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January 12, 2019

New commentary at The American Conservative makes the case for "Why Conservatives Should Oppose the Death Penalty"

In prior posts here and here and here, I highlighted a series of lengthy articles in The American Conservative that were part of "a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform."   These folks are at it again with this new lengthy essay titled simply "Why Conservatives Should Oppose the Death Penalty."  The extendded essay, authored by Arthur Rizer and Marc Hyden of R Street Institute, merits a full read, and here are some excerpts:

If conservatives want to convince others that a smaller, more nimble government is best, then those values should be reflected in all policy areas, including the death penalty....

Our suspicion of government should not end with the criminal justice system. With respect to capital punishment, the United States has a track record of acting in an arbitrary and biased fashion. Some examples are obvious. For instance, a 19th century North Carolina law mandated the death penalty when a black man raped a white woman, but gave a maximum punishment of one year in prison to a white man for the same crime.

While such blatantly racist laws no longer exist, the disproportionality in death penalty cases has long been an issue. For instance, a Justice Department study established that, between 1930 and 1972, when an individual was sentenced to death for the crime of rape (a crime that no longer carries the death penalty), 89 percent of the defendants put to death were black men. More disturbing was the fact that in every rape execution case, the victim was white. Not one person received a death sentence for raping a black woman, despite black women being up to 12 times more likely to be rape victims.

Furthermore, a murder victim’s race also seems to influence whether or not the accused will be put to death. Indeed, there is a much higher likelihood of this occurring if the victim is white: over 75 percent of victims in cases that resulted in executions were Caucasian. Additionally, only 15 percent were African American even though they represent a far higher percentage of murder victims. This seems to suggest that, at least through the criminal justice lens, some lives are more valuable than others....

Conservatives claim to hold the government and its bureaucrats to high standards. We expect the state to be the flag bearer of moral precepts and criticize it when it fails. Indeed, the Republican platform uses the word “moral” nine times to describe topics ranging from healthcare to the environment. And regardless of a citizen’s source of morality, be it secular or ecclesiastical, the government should reflect those standards.

Despite this expectation, a core belief among conservatives is that the government is too often inefficient and prone to mistakes. Why should the death penalty’s administration by government bureaucrats be any different? We know individuals are wrongfully convicted—and to be sure, some wrongful convictions are unavoidable. However, when dealing with capital punishment, that inevitability could have irreversible consequences and can never be tolerated in a free and law-abiding society.

This is why government should not be in the business of killing its citizens. This view hews to a core conservative tenet, that the government should be inferior to the people from which it derives its power. True, we invest in the state the authority to protect its citizens, which might require lethal protection by police officers in the line of duty. But when it comes to the death penalty, executions aren’t a matter of self-defense or a response to imminent danger. Rather the defendant has already been neutralized as a threat and housed in a correctional facility. In contrast to just wars and police responses, our penal system can and should take all necessary time and devote all appropriate resources to achieve its ultimate end—justice.

Death penalty proponents often claim that executions are beneficial because they serve as a general deterrent to murder. According to this argument, people will hesitate to commit the most heinous crimes for fear of capital punishment, which could mean the firing squad, gas chamber, electric chair, lethal injection, or hanging—which are all legal in some states today. The problem with this theory is that there is very little valid data to support it....

Murder victims’ families deserve better than the system that they must endure, but policymakers are faced with a catch-22. The death penalty process cannot be shorter, less complex, or have its appeals limited without virtually guaranteeing that innocent people will be executed by the state. It seems that if murder victims’ well-being was a primary focus, then prosecutors would more frequently seek a briefer, simpler, surer proceeding like LWOP.

The creation of the Grand Old Party, and in many ways the modern conservative movement, traces its lineage to anti-slavery abolitionists. Their beliefs about human dignity have influenced current conservatives’ views on the sanctity of life. Conservatives should return to the root principles of liberty and dignity to ensure that the criminal justice system is fair, just, and respects life.

Prior related posts:

January 12, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates | Permalink | Comments (0)

January 11, 2019

Supreme Court adds three (little?) criminal cases to its docket

The US Supreme Court this afternoon released this order list in which the Court granted certiorari in eight new cases.  Three of these cases are criminal justice matters, and here are the basics with a big assist from SCOTUSblog:

Quarles v. United States, No. 17-778

Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.

Rehaif v. United States, No. 17-9560

Issue: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

Mitchell v. Wisconsin, No. 18-6210

Issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

Quarles is the only true sentencing case of this bunch, but the other two strike me as much more interesting.  But none of this group seems likely to be a blockbuster ruling.

January 11, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Are there constitutional (and ethical) issues raised by allowing the family of murder victims to hire lawyers to assist prosecutors as "associate attorneys" in capital prosecution?

The question in the title of this post is prompted by this very interesting local article from Kansas headlined "Despite doubts, judge allows private prosecutors in case of two slain deputies."  Here is the story, with one particular line emphasized:

Over the objections of defense lawyers, and despite his own misgivings, a Wyandotte County judge said Wednesday he must allow private attorneys to assist in the prosecution of a man charged with killing two sheriff’s deputies.

Antoine Fielder, 30, is charged with capital murder in the fatal shooting last June of Wyandotte County deputies Theresa King and Patrick Rohrer as they were escorting him back to jail after a court hearing in a robbery case.

Under Kansas law, crime victims can pay for lawyers to assist prosecutors as “associate attorneys,” and the families of Rohrer and King have hired married law partners Tom Bath and Tricia Bath.

Because Fielder faces a possible death sentence, he is being represented by attorneys from the Kansas Death Penalty Defense Unit, who objected to what they termed “interference” in the case.

They argued that the Kansas law that allows the hiring of private attorneys to assist in criminal prosecutions has never been used in a death penalty case. They said it raises “novel constitutional, statutory and ethical issues.”

“Counsel for Mr. Fielder is not aware of any direct authority addressing the constitutionality of private prosecutions in obtaining sentences of death,” the defense said in court documents.

In their written response to the defense objections, the Baths noted that the Kansas Supreme Court has upheld the idea of crime victims hiring private attorneys in numerous cases. And while it has never been used in a capital case, there is nothing in the law that excludes it.

At a court hearing Wednesday, defense attorney Jeff Dazey noted that the law has been on the books in Kansas since the early 20th century, “long before the modern era of the death penalty.”

A spokesman for Wyandotte County District Attorney Mark Dupree said he had met with the Baths before they entered the case and had no objection to their participation.

At Wednesday’s hearing, Tricia Bath said they would be operating under the direction of Dupree’s office. She noted that both she and Tom Bath have represented defendants in death penalty cases and are familiar with the rules and ethical requirements for attorneys in death penalty cases.  “The law is clear,” she argued. “We get to be here and the victims get to have an official representative here.”

District Judge Bill Klapper said that, while he finds the inclusion of private associate prosecutors in the case “inherently problematic,” he is bound by Kansas law that mandates they “shall” be allowed. The judge did order that the Baths will not have any role in the case until after the Feb. 1 preliminary hearing.

The constitutionality of victims have a say and a role in various criminal justice proceedings is well established, and I am generally supportive of victim's being allowed to retain a lawyer to help them preserve and exercise their rights in various ways. But one reason I support victim involvement in criminal prosecution is because, if they have independent rights in the process, they can and should often serve as another kind of check on the power of the state (by, for example, advocating for a sentence lower or just different than what prosecutors seek). But here it seems that the victims' lawyers are not going to be an independent voice and advocate for the victims, but rather will be "operating under the direction" of the District Attorney. That does not seem quite right, and arguably raises some unique constitutional and ethical concerns.

January 11, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (8)

"Wealth-Based Penal Disenfranchisement"

The title of this post is the title of this notable new article now on SSRN authored by Beth Colgan. Here is its abstract:

This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution — may prevent people of limited means from voting.  The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions.  One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline.  The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices.  Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.

After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them.  There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses.  Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice.  This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame — the right to vote — when the proper frame is through the lens of punishment.  This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly.  Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny.  The resulting test operates as a flat prohibition against the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.  Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach.

January 11, 2019 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender | Permalink | Comments (1)

January 10, 2019

"Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018"

Cover-Fair-Chance-Reform-2018The title of this post is the title of this notable new report from the Collateral Consequences Resource Center to document the laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record. Here is the report's executive summary:

* In 2018, 30 states and the District of Columbia produced 56 separate laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and elsewhere.  Many of these new laws enacted more than one type of reform.  This prolific legislative “fair chance” track record, the high point of a six-year trend, reflects the lively on-going national conversation about how best to promote rehabilitation and reintegration of people with a criminal record.

* As in past years, approaches to restoring rights varied widely from state to state, both with respect to the type of relief, as well as the specifics of who is eligible, how relief is delivered, and the effect of relief.  Despite a growing consensus about the need for policy change to alleviate collateral consequences, little empirical research has been done to establish best practices, or what works best to promote reintegration.

* The most promising legislative development recognizes the key role occupational licensing plays in the process of reintegration, and it was this area that showed the greatest uniformity of approach.  Of the 14 states that enacted laws regulating licensing in 2018, nine (added to 4 in 2017) adopted a similar comprehensive framework to improve access to occupational licenses for people with a criminal record, limiting the kinds of records that may be considered, establishing clear criteria for administrative decisions, and making agency procedures more transparent and accountable.

* The most consequential single new law was a Florida ballot initiative to restore the franchise to 1.5 million people with a felony conviction, which captured headlines across the country when it passed with nearly 65% of voters in favor.  Voting rights were also restored for parolees, by statute in Louisiana and by executive order in New York.

* The largest number of new laws — 27 statutes in 19 states — expanded access to sealing or expungement, by extending eligibility to additional categories of offenses and persons, by reducing waiting periods, or by simplifying procedures.  A significant number of states addressed record clearing for non-conviction records (including diversions), for marijuana or other decriminalized offenses, for juveniles, and for human trafficking victims.

* For the first time, the disadvantages of a separate petition-based relief system were incorporated into legislative discussions.  Four states established automated or systemic record-sealing mechanisms aimed at eliminating a “second chance gap” which occurs when a separate civil action must be filed.  Pennsylvania’s “clean slate” law is the most ambitious experiment in automation to date.  Other states sought to incorporate relief directly into the criminal case, avoiding the Pennsylvania law’s technological challenges.

* Three additional states acted to prohibit public employers from inquiring about criminal history during the initial stages of the hiring process, Washington by statute, and Michigan and Kansas by executive order.  Washington extended the prohibition to private employers as well.  A total of 33 states and the District of Columbia now have so-called “ban-the-box” laws, and 11 states extend the ban to private employers.

* Four states expanded eligibility for judicial certificates of relief. Colorado’s “order of collateral relief” is now the most extensive certificate law in the nation, available for almost all crimes as early as sentencing, and effective to bar consideration of conviction in public employment and licensing. Arizona, California, and North Carolina made more modest changes to facilitate access to this judicial “forgiving” relief.

* The District of Columbia established a clemency board to recommend to the President applications for pardon and commutation by D.C. Code offenders. Governors in California and New York used their pardon power to spare dozens of non-citizens from deportation, and California also streamlined its pardon process and made it more transparent.  Moving in the other direction, Nebraska authorized sealing of pardoned convictions, and Maine made both pardon applications and pardon grants confidential.

* The legal landscape at the end of 2018 suggests that states are experimenting with a more nuanced blending of philosophical approaches to dealing with the collateral consequences of arrest and conviction.  These approaches include forgiving people’s past crimes (through pardon or judicial dispensation), forgetting them (through record-sealing or expungement), or forgoing creating a record in the first place (through diversionary dispositions).  While sealing and expungement remain the most popular forms of remedy, there seems to be both popular and institutional resistance to limiting what the public may see respecting the record of serious offenses, and a growing preference for more transparent restoration mechanisms that limit what the public may do with such a record, along with standards to guide administrative decision-making.

January 10, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Attorney General Nominee Bill Barr reportedly to support FIRST STEP Act at coming hearing (and should be pressed on particulars)

This effective new Reuters article, headlined "Tough-on-crime record trails U.S. attorney general nominee into Senate hearings," reports on how the new AG-nominee's record on criminal justice issues and recent developments could intersect at next week's confirmation hearings. Here are the details:

President Donald Trump’s nominee for U.S. attorney general is expected to tell a Senate panel next week that he supports a new law easing prison sentences for some criminals, even though he advocated for decades for just the opposite.

William Barr for much of his career championed a get-tough approach to crime that has recently lost favor, culminating last month in Trump signing into law the biggest overhaul of the criminal justice system in a generation.

The First Step Act, enacted with strong bipartisan support in Congress, reduces mandatory minimum sentences for some nonviolent, low-level offenders and makes it easier for prisoners to qualify for early release to halfway houses or home confinement. Trump signed it into law just weeks after he nominated Barr, who issued a report during an earlier stint as attorney general in the 1990s called “The Case for More Incarceration.”

Barr is expected to say that he will support the new law when he appears before the Senate Judiciary Committee for confirmation hearings next week, according to two sources familiar with his preparations. “We believe that Barr’s position will be somewhat moderated when he testifies if for no other reason than that his boss (Trump) fully subscribes to the First Step approach,” said Fraternal Order of Police executive director Jim Pasco, who said he had been in touch with people helping Barr prepare for the Senate hearings.

The Senate, controlled by Trump’s fellow Republicans, is expected to confirm Barr’s nomination to again head the Justice Department.

Concerns about Barr’s record on criminal justice have so far taken a back seat to questions about how he would handle Special Counsel Robert Mueller’s investigation into possible collusion between Russia and the Trump campaign in the 2016 election. Trump has denied any collusion with Moscow and Russia has said it did not meddle in the election.

Republican Senator Lindsey Graham, the incoming chairman of the Judiciary Committee, said he did not discuss the First Step Act when Barr visited him at his office on Wednesday. “That would have been a good question to ask him,” Graham said after the meeting.

But criminal justice advocates said they were working with lawmakers on the committee to make sure Barr will be questioned in detail about specific elements of the new law to ensure that he will support it. “It certainly appears he holds an old-school view of our criminal justice system, but there is an overwhelming majority of members of the House and Senate on both sides of the aisle who do not feel that way,” said Holly Harris, executive director of Justice Action Network, a coalition of criminal-justice groups across the political spectrum....

Democratic Senator Cory Booker, a member of the Judiciary Committee, is among those concerned by Barr’s record. “Barr took an extremely troubling approach to mass incarceration in the nineties at the DOJ and it doesn’t look like his views have changed much,” said a Booker aide, speaking on condition of anonymity.

As attorney general, Barr would be in a position to influence how prisoners would be released into halfway houses or home confinement. “It’s frustrating to think we might have found one of the few people who are still stuck in the 1980s and 1990s on these issues,” said Kevin Ring, head of Families Against Mandatory Minimums, which has worked to reduce minimum prison terms.

Barr was attorney general in 1991-1993, a time when U.S. crime rates reached an all-time high of 758 incidents per 100,00 people. They have since fallen by nearly half, to a rate of 394 incidents per 100,000 people in 2017, according to the FBI. At that time, Barr advocated long prison sentences to keep violent criminals off the streets. “First, prisons work. Second, we need more of them,” Barr’s Justice Department wrote in a 1992 report.

Barr maintained his get-tough stance after leaving office. Along with other former law enforcement officials, he lobbied against earlier versions of the First Step Act in 2014 and 2015. When Trump fired Attorney General Jeff Sessions in November, Barr and two other former attorneys general penned a Washington Post opinion piece that praised Sessions for directing prosecutors to pursue the severest penalties possible.

Barr’s advocacy came as others were concluding that mandatory minimum sentences and other tough policies had taken too harsh a toll, especially on African-Americans and Latinos, and were costing taxpayers too much money.

I am not at all optimistic that an Attorney General Barr will be much better (or at all better) than former Attorney General Sessions was on these important issues.  But I am hopeful that, with effective questioning by folks on both sides of the aisle during his confirmation hearings, nominee Barr might be inclined to make statements supportive of various key provisions of the FIRST STEP Act that will make it harder for him to undermine these provisions once in office.  I sincerely hope that strong advocates of the FIRST STEP Act and criminal justice reform will be sure to ask a lot of strategic questions of Barr in this arena rather than just give him a chance to repeat whatever Mueller investigation talking points that he is developing.

Prior related posts:

January 10, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

January 9, 2019

"The Accuracy, Equity, and Jurisprudence of Criminal Risk Assessment"

The title of this post is the title of this notable and timely new paper on SSRN authored by Sharad Goel, Ravi Shroff, Jennifer Skeem and Christopher Slobogin.  Here is its abstract:

Jurisdictions across the country, including the federal government through its recently enacted First Step Act, have begun using statistical algorithms (also called “instruments”) to help determine an arrestee’s or an offender’s risk of reoffending.  These risk assessment instruments (RAIs) might be used at a number of points in the criminal process, including at the front-end by judges to impose a sentence after conviction, at the back-end by parole boards to make decisions about prison release, or in between these two points by correctional authorities determining the optimal security and service arrangements for an offender.  At the pretrial stage, RAIs might come into play at the time of the bail or pretrial detention determination by a judge, which usually takes place shortly after arrest.  The increased use of RAIs in the criminal justice system has given rise to several criticisms.  RAIs are said to be no more accurate than clinical assessments, racially biased, lacking in transparency and, because of their quantitative nature, dehumanizing.  This chapter critically examines a number of these concerns. It also highlights how the law has, and should, respond to these issues.

January 9, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Spotlighting problems with immediate application of expanded good time credit in the FIRST STEP Act

This new Reuters article, headlined "Error in U.S. prisons law means well-behaved inmates wait longer for release," reports on what appears to be a significant drafting hiccup in the expansion of good time credits through the FIRST STEP Act. Here are the details:

U.S. prisoners who were expecting earlier release for good behavior, thanks to a new criminal justice law enacted last month, must keep waiting due to an error in the bill, said activists working with the White House to fix the mistake.

Potentially thousands of inmates could be affected by the error in the First Step Act, signed into law on Dec. 21 by Republican President Donald Trump in a rare example of bipartisanship in Washington, with both Democrats and Republicans backing it.

The law required the Justice Department’s Bureau of Prisons (BOP), among other measures, to retroactively recalculate good behavior credits, a step that had been expected to reduce some inmates’ sentences by as many as 54 days per year. Previously, inmates could only earn up to 47 days per year toward early release for good behavior.

Advocates of the law expected the bill’s enactment into law meant that several thousand inmates would get their freedom right away, in time for the 2018 holiday season. But a drafting error in the language of the law has prevented the Justice Department from immediately applying the new method of calculating good-behavior credits, they said.

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement ... or leave prison,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM). “It’s a frustrating mistake,” Ring said.

Wyn Hornbuckle, a Justice Department spokesman, said the department is analyzing changes for the law and plans to “carry out all necessary steps.”

Reuters has seen a letter sent to inmates at the Federal Correctional Institution Coleman, a federal prison in Florida, in which officials acknowledged the new good-behavior credits would not take effect yet. “The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter says. “While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates,” it says....

Activists said the law, as drafted, confused good-behavior credits, which reduce a sentence, with earned-time credits, which do not. Earned-time credits allow certain inmates to qualify for early transfer to halfway houses. The law also mistakenly said that new rules on good-behavior credits could not kick in until BOP finishes a risk-assessment process for deciding which inmates can get earned-time credits.

Whether the error can be promptly fixed was unclear. A federal judge in Chicago on Jan. 3 denied a prisoner’s request to be released earlier for good behavior, citing the letter of the law. “This court is not unsympathetic to the apparent inequity of petitioner’s situation,” wrote U.S. District Judge Sharon Johnson Coleman. “This court, however, is obligated to apply the law as it is written.”

Several activists for prisoners told Reuters their groups are working with the White House on whether the Justice Department can find a work-around or if a legislative fix needs to be tucked into a broader spending bill for action by Congress. Ring said his group is also in talks with lawmakers.

The error comes at a difficult time, with the federal government in a partial shutdown. The Justice Department is one of several agencies partially closed because its funding ran out on Dec. 22 and has not been renewed by Congress.

As I understand this problem, it flows from the fact that the enacted version of the FIRST STEP Act has the expanded good time credits provision tucked within sections of the Act which is said to be effective only when the Attorney General has created "a risk and needs assessment system" that the AG has 210 days to develop.  This placement leads to the view that the expanded good time credits cannot be applied until the risk and needs assessment system gets developed later in 2019.  I am not sure that is the only plausible reading of these provisions of the FIRST STEP Act, but it sounds as though this is the reading now being adopted by the Bureau of Prisons (and maybe some courts).  Such a reading would seem to mean prisoners will not get the benefit of expanded good time credits until at least July 2019.

The expanded good time credits provided by the FIRST STEP Act only amount to an additional week off a sentence for every year served.  So even for those prisoners clearly impacted by this problem, this temporary snafu may only mean a few more week or months in custody before release.  But for prisoners and their families hoping to see freedom a few weeks or months earlier in 2019, this really stinks.

January 9, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Fourth Circuit affirms officer Michael Slager "conviction" (by a judge at sentencing) of murdering Walter Scott

I noted in posts here and here back in December 2017 that, after the high-profile shooting and then state and federal prosecutions of former South Carolina police officer Michael Slager for killing Walter Scott, the real action in his case became a federal sentencing "trial" after Slager pleaded guilty to a federal civil rights offense.  This "trial" was really a judicial inquisition in which a federal sentencing judge took testimony at a sentencing hearing in order to decide whether Slager's crime was "really" second-degree murder or voluntary manslaughter for purposes of calculating the appropriate guideline range.  

Notably, the presentence report in Slager's case suggested a prison term of between 10 and 13 years based on the conclusion that his crime should be viewed as voluntary manslaughter (and his defense attorneys requested an even lower sentence).  But federal prosecutors successfully argued that the district court should, after applying the guidelines for second-degree murder and obstruction of justice, impose a prison sentence for Slager within an enhanced guideline range of roughly 17 to 22 years of imprisonment.  The judge, after a multi-day hearing, "convicted" Slager of second-degree murder and ultimately imposed a 20-year prison term.  Yesterday the Fourth Circuit affirmed the sentence in US v. Slager, No. 18-4036 (4th Cir. Jan 8, 2019) (available here). Here is how that opinion gets started and a passage from the heart of the opinion:

Defendant Michael Slager (“Defendant”), a former officer with the North Charleston Police Department, admitted that he “willfully” shot and killed Walter Scott (“Scott”), when Scott was unarmed and fleeing arrest.  Defendant further admitted that his decision to shoot Scott was “objectively unreasonable.”  Based on those admissions, Defendant pleaded guilty to depriving Scott of his civil rights under color of law.  The district court sentenced Defendant to a 240-month term of imprisonment.  Before this Court, Defendant argues that the district court reversibly erred in setting his sentence by: (1) using second-degree murder as the sentencing cross-reference for his offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for obstruction of justice.  Finding no reversible error, we affirm Defendant’s sentence....

“When sentencing courts engage in fact finding, preponderance of the evidence is the appropriate standard of proof.” United States v. Span, 789 F.3d 320, 334 (4th Cir. 2015) (citations and alterations omitted). We “will not reverse a lower court’s findings of fact simply because we would have decided the case differently.” Id. (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)).  Instead, clear error exists only when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Easley, 532 U.S. at 242)....

Because Santana’s video does not capture the entirety of the disputed period, the court based many of its factual findings on its assessment of the credibility of the two testifying eyewitnesses to the encounter: Defendant and Santana.  Examining at length each of Defendant’s four accounts of the encounter, the court discredited Defendant’s testimony as “contradictory,” “self-serving, evolving, and internally inconsistent.” Slager, 2018 WL 445497, at *4–6.  The record amply supports that credibility determination....

In conclusion, the district court did not reversibly err by inferring Defendant’s malice from the facts it found credible. Moreover, the court did not reversibly err by determining that Defendant’s malice was not negated by “sudden quarrel or heat of passion.” Accordingly, the court properly cross-referenced second-degree murder.

I take no issue with the substantive conclusions of the courts here, but I still always find it jarring when district judges at sentencing are resolving factual disputes and reaching judgments about criminal behavior that have long traditionally been classic jury issues. But, thanks to the remedial opinion in Booker, these matters can still be resolved by judges at sentencing because their findings result in only advisory recommendations rather than sentencing mandates.

Prior related posts:

January 9, 2019 in Advisory Sentencing Guidelines, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Deputy Attorney General Rod Rosenstein reportedly to leave Justice Department after new AG is confirmed

As reported here via Reuters, "Deputy U.S. Attorney General Rod Rosenstein, who has overseen the Russian election meddling probe, is preparing to leave the U.S. Department of Justice in coming weeks as President Donald Trump’s nominee to lead the department is set to take over, a department official said on Wednesday." Here is more:

William Barr, Trump’s pick to replace Sessions who was fired soon after the November midterm congressional elections, is set to appear for a confirmation hearing next week before the Senate Judiciary Committee, which must weigh his nomination before the full Senate considers his approval.

The official, who asked not to be named since no announcement has been made, said there is no specific plan for Rosenstein’s departure and that he plans to leave sometime after Barr’s confirmation.

If confirmed, Barr, who was U.S. Attorney General under the late President George H.W. Bush from 1991 to 1993, would oversee the investigation led by U.S. Special Counsel Robert Mueller, a fellow Republican chosen by Rosenstein. Barr’s nomination is likely to meet heavy scrutiny regarding the ongoing investigation, particularly from Democrats, following reports he had written a memo in June questioning the probe. Rosenstein has said the memo had no impact on the department’s work.

Rosenstein will stay on to ensure smooth transition with Barr, the official said, adding that he has seen his job as deputy as a two-year stint and is not being forced out.

Asked about Rosenstein’s departure, first reported by ABC News, White House spokeswoman Sarah Sanders said she had not spoken to Rosenstein and would leave any announced departures to him or the president. “Certainly, I don’t think there’s any willingness by the president or the White House to push him out,” Sanders told Fox News in an interview.

Rosenstein has stayed on under Acting Attorney General Matt Whitaker, whose controversial appointment has sparked numerous legal challenges and raised questions about what role he would play regarding the investigation.

Rosenstein has been frequently criticized by Trump, who calls the Russia investigation a “witch hunt” and denies any collusion with Moscow. Russia has also denied any election interference.

As this reporting highlights, most media and pundits are likely to discuss the Russia investigation as they assess DAG Rosenstein's coming departure and the likely confirmation of AG-nominee Barr.  But serious criminal justice fans know that a new Attorney General and now a new Deputy Attorney General are critically important players in shaping the Justice Department's work on dynamic federal criminal justice issues ranging from marijuana reform to implementation of the FIRST STEP Act to future work by the US Sentencing Commission and so much more.

January 9, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

January 8, 2019

Florida Supreme Court confirms Sixth Amendment rights still of sentencing consequence

Though decided a few weeks ago, I just recently saw the notable Florida Supreme Court ruling in Brown v. Florida, No. SC18-323 (Fla. Dec. 20, 2018) (available here). Here is how it begins:

We review the Fifth District Court of Appeal’s decision in Brown v. State, 233 So. 3d 1262 (Fla. 5th DCA 2017). In Brown, the Fifth District expressly declared valid section 775.082(10), Florida Statutes (2015), which requires that a qualifying offender whose sentencing scoresheet totals 22 points or fewer be sentenced to a nonstate prison sanction unless the trial court makes written findings that a nonstate prison sanction could present a danger to the public. We have jurisdiction.  See art. V, § 3(b)(3), Fla. Const. As explained below, because subsection (10) requires the court, not the jury, to find the fact of dangerousness to the public that is necessary to increase the statutory maximum nonstate prison sanction, we hold that subsection (10) violates the Sixth Amendment to the United States Constitution and quash the Fifth District’s decision.

And here is a key part of the court's analysis:

We agree with Brown that subsection (10) unambiguously sets the statutory maximum penalty, for Apprendi purposes as defined by Blakely, as “a nonstate prison sanction,” § 775.082(10), Fla. Stat., for her and similarly situated offenders. This is because, absent a factual finding of “dangerousness to the public” — a finding not reflected in the jury’s verdict on the theft charge — the statute plainly states that “the court must sentence the offender to a nonstate prison sanction,” id. (emphasis added), given the crime charged and Brown’s criminal history as reflected on her criminal punishment code scoresheet.  Although it would have been possible for the Legislature to have written this statute as a “mitigation statute,” giving the court discretion to impose up to five years unless the defendant proved non-dangerousness, the Legislature did not do so. We read statutes as they are written.

Accordingly, we hold that subsection (10) violates the Sixth Amendment in light of Apprendi and Blakely based on its plain language requiring the court, not the jury, to find the fact of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction.

January 8, 2019 in Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Spotlighting criminal-justice debt and its profound impact on the poorest Americans

The New York Times magazine has this lengthy new article about criminal justice debt under this full headline: "How Cities Make Money by Fining the Poor: In many parts of America, like Corinth, Miss., judges are locking up defendants who can’t pay — sometimes for months at a time." I recommend the piece in full, and here is a snippet:

No government agency comprehensively tracks the extent of criminal-justice debt owed by poor defendants, but experts estimate that those fines and fees total tens of billions of dollars.  That number is likely to grow in coming years, and significantly: National Public Radio, in a survey conducted with the Brennan Center for Justice and the National Center for State Courts, found that 48 states increased their civil and criminal court fees from 2010 to 2014.  And because wealthy and middle-class Americans can typically afford either the initial fee or the services of an attorney, it will be the poor who shoulder the bulk of the burden....

In areas hit by recession or falling tax revenue, fines and fees help pay the bills.  (The costs of housing and feeding inmates can be subsidized by the state.)  As the Fines and Fees Justice Center, an advocacy organization based in New York, has documented, financial penalties on the poor are now a leading source of revenue for municipalities around the country.  In Alabama, for example, the Southern Poverty Law Center took up the case of a woman who was jailed for missing a court date related to an unpaid utility bill.  In Oregon, courts have issued hefty fines to the parents of truant schoolchildren. Many counties around the country engage in civil forfeiture, the seizure of vehicles and cash from people suspected (but not necessarily proven in court) of having broken the law.  In Louisiana, pretrial diversion laws empower the police to offer traffic offenders a choice: Pay up quickly, and the ticket won’t go on your record; fight the ticket in court, and you’ll face additional fees.

“What we’ve seen in our research is that the mechanisms vary, depending on the region,” says Joanna Weiss, co-director of the Fines and Fees Justice Center.  “But they have one thing in common: They use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least.”  Aside from taxes, she says, “criminal-justice debt is now a de facto way of funding a lot of American cities.”

The jailing of poor defendants who cannot pay fines — a particularly insidious version of this revenue machine — has been ruled unconstitutional since a trio of Supreme Court cases spanning the 1970s and early 1980s....  Still, decades after those cases were decided, the practice of jailing people who cannot pay persists, not least because Supreme Court decisions do not always make their way to local courts.  “Precedent is one thing,” says Alec Karakatsanis, executive director of Civil Rights Corps, a Washington-based nonprofit.  “The way a law is written is one thing. The way a law is actually experienced by poor people and people of color is another.”...

In 2010, the American Civil Liberties Union detailed evidence of what it calls “modern-day ‘debtors’ prisons’ ” — essentially, courts operating in the same way as Judge Ross’s in Corinth — in Georgia, Michigan, Louisiana, Ohio and Washington State.  “If you spent a few weeks driving from coast to coast, you might not find similar policies in place in every single county,” Sam Brooke, the deputy legal director of the Southern Poverty Law Center’s economic-justice program, told me.  “But every other county? Probably.  This is a massive problem, and it’s not confined to the South.  It’s national.”...

In recent years, the Southern Poverty Law Center and other organizations, including the A.C.L.U. and Karakatsanis’s Civil Rights Corps, have been filing class-action lawsuits against dozens of courts across the South and Midwest and West, arguing that local courts, in jailing indigent defendants, are violating the Supreme Court rulings laid down in Williams, Tate and Bearden.  The lawsuits work: As a settlement is negotiated, a judge typically agrees to stop jailing new inmates for unpaid fines or fees.  “No one wants to admit they’ve knowingly acted in this manner,” says Brooke, who partnered with Karakatsanis on lawsuits in Alabama and filed several elsewhere in the South. “So they tend to settle quickly.” The trouble is locating the offending courts.

January 8, 2019 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

US Sentencing Commission releases big new report on "Intra-City Differences in Federal Sentencing Practices"

Cover_intra-city-differencesThe US Sentencing Commission has just released its second big research report of the new year with this 138-page report titled "Intra-City Differences in Federal Sentencing Practices." (The main text of the report is less than 30 pages, with the other 100+ full of detailed appendices.)  This USSC webpage provides links, an overview and conclusions from the report:

Overview

This report examines variations in sentencing practices — and corresponding variations in sentencing outcomes — in the federal courts since the Supreme Court’s 2005 decision in United States v. Booker.  The United States Sentencing Commission analyzed the sentencing practices of federal district judges in 30 major cities located throughout the country to determine the extent of the judges’ variations in imposing sentences in relation to the city average.

This report is the second in a series of reports updating the analyses and findings of the Commission’s 2012 Report on the Continuing Impact of United States v. Booker on Federal Sentencing.

Conclusions

Although the trend of increasing differences among judges slowed after 2011, the increasing differences in sentencing practices first reported at the district level in the Commission’s 2012 Booker Report generally persist to this day, even within the same courthouse. In particular, the Commission finds that:

  • From the Booker to Gall Periods, 23 of the 30 cities had increases in their total spreads, and 22 of 27 cities (those with at least five judges in all three periods) had increases in their standard deviations.  From the Gall to the Post-Report Periods, 20 of the 30 cities had increases in their total spreads, and 16 of the 27 cities (those with at least five judges in all periods) had increases in their standard deviations, although the magnitude of the increases was less than the magnitude of the increases from the Booker Period to the Gall Period.

  • In terms of the overall changes during the 13 years, from the Booker Period to the Post-Report Period, 25 of the 30 cities saw a net increase in their total spreads and 23 cities of the 27 with reported standard deviations saw a net increase in their standard deviations.

  • Considering all 30 cities together as a representative sample of the country as a whole, the average total spreads for all 30 cities in the three periods increased from 18.2 in the Booker Period to 23.7 in the Gall Period to 27.6 in the Post-Report Period.  The average standard deviations for the 27 cities (those with at least five judges) grew from 5.8 to 7.7 to 8.3 during the same three periods.

  • In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.

Once I have a chance to review this data a bit more, I may have more to say about its findings and other takeaways.  But it seems already worth noting that any justified concerns about data showing that "the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case" are at least a bit mitigated by the passage of the FIRST STEP Act.  Those defendants unfairly receiving longer sentences because their cases were assigned to distinctly harsh sentencing judges are now generally going to be able to earn a greater portion of time off their long sentences (and have more opportunities to seek earlier release through other means) thanks to various new provisions of the the FIRST STEP Act.

January 8, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (1)

January 7, 2019

Calling her life sentence "too harsh," Tennessee Gov grants commutation to Cyntoia Brown to be paroled after serving 15 years for juve killing

As reported in this local article, "Gov. Bill Haslam ordered an early release for Cyntoia Brown, a Tennessee woman and alleged sex trafficking victim serving a life sentence in prison for killing a man when she was 16."  Here is more about a high-profile clemency grant in a high-profile case:

Haslam granted Brown a full commutation to parole on Monday. Brown will be eligible for release Aug. 7, 15 years after she fatally shot a man in the back of the head while he was lying in bed beside her. She will stay on parole for 10 years.

“Cyntoia Brown committed, by her own admission, a horrific crime at the age of 16," Haslam said in a statement. "Yet, imposing a life sentence on a juvenile that would require her to serve at least 51 years before even being eligible for parole consideration is too harsh, especially in light of the extraordinary steps Ms. Brown has taken to rebuild her life. "Transformation should be accompanied by hope. So, I am commuting Ms. Brown’s sentence, subject to certain conditions.”

Brown will be required to participate in regular counseling sessions and to perform at least 50 hours of community service, including working with at-risk youth. She also will be required to get a job.

In a statement released by her lawyers, Brown thanked Haslam "for your act of mercy in giving me a second chance. I will do everything I can to justify your faith in me." "With God's help, I am committed to live the rest of my life helping others, especially young people. My hope is to help other young girls avoid ending up where I have been."

The governor's long-awaited decision, handed down during his last days in office, brought a dramatic conclusion to Brown's plea for mercy, which burst onto the national stage as celebrities and criminal justice reform advocates discovered her case. In his commutation, the governor called Brown's case one that "appears to me to be a proper one for the exercise of executive clemency." "Over her more than fourteen years of incarceration, Ms. Brown has demonstrated extraordinary growth and rehabilitation," the commutation said.

It was a remarkable victory for Brown after years of legal setbacks. Brown said she was forced into prostitution and was scared for her life when she shot 43-year-old Johnny Allen in the back of the head while they were in bed together. Allen, a local real estate agent, had picked her up at an East Nashville Sonic restaurant and taken her to his home.

Brown, now 30, was tried as an adult and convicted of first-degree murder in 2006. She was given a life sentence. Had Haslam declined to intervene, Brown would not have been eligible for parole until she was 69. The state parole board, which considered Brown's case in 2018, gave the governor a split recommendation, with some recommending early release and some recommending she stay in prison....

In recent years, celebrities have highlighted her case, fueling intense interest and a renewed legal fight to get her out of prison. Activists, lawmakers and celebrities, including Rihanna and Kim Kardashian West, have cited Brown's case as an illustration of a broken justice system. Brown was a victim herself, they said, and didn't deserve her punishment.

The Gov's official press release on this decision is available at this link.

January 7, 2019 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments

I noted in this post the array of per curiam rulings and statements that the Supreme Court released today to get 2019 off to an interesting criminal justice start.  Regular readers will not be surprised to learn that one particular decision, namely the decision to deny certiorari in Hester v. US, has me revved up.  Hester involves a claim that the Sixth Amendment jury trial right recognized in Apprendi, Blakely, Booker and Southern Union is applicable to cases in which findings are essential for the imposition of criminal restitution.  Dissenting from the denial of cert in a this lovely little opinion, Justice Gorsuch explains why this is only logical and is consistent with an originalist approach to the Constitution:

[T]he government argues that the Sixth Amendment doesn’t apply to restitution orders because the amount of restitution is dictated only by the extent of the victim’s loss and thus has no “statutory maximum.”  But the government’s argument misunderstands the teaching of our cases.  We’ve used the term “statutory maximum” to refer to the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted.  Blakely v. Washington, 542 U.S. 296, 303 (2004).  In that sense, the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss.  And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.

The government is not without a backup argument, but it appears to bear problems of its own.  The government suggests that the Sixth Amendment doesn’t apply to restitution orders because restitution isn’t a criminal penalty, only a civil remedy that “compensates victims for [their] economic losses.”  Brief in Opposition 8 (internal quotation marks omitted).  But the Sixth Amendment’s jury trial right expressly applies “[i]n all criminal prosecutions,” and the government concedes that “restitution is imposed as part of a defendant’s criminal conviction.”  Ibid.  Federal statutes, too, describe restitution as a “penalty” imposed on the defendant as part of his criminal sentence, as do our cases.  18 U.S.C. §§ 3663(a)(1)(A), 3663A(a)(1), 3572(d)(1); see Paroline v. United States, 572 U.S. 434, 456 (2014); Pasquantino v. United States, 544 U.S. 349, 365 (2005).  Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to a jury trial in civil cases.

If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning.  The Sixth Amendment was understood as preserving the “‘historical role of the jury at common law.’” Southern Union, 567 U. S., at 353.  And as long ago as the time of Henry VIII, an English statute entitling victims to the restitution of stolen goods allowed courts to order the return only of those goods mentioned in the indictment and found stolen by a jury.  1 J. Chitty, Criminal Law 817–820 (2d ed. 1816); 1 M. Hale, Pleas of the Crown 545 (1736).  In America, too, courts held that in prosecutions for larceny, the jury usually had to find the value of the stolen property before restitution to the victim could be ordered.  See, e.g., Schoonover v. State, 17 Ohio St. 294 (1867); Jones v. State, 13 Ala. 153 (1848); State v. Somerville, 21 Me. 20 (1842); Commonwealth v. Smith, 1 Mass. 245 (1804).  See also Barta, Guarding the Rights of the Accused and Accuser: The Jury’s Role in Awarding Criminal Restitution Under the Sixth Amendment, 51 Am. Crim. L. Rev. 463, 472–476 (2014).  And it’s hard to see why the right to a jury trial should mean less to the people today than it did to those at the time of the Sixth and Seventh Amendments’ adoption.

Students of the Apprendi-Blakely line of cases have long known that there were not very good arguments to preclude the application of jury trial rights to criminal restitution awards, and those arguments got even weaker when the Supreme Court ruled in Southern Union that the jury trial right also applied to findings needed to impose criminal fines.  And notably, Southern Union was a 6-3 ruling with only the traditional Apprendi haters, Justices Alito, Breyer and Kennedy, in dissent.

So why does the jury trial still mean less to the people today facing restitution punishments than it did to those at the time of the Sixth and Seventh Amendments’ adoption?  The only answer I can provide is hinted in the title of post.  Supposed SCOTUS originalists like Chief Justice Roberts and Justices Thomas and Kavanaugh apparently do not want to here follow originalist principles to what would appear to be their logical conclusion.  Supposed SCOTUS liberals like Justices Ginsburg and Kagan do not want to here protect a certain type of right of a certain type of criminal defendant. (Justice Sotomayor, who never shrinks from following constitutional rights wherever she thinks they must extend, joined Justice Gorsuch's dissent here). 

When push comes to shove — or rather, when criminal defendants make a serious claim that a serious constitutional right should be given serious meaning — still too many justices seem to become faint-hearted in the application of their purported principles and commitments.  Drat. 

January 7, 2019 in Blakely in the Supreme Court, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Supreme Court order list full of (state-friendly) criminal justice per curiams and notable cert denial with statements

The Supreme Court is full back in action for the New Year, beginning with this new long order list with the always-expected long list of denials of certiorari and denials of rehearing. But the list also includes these two notable per curiam rulings:

City of Escondido v. Emmons, No. 17-1660, which summarily reverses/vacates a Ninth Circuit ruling that two officers were not entitled to qualified immunity in a excessive force case.

Shoop v. Hill, No. 18-56, which summarily vacates a Sixth Circuit ruling that an Ohio capital defendant was entitled to habeas relief because the state courts misapplied precedents concerning an Eighth Amendment intellectual disability claim.

In addition, the SCOTUS order list includes these two cert denials that prompted notable statements from the Justices:

Hester v. US, No. 17-9082, concerned whether the Sixth Amendment requires jury findings in support of restitution orders and Justice Alito issued a concurrence in the cert denial, largely in response to Justice Gorsuch's extended dissent which was joined by Justice Sotomayor.

Lance v. Sellers, No. 17-1382, concerned a Georgia capital defendant's claim that his lawyer was constitutionally ineffective and Justice Sotomayor issued a lengthy dissent from the cert denial which was joined by Justices Ginsburg and Kagan.

In a separate post, I may have more to say about some of these rulings, particularly Justice Gorsuch's dissenting opinion in Hester.

UPDATE:  I now do have a new post on the Hester case here under the title "Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments."  And Amy Howe here at SCOTUSblog has a review of all the action today in the first big SCOTUS order list for 2019.

January 7, 2019 in Death Penalty Reforms, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

January 6, 2019

Two helpful reviews of the FIRST STEP Act and what it does (and does not do)

I have seen two recent reviews of the politics, policy, practicalities and potential of the FIRST STEP Act.  Here are links to the two helpful pieces, with a small excerpt from each:

From the Brennan Center, "How the FIRST STEP Act Became Law — and What Happens Next"

The FIRST STEP Act changes the conversation on mass incarceration

The FIRST STEP Act is a critical win in the fight to reduce mass incarceration. While the bill is hardly a panacea, it’s the largest step the federal government has taken to reduce the number of people in federal custody. (The federal government remains the nation’s leading incarcerator, and more people are under the custody of the federal Bureau of Prisons than any single state system.)

The FIRST STEP Act’s overwhelming passage demonstrates that the bipartisan movement to reduce mass incarceration remains strong. And the bill, which retains major parts of SRCA’s sentencing reform provisions, is now known as “Trump’s criminal justice bill.” This means that conservatives seeking to curry favor with the president can openly follow his example or push for even bolder reforms. Finally, this dynamic creates a unique opening for Democrats vying for the White House in 2020 to offer even better solutions to end mass incarceration.

From FAMM, "Frequently Asked Questions on the First Step Act, S. 756"

Q20: What does the First Step Act do to improve compassionate release?

A: The First Step Act makes a number of important reforms to how the BOP handles compassionate release requests.  The Act requires increased notification to prisoners on the availability of compassionate release and their eligibility for it.  It will also require the BOP to expedite the application review process for terminally ill prisoners and make sure that families are notified of a person’s terminal illness and given a chance to visit that person quickly.

Most significantly, the First Step Act gives federal prisoners the ability to petition directly to the sentencing court for compassionate release in the event that the BOP has waited more than 30 days to respond to a petition or the federal prisoner has been denied compassionate release after exhausting all administrative remedies at the BOP.

January 6, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Some New Year highlights from Marijuana Law, Policy & Reform

It has only been a few weeks since I did a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, but a recent post round-up is timely given the interesting discussions that the end if 2018 and start of 2019 have engendered. So:

January 6, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)