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June 1, 2019

NYU Center, reviewing historical state clemency grants, spotlights Massachusetts' ugly recent history

As noted in this prior post and as detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has a new project focused on state clemency histories with reports on particular state experiences.  The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and is available at this link.  Now the second report, titled "Willie Horton’s
Shadow: Clemency in Massachusetts," has been released and is available at this link.  Here is how it gets started:

A healthy criminal justice system punishes no more than is necessary and creates opportunities for rehabilitation.  Clemency advances both goals.  This Report of the Center’s State Clemency Project focuses on Massachusetts, where just one sentence has been commuted since 1997.  Without a realistic opportunity for clemency, more than 1,000 individuals serving life-without-parole sentences in Massachusetts — 13 percent of the state’s prison population—are condemned to die behind bars.

June 1, 2019 in Clemency and Pardons, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States"

The title of this post is the title of this notable new paper authored by my Ohio State colleague Amy Cohen. Here is its abstract:

For decades, left proponents of restorative justice have wondered if their preference for “less state” would attract complex bedfellows and political alliances.  But it was only as the crisis of mass incarceration hit American cultural and political consciousness that a wide range of libertarian and conservative political organizations and actors began to promote restorative ideals.  This Article traces changing political, theological, and ideological articulations of restorative justice from the 1970s to now, knit together by a common grammar of relationality.  It argues that today, restorative justice exemplifies a distinctively moral form of neoliberalism, complicating the arguments of scholars who describe rightwing criminal justice reform as exemplifying cost-cutting and efficiency.  This account of restorative justice, in turn, reveals different possibilities and dangers for bipartisan collaborations: moral-relational values may be genuinely shared as they compete to establish highly disparate political, economic, and social visions.

June 1, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Another notable study spotlighting a now ubiquitous technology to help explain the great crime decline

One of many major mysteries in this modern history of US crime and punishment is just why crime rates rose so dramatically in the 1970s and 1980s and then the fell dramatically in the 1990s and 2000s. Lots of folks have lots of data to support lots of ideas, and this recent Atlantic piece by Alexis Madrigil, headlined "The Collapsing Crime Rates of the ’90s Might Have Been Driven by Cellphones," provides perhaps another piece of the story.  Here are excerpts from the piece (with a few links preserved) that provides a nice review of the state of this debate:

It’s practically an American pastime to blame cellphones for all sorts of societal problems, from distracted parents to faltering democracies. But the devices might have also delivered a social silver lining: a de-escalation of the gang turf wars that tore up cities in the 1980s. The intriguing new theory suggests that the arrival of mobile phones made holding territory less important, which reduced intergang conflict and lowered profits from drug sales.

Lena Edlund, a Columbia University economist,  and Cecilia Machado, of the Getulio Vargas Foundation, lay out the data in a new National Bureau of Economic Research working paper. They estimate that the diffusion of phones could explain 19 to 29 percent of the decline in homicides seen from 1990 to 2000.

“The cellphones changed how drugs were dealt,” Edlund told me. In the ’80s, turf-based drug sales generated violence as gangs attacked and defended territory, and also allowed those who controlled the block to keep profits high.  The cellphone broke the link, the paper claims, between turf and selling drugs. “It’s not that people don’t sell or do drugs anymore,” Edlund explained to me, “but the relationship between that and violence is different.”

Edlund and Machado used Federal Communications Commission data on cellular-infrastructure deployment and matched it against the FBI’s (admittedly spotty) database on homicides across the country. They demonstrated a negative relationship that was even stronger for black and Latino populations. The title of their paper suggests that a crucial aspect of understanding declining crime has been hiding in plain sight for years: “It’s the Phone, Stupid: Mobiles and Murder.”

Their theory is the latest entry in a series of attempts to explain the components of the long-term decline in crime that began in the early 1990s. The rise and fall of crime in the late 20th century (and into the 21st) is one of the great mysteries of social science. No one has come up with an explanation that fully—and incontestably—accounts for the falling crime rates. Many have tried, and shown substantial initial results, only to have their findings disputed.

Edlund and Machado are not the first to suggest that phones could have played a role in the decline.  Among others, the criminologists Erin Orrick and Alex Piquero were able to show that property crime fell as cellphone-ownership rates climbed.  The first paper on the cellphone-crime link suggested that phones were an “underappreciated” crime deterrent, as mobile communications allow illegal behavior to be reported more easily and quickly.

But cellphones are far from the only possible explanation.  Any measurement that was going up in the ’90s correlates with the decline of violence.  Thus, there are probably too many theories out there, each with limited explanatory power.   One commonsense argument that’s been made is that certain police tactics (say, stop-and-frisk or the “broken windows” approach) or the explosion of incarceration rates must have been responsible for the decline, but most careful reviews have found little evidence to suggest that they had more than a marginal impact.

The University of New Haven criminologist Maria Tcherni-Buzzeo published a review of the contending theories in 2018 that found no fewer than 24 different explanations for why crime began a multi-decade decline in the early 1990s, through economic times good and bad, in different countries and cities, under draconian policing regimes and more progressive ones.

Every theory has its proponents and detractors.  For example, the economists Steven Levitt and John Donohue proposed (and doubled down on) the idea that legalizing abortion reduced crime rates by cutting down on the number of unwanted pregnancies and children born into situations that make them more likely to fall into criminal life. Tcherni-Buzzeo described the theory as “thoroughly debunked by empirical research” in a 2018 book chapter looking at the theories behind the crime decline. Yet Levitt and Donohue’s most recent research, published as a working paper this month, contends they were even more right all along than they’d thought, and that the “cumulative impact of legalized abortion on crime is roughly 45 percent, accounting for a very substantial portion of the roughly 50–55 percent overall decline from the peak of crime in the early 1990s.”

June 1, 2019 in National and State Crime Data, Technocorrections | Permalink | Comments (1)

May 31, 2019

"Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law"

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

Data-driven decision-making regimes, often branded as “artificial intelligence,” are rapidly proliferating across the US criminal justice system as a means of predicting and managing the risk of crime and addressing accusations of discriminatory practices.  These data regimes have come under increased scrutiny, as critics point out the myriad ways that they can reproduce or even amplify pre-existing biases in the criminal justice system.  This essay examines contemporary debates regarding the use of “artificial intelligence” as a vehicle for criminal justice reform, by closely examining two general approaches to, what has been widely branded as, “algorithmic fairness” in criminal law: 1) the development of formal fairness criteria and accuracy measures that illustrate the trade-offs of different algorithmic interventions and 2) the development of “best practices” and managerialist standards for maintaining a baseline of accuracy, transparency and validity in these systems.

The essay argues that attempts to render AI-branded tools more accurate by addressing narrow notions of “bias,” miss the deeper methodological and epistemological issues regarding the fairness of these tools.  The key question is whether predictive tools reflect and reinforce punitive practices that drive disparate outcomes, and how data regimes interact with the penal ideology to naturalize these practices.  The article concludes by calling for an abolitionist understanding of the role and function of the carceral state, in order to fundamentally reformulate the questions we ask, the way we characterize existing data, and how we identify and fill gaps in existing data regimes of the carceral state.

May 31, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

May 30, 2019

Alabama completes execution of Christopher Price seven weeks after delay based on dispute over execution methods

As reported in this prior post, Alabama was planning to execute Christopher Price seven weeks ago as punishment for his 1991 killing of a minister.  But the execution was called off that day because his death warrant expired before the Supreme Court vacated a lower court stay.  Tonight, as reported in this AP article, the execution was completed.  Here are the basics:

A man convicted of using a sword and knife to kill a country preacher during a 1991 robbery was put to death by lethal injection in Alabama on Thursday, weeks after he was initially scheduled to die. Christopher Lee Price, 46, became the second inmate put to death in Alabama in two weeks. The execution was carried out at Holman prison and he was pronounced dead at 7:31 p.m.

Price, who was nearly put to death in April before an execution warrant expired, sought a stay from the U.S. Supreme Court based on a challenge to the state's method of using three drugs during lethal injections. The nation's high court, by a 5-4 vote, refused to halt the execution Thursday night. The conservative majority did not give a reason for denying the stay.

Price had asked to instead die by nitrogen hypoxia, an execution method Alabama has legally authorized but not developed. His lawyers argued the method, which kills by depleting the body of oxygen, would be less painful than lethal injection.

Price sued the state over Alabama's current practices, and the inmate's attorneys contend the state is rushing to execute him two weeks before the trial date.... In a dissent Thursday, Justice Stephen Breyer wrote that the court should have delayed the execution until the trial could take place.

Justice Breyer's dissent from the denial of an execution stay, which was joined in full by Justice Ginsburg and in part by Justices Sotomayor and Kagan, is available at this link.

May 30, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Sharkfests and Databases: Crowdsourcing Plea Bargains"

The title of this post is the title of this interesting new paper now available on SSRN authored by Kay Levine, Ronald Wright, Nancy King and Marc Miller. Here is its abstract:

The stock image of a plea negotiation in a criminal case depicts two lawyers in frayed business suits, meeting one-on-one in a dim corner of a courtroom lobby.  The defendant is somewhere nearby, ready to receive information about the prosecutor’s offer and to discuss counteroffers with his attorney and perhaps with his family.  The victim or arresting officer may be available by phone, although neither has the power to veto a deal the prosecutor otherwise thinks is reasonable.  In this depiction of plea bargaining, the defense attorney and the defendant form one unit, allied against another unit — comprised of the prosecutor, victim, and police officer — while remaining independent of other defense units in terms of information, interests, and goals.  Each defendant’s case requires and receives individualized attention, and each case is bargained on its own terms.

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations.  In particular, we examine the effects of crowdsourcing tactics in the negotiation setting.  Could the effects of the group negotiation setting be reproduced, institutionalized, and furthered by the creation of a database about plea negotiations and case outcomes?  The individual attorneys who negotiate guilty pleas could likewise benefit from access to data beyond their individual caseloads.  Crowdsourced plea-bargaining data can help attorneys to connect the dots between cases and escape the illusion that they negotiate alone.

May 30, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

With legislative override of Gov veto, New Hampshire formally repeals its death penalty

As reported in this local press piece, "New Hampshire became the 21st state to repeal its death penalty Thursday, after a vote in the Senate to pass legislation over the objections of Gov. Chris Sununu." Here is more:

In a 16-8 vote after unusually brisk debate, senators passed an override measure with the necessary two-thirds of support to override Sununu’s veto, issued earlier this month. In a series of emotional pleas, some senators sided with governor, arguing that the prohibition served as a deterrent for the murder of law enforcement and provided justice that life imprisonment cannot.

But others argued repealing the punishment was a matter of humanity. “This question will be answered but not by political philosophy or alliances but by lifetimes of individual experiences that we all carry with us,” said Sen. Harold French, a Franklin Republican who voted to override Sununu's veto. “Today I will vote to voterride the veto of our governor. Because this vote is about our state and about what kind of state we are all going to be a part of.”

The vote followed an equally narrow vote in the House, which voted this month to override the veto with no votes to spare....

The repeal takes effect immediately, and according to the statute applies only to convictions from May 30, 2019 and onward.

“I have consistently stood with law enforcement, families of crime victims, and advocates for justice in opposing a repeal of the death penalty because it is the right thing to do,” Sununu said in a statement after Thursday’s vote. “I am incredibly disappointed that the Senate chose to override my veto."

As noted in prior posts linked below, supporters of this repeal claims the law would not be applied retroactively to the benefit of the one person on death row in the state, namely Michael Addison who was sentenced to death for the 2006 killing of a Manchester police officer.  But 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, so Michael Addison is surely among those celebrating this capital repeal.

Prior related posts:

May 30, 2019 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Bureau of Justice Statistics releases "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)"

The Bureau of Justice Statistics has this new press release providing highlights of this big new report titled "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)." Here are excerpts from the press release:

State prisoners released after serving time for rape or sexual assault were more than three times as likely as other released prisoners to be re-arrested for rape or sexual assault during the 9 years following their release, the Bureau of Justice Statistics announced today.  Released sex offenders represented 5% of prisoners released in 2005 and 16% of post-release arrests for rape or sexual assault during the 9-year follow-up period.

The BJS study tracked a representative sample of prisoners released in 2005 in the 30 states that were responsible for 77% of all state prisoners released nationwide and examined their arrests through 2014.  An estimated 7.7% of released sex offenders were arrested for rape or sexual assault during the 9-year follow up period, versus 2.3% of other released prisoners.

While rape and sexual assault offenders were more likely than other released prisoners to be arrested for rape or sexual assault, they were less likely than other released prisoners to be arrested for other crimes. About two-thirds (67%) of released sex offenders were arrested at least once for any type of crime during the 9 years following their release, compared to about five-sixths (84%) of other released prisoners.  Almost all prisoners who were re-arrested (96% of released sex offenders and 99% of all released offenders) were arrested for an offense other than a probation or parole violation.

This is BJS’s first recidivism study on sex offenders with a 9-year follow-up period. Fewer than half of released sex offenders were arrested for any crime within the first 3 years of release, while more than two-thirds were arrested within 9 years.  About 3 in 10 released sex offenders were arrested during their first year after release.  About 1 in 5 were arrested during their fifth year after release, and nearly 1 in 6 were arrested during their ninth year....

Overall, half of sex offenders released from prison had a subsequent arrest that led to a conviction.  However, sex offenders were less likely than all released prisoners to have a new arrest resulting in a conviction.  Within 3 years of release, 28% of persons released after serving a sentence for rape or sexual assault had an arrest that led to a conviction, compared to 49% of all released prisoners. At the end of the 9-year follow-up, 50% of sex offenders and 69% of all released prisoners had a new arrest that led to a conviction.

Sex offenders were more likely than other released prisoners to receive longer sentences and to be granted unconditional releases from prison.  The median sentence length for sex offenders was 60 months versus 36 months for all state prisoners released in 30 states in 2005.  About 32% of sex offenders were granted an unconditional release and not placed on parole, probation or some other form of community supervision. About 26% of all released prisoners were granted an unconditional release.

BJS also has created this one-page summary of the report.  In short form, this report details that sex offenders released from state prison in 2005 were less likely to be arrested for any offense than other released prisoners, but they were more likely to be arrested for a sex offense than other released prisoners.  And, as I have said before based other data from this BJS set, recidivism rates for everyone released from state prison in 2005 have been depressingly high.  It is worth emphasizing, though, that these data are focused on prisoners released back in 2005, a time when there was relatively little interest in prison rehabilitation programming or in aiding prisoner reentry.  I am hopeful that recent state reforms on these fronts might be now producing lower recidivism numbers, but only time will tell.

May 30, 2019 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

May 29, 2019

New opportunities to work on criminal justice reform at The Justice Collaborative

Earlier today, I received an email from Chris Geidner highlighting new professional opportunities at The Justice Collaborative.  I figured readers of this blog might be interested in, or know folks who might be interested in, these positions, so I got permission to reprint the heart of the email:

We want more people who care about fixing our criminal legal system to join our team at The Justice Collaborative....

We're looking for communications professionals, journalists, and/or smart strategy folks to apply for these three open positions. These people will play a key role in our work fighting for a criminal justice system that monitors and incarcerates as few people as necessary for as little time as necessary to keep our communities safe.

To get an idea of the focus of our work, check out this blueprint for criminal justice change.

We are very much wanting a diverse group of incredible applicants, so any help you can give circulating this notice to those who might be interested would be appreciated.  [Also, although we have office space in DC, NYC, and Austin, we have people working all over the country, so remote work is the norm for most of us at TJC!]   Apply today and/or encourage your friends and colleagues to do so! 

Work With Us: We are currently seeking applicants for the following open positions:

May 29, 2019 in Who Sentences | Permalink | Comments (0)

"Representative Defendants"

The title of this post is the title of this notable new paper authored by Nirej Sekhon now available via SSRN.  Here is its abstract:

Everyone except the defendant in a criminal proceeding somehow represents "the people."  Prosecutors, judges, and juries are all considered public agents.  Defendants in contrast are thought of as parochial, interested in nothing more than saving their own skins.  This broadly shared understanding of criminal court actors was not historically fated nor is it legally accurate today.  The Constitution tasks criminal defendants with significant public responsibility.  They frequently represent the interests of third parties who have no direct stake in defendants' criminal cases.  Defendants vindicate the participatory rights of excluded jurors, they deter unconstitutional searches and seizures that could harm innocent civilians in the future, and they help ensure the transparent and expeditious functioning of the criminal justice system for the public's benefit.

Neither courts nor commentators recognize these representative actions as part of a coherent account of defendants' role in the legal system.  But representative defendants serve some of the same functions that representative plaintiffs do in the civil setting: overcoming information deficits, low-dollar-value harms, and resource scarcity, all of which make it unlikely that individual harm bearers will seek recourse in court.  Courts, commentators, and the public should be clear-eyed about the role defendants play in our legal system. Doing so would help modulate criminal justice policy and enable defense counsel to more effectively challenge the systematic, third-party harms that criminal justice institutions generate.

May 29, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Oklahoma makes retroactive its 2016 defelonization reform initiative

Still more proof that deep red states can be deeply committed to deep criminal justice reforms comes in this local article from Oklahoma headlined "Governor signs legislation to make State Question 780 retroactive." Here are the encouraging particulars:

Gov. Kevin Stitt on Tuesday signed into law a criminal justice reform measure that will make State Question 780 retroactive.  Voters passed the state question in 2016 to reclassify some drug possession and property crimes as misdemeanors instead of felonies.

The retroactivity legislation, which takes effect Nov. 1, establishes an expedited commutation process for people who are serving felony prison sentences for offenses that are now misdemeanors. It also provides a simplified path to expungement for people with old drug possession and low-level property convictions.

Lawmakers estimated that 500 to 800 people could be released on simple possession charges and up to 60,000 people could have their records expunged under the bill.

The legislation will allow families to be reunited and will contribute to workforce development, said Kris Steele, executive director of Oklahomans for Criminal Justice Reform, a nonpartisan coalition that pushed for the retroactivity measure and other legislative reforms.  "Tens of thousands of Oklahomans will be eligible to apply to have their felony taken off their record, which will open up new and hopefully more fruitful employment opportunities for them," Steele said....

"Making the reforms in State Question 780 retroactive not only upholds the will of the people, the voters of our state, but it also opens up a lot of opportunities for individuals who have that scarlet letter hanging around their neck to have that removed and it affords those individuals the opportunity to move forward in life in a very healthy and positive way," he said.

The law directs the Oklahoma Pardon and Parole board to establish an accelerated, single-stage commutation docket for applicants currently serving time who have been convicted of a crime that has been reclassified from a felony to a misdemeanor.  Typically, applicants seeking commutation must pass through a two-stage review process with the Pardon and Parole Board in order to receive a favorable recommendation to the governor, who has final say about whether to grant a commutation.

May 29, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

May 28, 2019

Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death

It has been a full quarter century since Justice Harry Blackmun famously stated in Callins v. Collins, 510 U.S. 1141 (1994), that he would "no longer tinker with the machinery of death."  But in the last 25 years, a whole lot of states have done a whole lot of tinkering with death machinery, and I have been especially well-positioned to observe Ohio's unique machinations.  And this new local article about the latest Buckeye tinkering, headlined "DeWine, prisons have no documents on Ohio’s new execution protocol," has me yet again amazed at what law, policy and practice looks like in this space.  Here are the details:

The Ohio Department of Rehabilitation and Correction has been working for months on Gov. Mike DeWine’s order to revamp Ohio’s execution protocol. But the department says it hasn’t generated a single email or other written communication related to the work.

The governor’s office suggests the lack of such documentation is intentional.  And that has critics accusing the administration of trying to avoid transparency in an endeavor that in the past has been riddled with problems carrying out the death penalty and obtaining the drugs to perform executions. “The execution process across the United States has been plagued by secrecy and a lack of transparency,” said Robert Dunham of the Death Penalty Information Center, a national group that gathers information about how capital punishment is practiced.

In Ohio, problems go at least as far back as 2014, when Dennis McGuire choked and gasped for about 10 minutes before dying after being administered a new, two-drug protocol. That prompted a three-year moratorium as prison officials came up with a three-drug protocol that still used midazolam — which has been used in botched executions in at least four states — as the first in the procedure.

Since 2017, Ohio has conducted four more executions and abandoned a fifth when prison workers couldn’t inject drugs into a man’s veins.  Then, earlier this year, U.S. Magistrate Judge Michael Merz issued a ruling that likened the Ohio protocol to “waterboarding” and said it “would feel as though fire was being poured” into a prisoner’s veins.

In response, DeWine postponed one execution and then three more as he ordered the corrections department to devise a new lethal injection protocol.  But as corrections officials did, they had to contend with accusations that the state was using subterfuge to obtain earlier execution drugs from manufacturers who were adamantly opposed to their use in carrying out the death penalty.

Seeking to get an idea of what drugs the state is thinking of using and how it plans to get them, The Dispatch filed an open records request in April with the corrections department for all of its internal and external communication regarding DeWine’s order and the development of the new protocol.  Hearing nothing, the paper last week asked about the status of the request.  It received a response the same day. “After investigation and review of our agency records, we have determined that we have no responsive records. Thank you for your patience,” spokeswoman Sara French said in an email.

While it might seem implausible that such a weighty matter as devising a new death-penalty protocol could be undertaken by a state agency without a single email or memo being generated, DeWine spokesman Dan Tierney seemed to say that was by design.  “Gov. DeWine agrees that execution protocol is a very sensitive issue, and that sensitivity may not be appropriate for general email or common written correspondence,” Tierney said in an email.  “The governor speaks with Director (Annette) Chambers-Smith regularly, and he will be receiving a full briefing on this issue soon. ″(The Department of Rehabilitation and Correction) remains focused on researching a new protocol using drugs that the state of Ohio can actually obtain.”...

Monica Nieporte, president and executive director of the Ohio News Media Association, said the state should not try to devise something as important as a new lethal injection protocol in secret. “Since it appears that the work done on this issue has largely been done through verbal conversation and, according to DRC, there is no supporting documentation that is public record, it makes it very difficult for journalists or citizens to determine what progress has been made on this topic,” she said in an email. “Hopefully as their research winds down and they are at the point of making recommendations, they will be providing some detailed explanations, including documentation about how they made their conclusions.”

At the risk of bad taste, I am tempted to joke based on the lack of any protocol paper trail that perhaps Ohio officials think it is important to avoid killing trees while they try to figure out a better way to kill people.

A few (of many) prior recent related posts:

May 28, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Notable comments in notable SCOTUS opinions addressing First Amendment retaliatory arrest claims

The Supreme Court handed down three opinions from argued cases this morning, but still has us still "Waiting for Gundy."  The opinion already getting the most attention is a per curiam ruling in an abortion case from Indiana (that was never argued), but criminal justice fans will be most interested in the ruling in Nieves v. Bartlett, No. 17-1174 (S. Ct. May 28, 2019) (available here) concerning whether First Amendment retaliatory arrest claim is precluded by a showing of probable cause.

The somewhat intricate particulars of the case and the opinions in Nieves will likely be of greatest interest to those who closely follow police practices and/or civil rights claims.  But because the case generated a notable voting line up and an array of notable separate opinions, all criminal justice Court-watchers may find the case worth a read.  In particular, Nieves provides still more evidence that Justice Gorsuch does not seem to be a big fan of the modern criminal justice system, as shown by this passage from near the start of his lengthy separate opinion:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively.  In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.  If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

There are a bunch of other interesting passages and flourishes in some other opinions, but for now I will be content to say that all the sparring in Nieves now has me even more excited (if that was possible) to see what the Court does in the biggest criminal cases I am watching, especially Gundy and Haymond.

May 28, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

May 27, 2019

Is Joe Biden really "one of the most progressive federal lawmakers in terms of criminal justice policy"?

In part because there are so many Democratic candidates, I have not yet been following all too closely the various discussions surrounding various candidates' statements and histories on crime and punishment.  But because Joe Biden has apparently emerged as a front-runner, and because he has quite the track-record on these issues, I cannot resist some (still very early) coverage of Uncle Joe's place in this space.  In particular, I find notable this recent USA Today commentary by Prof James Alan Fox, which is headlined "Joe Biden reduced murders, reformed criminal justice policy and made America safer." A line from the piece prompted the question in the title of this post, and here is the context:

[R]ecent allegations that Biden bears responsibility for the nation’s mass incarceration problem is not only inaccurate, but downright insulting to a man who has distinguished himself as one of the most progressive federal lawmakers in terms of criminal justice policy.

The years leading up to the much-discussed 1994 Crime Bill were challenging, to say the least, with violent crime rates soaring to record levels.  From 1990 through 1993, for example, nearly 100,000 Americans were murdered, two-thirds by guns, more than in any other similar time span, before or after.  Something had to be done, and Biden had the political will and skill to translate good ideas into effective policy.

As early as 1990, Biden, as chair of the Senate Judiciary Committee, recognized and responded to the growing crisis by holding hearings on the nation’s homicide epidemic.  In his introductory remarks, he talked of the 3-Ds — deadly weapons, drugs and demographics.

Biden’s observations were spot on.  The surge in homicide at that time was exclusively among teens and young adults, completely gun-related, and linked to the emerging crack cocaine markets in major cities from New York to Los Angeles.  While the subsequent concern for sentencing disparity between crack and powder cocaine was legitimate, it was crack, not powder, that drove the crime surge some three decades ago.

Biden’s approach was clearly more preventative than punitive.  At the 1990 hearing, for example, he called for investing in drug education for youth and drug treatment for addicts.  In contrast, Sen. Alan Spector, the ranking Republican on the Judiciary Committee, argued instead for tougher prosecution and expanding the death penalty.

While it is true that Biden had a major hand in crafting the Crime Bill, his was not the only one, as passage of the massive piece of legislation required bipartisan support and thus much compromise. Reflecting Biden’s influence, the final version of the Crime Bill included over $7 billion for a basket of prevention programs.  However, once Republicans took control of Congress in the 1994 midterms, it became more like a trash basket of prevention.

The Republican “Contract with America” set a new path, shifting the emphasis from early prevention to harsh punishment.  The Contract promised “an anti-crime package including stronger truth-in-sentencing, ‘good faith’ exclusionary rule exemptions, effective death penalty provisions, and cuts in social spending from this summer’s ‘crime’ bill to fund prison construction and additional law enforcement to keep people secure in their neighborhoods and kids safe in their schools.”  It had become a political liability to advocate prevention.

Whatever share of responsibility that Biden may own for the growth in prison populations over the next decade or more, he should be praised for his central role in pushing legislation that saved thousands of lives.  He was instrumental in helping to get the Brady Law through Congress, after which the nation’s rate of gun homicide started its long-term slide.  He was the chief proponent and author of the Violence Against Women Act, an initiative that helped lower the rate of women murdered by their intimate partners by more than 25% in subsequent years.

The streets of American cities are much safer today than a quarter-century ago before wide-ranging changes in federal crime control policy were enacted. Taken together, Joe Biden deserves credit, not criticism, for all that he has done throughout this career to reduce the number of crime victims and for providing assistance to those unfortunate to become one.

This commentary provides an important reminder that crime rates were so very much higher in the 1980s and 1990s, and thus any look back at crime and punishment policy (and crime and punishment politics) has to be attentive to that reality.  But calling Biden "one of the most progressive federal lawmakers in terms of criminal justice policy" still seems a little rich.

UPDATE: Intriguingly, Prez Trump yesterday afternoon and evening tweeted the following:

I doubt Prez Trump reads this blog, so I am not going to assert that these tweets were a direct response to the question in the title of this post.  But I do think it is an interesting and important indication that Prez Trump is inclined to promote his criminal justice reform record in any battles with Joe Biden.  It also perhaps provides an important opportunity for reform advocates to urge Prez Trump and his Administration to keep moving forward with critical follow-ups to the FIRST STEP Act.

May 27, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (4)

Three years after Michigan sex offender law deemed punitive and unconstitutional for retroactive application, law's application and revision still uncertain

This recent local article, (imperfectly) headlined "Michigan lawmakers ordered to revise the Sex Offender Registry Act," highlights persistent challenges in the implementation of the Sixth Circuit's big 2016 ruling in Does v. Snyder finding constitutionally problematic the retroactive application of Michigan's severe sex offender laws.  Here are the details, with links from the original:

A U.S. district court judge is giving Michigan lawmakers 90 days to change the state's sex offender registry law, almost three years after it was first ruled unconstitutional by federal appeals court.   U.S. District Judge Robert H. Cleland issued an order that the law must be changed on Thursday. 

The ruling stems from an August 2016 decision by the U.S. 6th Circuit Court of Appeals in Cincinnati which found that Michigan's Sex Offender Registry Act was unconstitutional.

Under Michigan's law:

  • Offenders have been prohibited from living, working or even standing within 1,000 feet of a school.
  • They must immediately register email address or vehicles, plus report to the police as often as four times a year.
  • The rules currently apply to all offenders on the registry — even if they've gone decades without committing and crimes. 

The appeals court found the law in violation of constitutional protections against increasing penalties for a crime after its commission and adjudication.  The state appealed to the U.S. Supreme Court, which declined to hear the case — effectively upholding the 6th Circuit ruling. 

But the state has kept the law in place. It argued that the rulings only applied to the specific plaintiffs who brought them — because the appeals court decision came in civil cases instead of class-action lawsuits.  In essence, whether or not offenders needed to completely comply with the act depended on if they'd been able to successfully plead for their individual case in court.

The ACLU, the University of Michigan Clinical Law Program and the Oliver Law Group filed a class-action lawsuit last June that asked that the appeals court to apply the ruling to all Michigan registrants....  In a news release, the ACLU of Michigan said research shows sexual violence and the harm it causes are effectively reduced by prevention programs.  “The Legislature now has both the opportunity and the obligation to use evidence-based research to get this right and provide truly effective tools that enable law enforcement to carry out their work," Shelli Weisberg, ACLU Political Director said in a statement.

Sen. Peter J. Lucido (R-Shelby Township), chairman of the Judiciary and Public Safety Committee told the Free Press discussions with the state police, as well as the ACLU of Michigan have been ongoing, and he sees this as an opportunity to take another look at whether or not SORA is doing the job it was intended to do....

Attorney General Dana Nessel echoed these sentiments in a statement shared with the Free Press Friday afternoon.  “For months now many individuals have been offering input into possible revisions to Michigan’s SORA.  That valuable work is now on a timetable.  In my view, these revisions are long overdue and will bring justice to many who have suffered significant burdens imposed by the obligations and requirements of this bloated registration scheme, which is out of touch with practical ramifications, with the needs of law enforcement, and with a more reasoned understanding of recidivism," Nessel said. 

Clicking through to the federal court order reveals that the district judge has not ordered the Michigan legislature to do anything, but rather the on-going implementation litigation has been put on hold for 90 days because the "parties believe that the Michigan Legislature should be given a further opportunity to revise the statute before this Court addresses the Plaintiffs’ request for injunctive relief on the ex post facto claim, or the parties litigate the other claims."  

Some prior related posts:

May 27, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)