bulk of the benefit from re-enfranchised voters.

Finally, politics aside, there is no good reason in my view to disenfranchise categorically any class of competent voters (and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote").  The long-standing perception that re-enfranchisement efforts would help Democrats a lot more than Republicans has contributed to political divisions over doing what is right and just, namely letting everyone have proper access to the franchise.  I hope development in Florida and elsewhere can undermine the belief that only one party benefits from re-enfranchisement efforts so that both parties can fully support the fundamental commitment to democracy that re-enfranchisement represents. 

A few prior related recent posts:

April 7, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

"Third-Class Citizenship: The Escalating Legal Consequences of Committing a 'Violent' Crime"

The title of this post is the title of this notable new article authored by Michael M. O'Hear now available via SSRN. Here is its abstract:

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.”  These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community.  The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served.  A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.”  While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous — pushing the person into a veritable third-class citizenship.

This article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction.  The article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime.  While the article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society.

April 7, 2019 in Collateral consequences, Offense Characteristics, Reentry and community supervision | Permalink | Comments (0)

Shouldn't every criminal justice institution include leaders with past criminal justice involvement?

XO63XMY22BDO5P3YXLAZM4LLDMIn his landmark book, "Criminal Sentences: Law Without Order," Judge Marvin Frankel famously urged the creation of a "Commission on Sentencing" which would include "lawyers, judges, penologists, and criminologists, ... sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates."  As Judge Frankel goes on to explain, having such persons on a sentencing commission "merely recognizes what took too long to become obvious — that the recipients of penal 'treatment' must have relevant things to say about it."

Judge Frankel's astute comments from nearly half a century ago came to mind (along with the question that is the title of this post) on a lovely Sunday morning when I saw this lovely local article headlined "Freed from prison nine years ago, Brandon Flood is new secretary of Pa.’s pardon board."  Here are excerpts:

This column will probably come as something of a shock to all the people in Harrisburg who only know Brandon Flood — a bow-tied, bespectacled policy wonk with sartorial flair — as the persona that he laughingly calls “Urkel Brandon,” in a homage to one of TV’s most famous nerds.  Flood, now 36, readily admits most folks who know him from nearly a decade as a legislative aide or lobbyist will be shocked to learn of his past that includes boot camp for juvenile offenders, a physical scuffle with Harrisburg’s then-police chief, and finally felony convictions and two lengthy prison stints for dealing crack cocaine and carrying an unlicensed gun.

But starting last week, Flood’s turnaround saga has become a talking point and a mission statement for his new job as secretary of the five-member Pennsylvania Board of Pardons  — anchoring one leg of a broader push in Harrisburg for criminal justice reform, aimed at giving more convicted felons a chance for clemency or to wipe their slate clean with a pardon.  What makes Flood’s appointment even more remarkable is that — to steal a phrase from TV infomercial lore — he’s not just Pennsylvania’s new top pardons administrator, he’s also a client.  Gov. Wolf signed off on Flood’s own board-approved pardon, erasing his past convictions, just a few weeks before Flood stepped in as secretary.

Taking a break last Monday during his first day on the job for a sit-down interview, the soft-spoken Flood said a number of new initiatives — to not only call attention to Pennsylvania’s pardon process but also to make it easier to apply for one — will hopefully show former inmates that the state is more focused on rewarding good post-prison behavior.  “If they see this [a pardon] as a viable option, they will continue to be productive citizens,” Flood said, who plans to use his own story as a powerful example of that. “They will see there’s a light at the end of the tunnel.”

Flood’s hiring was the brainchild of Pennsylvania’s new lieutenant governor, John Fetterman.  Policy-oriented, progressive and looking for areas where he can make a difference in the oft-neglected No. 2 slot, the burly, black-shirted Braddock ex-mayor has honed in on his designated role as chairman of the Board of Pardons.  Fetterman told me that Flood is “a singularly unique person to have in order help remake the process ... which is only the only remedy for anyone in Pennsylvania who wants to move forward with their lives in this way.”

Flood’s arrival helps mark the beginning of one era in Pennsylvania criminal justice and arguably the end of another.  It was exactly 25 years ago that a convicted murderer named Reginald McFadden was granted his freedom by a Board of Pardons led by then-Democratic Lt. Gov. Mark Singel, who was also running for governor that year.  McFadden almost immediately killed two people and raped a third, and the case, with its overtones of the infamous Willie Horton affair, was cited by experts as a reason for Singel’s defeat that fall.  The political fallout dramatically changed Pennsylvania’s pardon math. Critics (including the man Fetterman ousted in a 2018 primary, ex-Lt. Gov. Mike Stack) came to say that the state’s pardon system was “broken” in an era of skyrocketing mass incarceration.  Commutations of life sentences ground to a virtual halt, post-McFadden, while pardons for lesser crimes slowed as long backlogs and a confusing process discouraged applicants....

For Fetterman, who hails his close working relationship with Wolf on criminal justice reform, Flood’s hiring is symbolic of both down-to-earth pardon reforms — a $63 application fee was eliminated last month, and the board is looking to digitize the application process and possibly open satellite offices in Philadelphia and Pittsburgh and eventually elsewhere — and a bold new attitude.  In December, Wolf granted board-recommended clemency to three life-sentenced inmates — after only signing two in his first 47 months in office.  Fetterman, who’s currently on an all-67-county tour to discuss the possibility of legalizing marijuana, also said he wants a task force to look at granting widespread pardons for past pot-related convictions. “These are simple charges that are damning people’s career possibilities,” he said.

I am so very pleased to see these developments in the Keystone State, especially because I think having a robust parole, commutation and pardon system can play a key role in encouraging persons to return to a law-abiding life after a run-in with the law. Moreover, beyond whatever reforms or actions are led by Brandon Flood, his very appointment to this position serves as an important symbol of redemption and potential.

In line with this state development and with the question in the title of this post, it dawns on me that the US Sentencing Commission has likely never had, over its now 35-year history, any commissioners with any personal history with the criminal justice system. (I am not entirely certain of this assertion, as I do not know everything about the past of the 30 persons here listed as former commissioners.)  Judge Frankel's astute staffing suggestions have not been followed in various ways in the federal system — e.g., I cannot recall any business people or artists on the USSC — but I think the absence of a former offender is especially glaring.

With five(!) open spots on the USSC, and with Prez Trump talking up the importance of "successful reentry and reduced unemployment for Americans with past criminal records... starting right away," now would seem to be an especially opportune time for a USSC appointment of someone with a "past criminal record" in the federal system.  Names like Matthew Charles and Shon Hopwood and Alice Johnson and Kevin Ring immediately come (alphabetically) to mind, but I am sure there are many others who could serve admirably in this role as "recipients of penal 'treatment' [with] relevant things to say about it."  

April 7, 2019 in Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)