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January 19, 2019

"Positive Sanctions versus Imprisonment"

The title of this post is the title of this notable new article authored by Murat Mungan.  Here is its abstract:

This article considers the possibility of simultaneously reducing crime, prison sentences, and the tax burden of financing the criminal justice system by introducing positive sanctions, which are benefits conferred to individuals who refrain from committing crime.  Specifically, it proposes a procedure wherein a part of the imprisonment budget is re-directed towards financing positive sanctions. 

The feasibility of reducing crime, sentences, and taxes through such reallocations depends on how effectively the marginal imprisonment sentence reduces crime, the crime rate, the effectiveness of positive sanctions, and how accurately the government can direct positive sanctions towards individuals who are most responsive to such policies.  The article then highlights an advantage of positive sanctions over imprisonment in deterring criminal behavior: positive sanctions operate by transferring or creating wealth, whereas imprisonment operates by destroying wealth.  Thus, the conditions under which positive sanctions are optimal are broader than those under which they can be used to jointly reduce crime, sentences, and taxes.

The analysis reveals that when the budget for the criminal justice system is exogenously given, it is optimal to use positive sanctions when the imprisonment elasticity of deterrence is small, which is a condition that is consistent with the empirical literature.  When the budget for the criminal justice system is endogenously determined, it is optimal to use positive sanctions as long as the marginal cost of public funds is not high.

January 19, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Former Chicago cop Jason Van Dyke sentenced in state court to only 81 months for murder of Laquan McDonald

As reported in this lengthy local article, headlined "Jason Van Dyke given relatively lenient sentence of under 7 years in prison for Laquan McDonald shooting," a high-profile killer seems to get a relative low sentence in an Illinois courtroom yesterday. Here are some of the details:

Former Chicago police Officer Jason Van Dyke was sentenced Friday to nearly seven years in prison for the fatal on-duty shooting of Laquan McDonald, bringing to a close one of the most racially fraught and socially significant chapters in recent Chicago history.  Van Dyke remained stoic as Cook County Circuit Judge Vincent Gaughan announced the sentence about 5:30 p.m. after a long day of often emotional testimony. Moments later, Van Dyke’s teenage daughter seated in the gallery burst into tears.

But the relatively lenient six-year, nine-month sentence for second-degree murder counts as a victory for Van Dyke, who could be out of custody in as little as three years, his attorney told reporters.  “He truly felt great,” the attorney, Daniel Herbert, said of Van Dyke. “He was not just relieved, he was happy. It’s the first time I’ve seen the guy — honestly since this whole ordeal started — where he was happy. He’s certainly not happy about going to jail. He’s certainly not happy about missing his family. But he’s happy about the prospect of life ahead of him.”

In October, Van Dyke became the first Chicago police officer in half a century to be convicted of murder in an on-duty shooting.  A jury found him guilty on one count of second-degree murder and 16 counts of aggravated battery — one for each bullet that hit McDonald’s body in October 2014 as the teen walked away from police on Pulaski Road while holding a knife. Graphic police dashboard camera footage of the shooting released more than a year later sparked weeks of chaos and political upheaval, exposing Chicago’s long-standing racial fault lines and exacerbating the already-fraught relationship between police and minority communities.

Though he had sought a sentence about three times lengthier, special prosecutor Joseph McMahon told reporters in the Leighton Criminal Court Building that justice had been served. “I understand the sentence is not exactly what the McDonald and Hunter families wanted,” said McMahon, who requested a prison term of 18 to 20 years.  “But the sentence, like the verdict, does hold the defendant accountable.”...

Gaughan imposed the sentence after a daylong hearing that drew tears from witnesses on the stand and from Van Dyke himself, who sat slouched at the defense table in a bright yellow jail uniform.

While predicting his sentence would disappoint “100 percent” of those in the courtroom, Gaughan made a number of key rulings in favor of the defense. In particular, he sentenced Van Dyke only for the second-degree murder conviction, meaning he will serve just half the sentence if he qualifies for day-for-day good-behavior credit. If instead the judge had sentenced him only on the aggravated battery convictions, Van Dyke could have been subject to a lengthier term behind bars. He also would have had to serve at least 85 percent of that sentence.

In fashioning his decision, Gaughan said the law required him to consider the most serious charge for which Van Dyke was convicted. Common sense, the judge found, dictated that be second-degree murder, not aggravated battery. However, Illinois law considers aggravated battery with a gun the more serious offense of the two, carrying stiffer penalties. “Is it more serious for Laquan McDonald to be shot by a firearm or is it more serious for Laquan McDonald to be murdered by a firearm?” Gaughan said in explaining his reasoning.

Witnesses called by Van Dyke’s legal team at the marathon hearing said the public attention to the case has emotionally shattered his family. “My life has been a nightmare,” Van Dyke’s wife, Tiffany, said in a choked voice, echoing similar testimony from the former officer’s father, sister and 17-year-old daughter. “Life is torture. My heart is broken.”...

Toward the end of the hearing, Van Dyke himself stood and said the day he shot McDonald was the worst of his life. It was the first time he had ever had to fire his weapon in the line of duty, he said, bending his head down to read closely from a handwritten statement. “And I’m very proud of that fact,” he said. “… The last thing I wanted to do was to shoot Laquan McDonald.” Van Dyke said he “tried to make the right decision in a rapidly escalating, dangerous situation.”...

McDonald’s great-uncle, the Rev. Marvin Hunter, read from the witness stand a letter he wrote from the perspective of his grand-nephew, saying McDonald’s death devastated the family. The letter said Hunter used McDonald’s last paycheck from his construction job to buy the suit the teen was buried in.

The killing came just weeks before McDonald was to begin living under the same roof again with his sister and mother, who had overcome drug addiction, he said. “I was so happy for the possibility of that day,” the letter said. “However, Jason Van Dyke … robbed us of this.”

The letter ended with a request to punish Van Dyke for McDonald’s killing, arguing that the former officer had shown no remorse for his actions that night. “What happened to me can never be changed, but other young black men and women will not have to face Jason Van Dyke and his evil and selfish ways,” the letter said. “I’m a real victim of murder and that can never be changed. Please think about me and my life when you sentence this person to prison.”

While the many civilian complaints against Van Dyke were not introduced at trial, prosecutors on Friday called four witnesses — all African-American men — who one after another painted Van Dyke as an abusive, out-of-control officer protected by inept police oversight agencies. One man said Van Dyke choked him to try to get him to spit out a cough drop during a DUI stop. Another said the officer berated him using a racial slur.  A third said Van Dyke deserved prison time simply for the “chaotic” way he handled a traffic stop.

There are so many substantive and procedural elements to this case, one could probably write an entire law review article about the importance and impact of prosecutorial and judicial discretion as it operates within a controversial high-profile case like this one.  For now, I am just inclined to spotlight notable sentencing differences between this case and the arguably comparable case involving former South Carolina police officer Michael Slager who killed Walter Scott on camera.  Van Dyke was convicted by a jury in state court of second-degree murder, and then he was sentenced by a local judge to a prison term of 81 months (with it seems the possibility of released in around 40 months).  Slager, whose sentence was just affirmed on appeal, pleaded guilty to federal civil rights charges after a state jury could not reach a verdict, and then he was sentenced by a federal judge to a prison term of 240 months (with perhaps the possibility of being released in around 200 months).

Notably, I am not the only one noticing how state and federal sentencing justice can play out quite differently.  This notable new local article, headlined "Patti Blagojevich ‘speechless’ Van Dyke sentence is less than half her husband’s," begins this way:

As expected, a slew of political candidates rushed to react to the sentencing of Jason Van Dyke. And then there was Patti Blagojevich, wife of a now-disgraced and imprisoned Illinois governor.

“I am speechless,” Patti Blagojevich tweeted Friday. “A 17 year old is dead and the sentence is less than half of my husbands sentence for discussions with his staff and attorney about political fundraising.”

It could be another attempt to grab the attention of the last person who apparently can get former Gov. Rod Blagojevich out of jail early: President Donald Trump. And it comes after Patti Blagojevich last year made some other moves seemingly tailor-made to catch Trump’s eye, with an appearance on Fox News in which she slammed Obama. She also has tried to connect her husband’s case to Special Counsel Robert Mueller and Former FBI Director James Comey — favorite Trump targets.

Van Dyke’s 81-month sentence means the former Chicago police officer will likely serve a little more than three years in prison after shooting the 17-year-old McDonald 16 times in 2014.

Trump himself may have gotten Patti Blagojevich’s hopes up in December, when he tweeted about another TV interview she had done with Fox News, calling her “the wonderful wife” of the imprisoned governor. Patti retweeted the president, and that was the last tweet she had sent until Friday, more than a month later.

Rod Blagojevich, serving a 14-year sentence on corruption charges, is not due out of prison until May 2024. Though an appellate court tossed five of his convictions in 2015, federal prosecutors say he remains convicted “of the same three charged shakedowns” for which he was first sentenced in 2011.

January 19, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

January 18, 2019

US Sentencing Commission releases two new documents on FIRST STEP Act

Via email, I was alerted by the US Sentencing Commission to its release of two notable new documents concerning the FIRST STEP Act.  Here is the notice I received and links:

The FIRST STEP Act of 2018 was signed into law on Dec. 21, 2018.  Today the United States Sentencing Commission published two important documents describing the implementation and impact of the new law:·       

Both documents are interesting, and here is how the FAQ gets started:

Question 1

Is the Commission making any changes to the Guidelines in response to the Act?

The Act does not contain any directives to the Commission requiring action.  As it does with all new crime legislation, the Commission will review the Act to determine whether Guideline changes might be necessary or appropriate.  Because the Act did not include “emergency amendment authority,” any changes to the Guidelines in response to the Act may only be made during the Commission’s annual amendment cycle.  (See 28 U.S.C. § 994). 

During the annual amendment cycle, the Commission must publish proposed guideline amendments and solicit public comment.  See 28 U.S.C. § 994(x). In order for an amendment to move forward after that, at least four Commissioners must vote in favor of promulgating the amendment. See 28 U.S.C. § 994(a).  Once at least four Commissioners have voted in favor, the Commission must deliver the promulgated amendment to Congress no later than May 1 for the 180-day congressional review period. See 28 U.S.C. § 994(p).  If Congress takes no action, the amendment can take effect on November 1 of that year.

The Commission has not yet published any proposed amendments responding to the Act.  The Commission currently has two voting members and thus lacks a statutory quorum to promulgate amendments.

January 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Impact of Risk Assessment on Judges’ Fairness in Sentencing Relatively Poor Defendants"

The title of this post is the title of this new paper now available via SSRN authored by Jennifer Skeem, Nicholas Scurich and John Monahan.  Here is its abstract:

The increasing use of risk assessment algorithms in the criminal justice system has generated enormous controversy. Advocates emphasize that algorithms are more transparent, consistent, and accurate in predicting re-offending than judges’ unaided intuition, while skeptics worry that algorithms will increase racial and socioeconomic disparities in incarceration.  Ultimately, however, judges make decisions — not algorithms.

In the present study, real judges (n=340) with criminal sentencing experience participated in a controlled experiment to test whether the provision of risk assessment information interacts with a defendant’s socioeconomic class to influence sentencing decisions.  Results revealed that risk assessment information reduced the likelihood of incarceration for relatively affluent defendants, but the same risk assessment information increased the likelihood of incarceration for relatively poor defendants.  This finding held after controlling for the sex, race, political orientation, and jurisdiction of the judge. It appears that under some circumstances, risk assessment information can increase sentencing disparities.

January 18, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

January 17, 2019

Big symposium on Lockett v. Ohio now published via University of Akron School of Law Constitutional Law Center

In this post last year I noted a call for papers by the Center for Constitutional Law at the University of Akron School of Law to commemorate the Supreme Court decision in Lockett v. Ohio, 438 U.S. 586 (1978).  I am pleased to see that the papers have now been published and are available at this link.  Here they are:

Introduction to the "Lockett v. Ohio at 40 Symposium": Rethinking the Death Penalty 40 Years After the U.S. Supreme Court Decision by Margery B. Koosed

The Other Lockett by Dennis Balske

Reflections on the Sandra Lockett Case by Peggy Cooper Davis

Justice White's Lockett Concurrence and the Evolving Standards for a Capital Defendant's Mens Rea by Jordan Berman

Lockett v. Ohio and The Rise of Mitigation Specialists by Russell Stetler

Is the Supreme Court's Command on Mitigating Circumstances a Spoonful of Sugar with a Poison Pill for the Death Penalty? by Jeffrey L. Kirchmeier

Lockett As It Was, Is Now, and Ever Shall Should Be by Karen A. Steele

Recollections on the Lockett Case in the U.S. Supreme Court by Joel Berger

Lockett v. Ohio and Its Subsequent Jurisprudence: Between Law and Politics by Cynthia Boyer

January 17, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

NY Times op-ed explores "How to Make New York as Progressive on Criminal Justice as Texas"

The New York Times this week has this notable editorial about criminal discovery that bore the provocative (and fitting) headline that I have quoted in the title of this post.  As practitioners know, these discovery issues can have a profound impact on plea practices and sentencing outcomes.  Here are excerpts:

In New York, prosecutors operate within a draconian system that gives them free rein to leave defendants in the dark about aspects of their cases for months or even years.  In cases big and small, state law authorizes prosecutors to withhold key evidence from defense lawyers and their clients until the eve or sometimes the day of trial.  Prosecutors in New York do not have a legal obligation to turn over in a timely fashion all police reports, witness names, DNA evidence, surveillance footage or anything else from their investigative files.

Though a 1963 Supreme Court decision found that prosecutors have a constitutional duty to turn over anything significant that may exonerate a defendant, that ruling has not been consistently enforced because prosecutors who flout the rule are rarely punished.  Advocates for defendants say this entrenched legal structure in New York puts a “blindfold” over the eyes of defense lawyers and their clients. And it runs up against Americans’ basic understanding of how fairness is meant to work in the legal system.

By preventing access to even the simplest information about a pending case, prosecutors thumb their noses at the presumption of innocence that is owed to every person accused of a crime.  They also run the risk of forcing the accused to make an impossible choice: Plead guilty with little to no information about their case or go to trial and risk an even harsher punishment.

New York’s law means that cases take longer to resolve, leading to backlogs; that defense lawyers are unable to advise their clients about the charges against them, let alone guide them through an often life-altering process; and that wrongful convictions can occur, in both extreme and not-so-extreme cases.

Most states, including the law-and-order bastion Texas as well as North Carolina and New Jersey, have changed their laws and procedures to allow open and early disclosure of evidence in criminal prosecutions, which has led to fairer outcomes and deterred prosecutorial abuse.  Now New York has a chance to join the mainstream on this issue....

Prosecutors defend New York’s current system not on its merits but with fearmongering, arguing that reforms will leave witnesses and victims at risk.  Disclosing the identity of a person with direct knowledge of an incident under investigation, the thinking goes, would hamper the state’s ability to protect him or her and to fight crime.

But there are sensible ways of dealing with witness safety concerns. The Brooklyn district attorney’s office, which has for decades made its evidence files readily available, shows that reform is possible.  Likewise, the states that have left the old model behind have seen no need to go back to it.  It’s time for New York lawmakers to bring the rest of the state in line with this essential notion of justice.

January 17, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

January 16, 2019

"Mens Rea Reform and Its Discontents"

The title of this post is the title of this great-looking new article authored by Benjamin Levin now available via SSRN. Here is its abstract:

This Article examines the debates over recent proposals for “mens rea reform.”  The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct.  Often, new criminal laws do not require that defendants know they are acting unlawfully.  Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state.  These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes.

Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform.  Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up — when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants.  Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.

January 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Reviewing criminal justice highlights (or low-lights) from AG nominee Barr's confirmation hearing

Other commitments are keeping me from being able to keep a close watch on the Senate confirmation hearing for President Trump's nominee to lead the Department of Justice, William Barr.  Fortunately, lots of other folks are doing so, and here is a round-up of a few pieces I have seen highlighting some of the criminal justice issues that have been discussed:

As the title of this post suggests, I surmise from this coverage that criminal justice reformers are not likely to be especially excited about the prospects for Attorney General Barr being an advocate for reforming the status quo. But I remain hopeful he will not be quite as resistant to reforms as was former AG Sessions. But time (and the political winds) will tell.

Prior related posts:

January 16, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

"Top Trends in State Criminal Justice Reform, 2018"

The title of this post is the title of this two-page briefing paper authored by Nicole Porter for The Sentencing Project which highlights significant criminal justice policy changes at the state level in 2018. Here is how the document gets started:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, intentionally address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2018.

Notably, this short document makes no mention of state level marijuana reforms, even though many are motivated, at least in part, by interest in addressing racial disparities and eliminating barriers to reentry. This reinforces my long-standing view that there is a tangible disconnect between criminal justice reform movements and marijuana reform movements.

January 16, 2019 in Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

January 15, 2019

"The Clemency Process Is Broken. Trump Can Fix It."

The title of this post is the title of this notable new Atlantic commentary authored by Rachel Barkow, Mark Holden and Mark Osler.  Here are excerpts:

It took six years of intense wrangling to get the First Step Act passed. Clemency reform, however, requires the action of only one man. The president can act alone to fix what Congress did not.

​Even the First Step Act’s primary nemesis, Republican Senator Tom Cotton, has acknowledged a role for clemency, saying as part of his attack on the legislation, “I grant that, in a particular case, the interaction of specific facts and the law can create an unjust sentence. If that happens, the best course of action is the scalpel of the governor or the president’s pardon and clemency power, not the ax of criminal leniency legislation.”

​Unjust sentences resulting from mandatory minimums are not rarities. That is why the First Step Act no longer permits mandatory minimum life sentences for third-strike drug offenses and lowered a two-strike, 20-year mandatory minimum for drug offenses to 15 years. The Act also requires that an individual first be convicted of an offense involving a firearm before receiving an additional 25-year mandatory minimum if he commits a second offense with a gun. (Previously, first-time offenders such as Weldon Angelos could receive multiple 25-year mandatory enhancements if the police documented multiple drug buys before making an arrest.)

One problem, as noted above, is that these and other welcome changes do not operate retroactively. People serving sentences now deemed excessive by Congress and the president have no recourse other than clemency to have those sentences rightsized. ​ There are more than 3,000 people left in prison serving mandatory sentences under the old firearm-enhancement law and the three-strikes provision that imposed a life sentence. Add to that the many individuals who are serving excessive sentences because of prosecutorial overcharging, and it is easy to see the urgent need to correct these injustices.

​For clemency to reach those thousands, the country needs a process that fairly, thoroughly, and efficiently evaluates candidates for a commutation (or shortening) of their sentence under the Constitution’s pardon power. At the moment, there are two possible processes, but neither works very well.

The first is informal: The president evaluates individual cases based on personal recommendations. This system does not scale.

​The second, more formal method isn’t any better. It courses through seven levels of review, much of it through a hostile Department of Justice bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place....

​Some states have better systems in place. In Arkansas, Connecticut, Georgia, and South Carolina, among others, an expert board plays a leading role in identifying and evaluating good cases. The best-functioning boards consist of people with expertise in criminal justice, social work, and psychology, and represent key stakeholders such as former judges, defense lawyers, prosecutors, and community activists who share a common belief that the purpose of the pardon power is to temper justice with mercy.

This model could work at the federal level as well. The president could create a similar board of clemency advisers who represent a diverse range of experiences, including those who work in criminal defense or corrections and people who were formerly incarcerated. Ideally, this body would be bipartisan and work collaboratively with a professional staff to identify cases for the president. This body could also track the progress of individuals granted clemency to document how they use their second chances. Many no doubt will serve their communities ably, and publicizing their experiences could help counteract the risk of a single Willie Horton–type incident overshadowing the positive stories of people who have been granted clemency....

​The members of the bipartisan coalition that pushed through sentencing reform were united by a belief in liberty, a desire to cut costs, a respect for public safety, and a belief in second chances. But as the name of their legislation indicates, sentencing reform was just a first step. Clemency should come next.

A few of many recent related posts: 

January 15, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Via distinctive 5-4 vote, SCOTUS concludes Florida robbery satisfies "physical force" requirement as Armed Career Criminal Act predicate

In this post last year, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".  This cheeky question flows from the challenges and frustrations that surround trying to figure out which prior convictions do and do not serve as predicates for application of the federal Armed Career Criminal Act's 15-year mandatory minimum term.  And today the Supreme Court added still more color to its modern ACCA jurisprudence by handing down its decision in Stokeling v. US, No. 17-5554 (S. Ct. Jan. 15, 2018) (available here).  Here is how the majority opinion in Stokeling, authored by Justice Thomas, gets started:

This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(i).  We conclude that it does.

Here is how the sole dissenting opinion in Stokeling, authored by Justice Sotomayor, gets started:

In Johnson v. United States, 559 U.S. 133 (2010), this Court ruled that the words “physical force” in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2), denote a heightened degree of force, rather than the minimal contact that would have qualified as “force” for purposes of the common-law crime of battery.  Id., at 139–140.  This case asks whether Florida robbery requires such “physical force,” and thus qualifies as a “violent felony” under the ACCA, even though it can be committed through use of only slight force. See §924(e)(2)(B).  Under Johnson, the answer to that question is no.  Because the Court’s contrary ruling distorts Johnson, I respectfully dissent.

Among the reasons ACCA jurisprudence looks like a hellscape to me is that the 2010 Johnson case being debated in this ACCA case is different from the 2015 Johnson case that declared part of ACCA unconstitutionally vague.  (In The Good Place there are lots of Janets; in the ACCA bad place, it seems, there are lots of Johnsons.)

I may have more to say about the substance of the opinions in Stokeling in a future post, but for now I will conclude my highlight the unique line-up of Justices in the 5-4 split of votes:

THOMAS, J., delivered the opinion of the Court, in which BREYER, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., and GINSBURG and KAGAN, JJ., joined

Because Justice Kavanaugh is new to the mix, it is not saying much to say this is the first time this group of Justices have come together this way.  But I cannot recall many cases in which the Chief Justice was a fourth vote for a criminal defendant but Justice Breyer served as the key fifth vote for the government.  Interesting times.

January 15, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

First scheduled execution of 2019 stayed by Texas Court of Criminal Appeals

As reported in this local article, the "Texas Court of Criminal Appeals has stopped the state’s first execution of the year, calling for a lower court to take another look at the case following changes in bite-mark science and laws regarding intellectual disability and the death penalty."  Here is more:

Blaine Milam received a stay from the court on Monday, a day before his death was scheduled. Milam, 29, was convicted in the brutal death of his girlfriend’s 13-month-old baby girl in 2008 in East Texas.

In a late appeal, Milam's lawyers argued against the state’s reliance on bite-mark testimony, which was a key part of his trial. His lawyers also claimed he was intellectually disabled and therefore ineligible for execution.

In December 2008, Milam called 911 and police in Rusk County arrived to find the body of Amora Carson, according to court opinions. The medical examiner counted 24 human bite marks on the baby’s body and found evidence of blunt force trauma and sexual assault. At trial, the prosecution linked Milam to several of the bite marks. But his attorneys now say that science has largely been discredited, pointing to the Court of Criminal Appeals’ recent decision to overturn the murder conviction of Steven Chaney....

Rusk County prosecutors, meanwhile, argued to the court that the questions over bite-mark science were settled at Milam’s trial in 2010. And they said the state had enough other evidence that it wouldn’t have affected the jury's decision at the time. They pointed to testimony that Milam told his sister from jail to find a hidden pipe wrench believed to be used in Carson’s assault — and his apparent confession to a jail nurse.

The trial court must also take another look at Milam’s claims of intellectual disability, according to the court order. The issue was raised at Milam’s trial, which prosecutors said put the issue to bed, but there has been considerable change in how the state determines such disability since 2010.

In 2017, the U.S Supreme Court tossed out the method the Texas Court of Criminal Appeals had previously used to determine who is intellectually disabled and, therefore, constitutionally ineligible to be executed. The Court of Criminal Appeals later said it would change its test, which used outdated medical standards and nonclinical factors created by its judges, including how well the person could lie. “Because of recent changes in the science pertaining to bite mark comparisons and recent changes in the law pertaining to the issue of intellectual disability ... we therefore stay his execution and remand these claims to the trial court for a review of the merits of these claims,” the court said in its order Monday....

The stay was not only the court's first of 2019 but also its first without death penalty critic Elsa Alcala, who left the bench at the end of 2018 and was replaced by Judge Michelle Slaughter. Slaughter, along with Presiding Judge Sharon Keller and Judge Kevin Yeary, dissented against the stay.

Despite the court's decision, Texas is still set to host the nation's first execution of the year. Robert Jennings is scheduled to die on Jan. 30, according to the Texas Department of Criminal Justice. Five other executions are scheduled in the state through May.

January 15, 2019 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Spotlighting continuing important debates over marijuana, mental illness and violence

Regular readers know I am quite interested in the intersection of marijuana reform and broader criminal justice issues (which partially accounts for why I have this other blog and this academic center).  So, it should come as no surprise that I have been following with interest the discussions and debates being stirred up by Alex Berenson's new book, "Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence."  The publisher's page about the this book highlights reasons why it is getting a lot of attention and a lot of push back:

An eye-opening report from an award-winning author and former New York Times reporter reveals the link between teenage marijuana use and mental illness, and a hidden epidemic of violence caused by the drug—facts the media have ignored as the United States rushes to legalize cannabis....

THC — the chemical in marijuana responsible for the drug’s high — can cause psychotic episodes. After decades of studies, scientists no longer seriously debate if marijuana causes psychosis.

Psychosis brings violence, and cannabis-linked violence is spreading. In the four states that first legalized, murders have risen 25 percent since legalization, even more than the recent national increase. In Uruguay, which allowed retail sales in July 2017, murders have soared this year.

I have not yet had a chance to read Berenson's book, but I have had a chance to cover some of his commentaries and now others' commentaries taking issue with many of his claims over at  over at Marijuana Law, Policy & Reform.  I thought it worthwhile to flag that coverage now over here, in part because I would not be surprised to see this important debate mentioned at some point during the confirmation hearing for AG nominee William Barr if he gets asked about federal marijuana laws and policies:

An especially helpfully addition to this discussion this morning comes from The Marshall Project, which has this great new piece with great contributors under the headline "How Dangerous is Marijuana, Really? A Marshall Project virtual roundtable."

January 15, 2019 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

January 14, 2019

Seeking reader suggestions for really tough (sentencing) questions for AG nominee William Barr

The Senate confirmation hearing for President Trump's nominee to lead the Department of Justice, William Barr, is scheduled to begin tomorrow morning.  The headline of this Los Angeles Times article, "William Barr to face tough Senate hearing on attorney general nomination," predict a "tough" experience for Barr.  But, from my perspective, what could really make the hearing effective is for there to be a lot of sentencing reform and criminal-justice related questions.

As the title of this post suggests, I am eager to hear from readers in the comments about that might view as really "tough" questions for AG nominee Barr.  Here are a few that I have been thinking about based only on relatively current events:

I could go on and on, of course, with questions exploring President Bush's role in ramping up the drug war, President Trump's stated interest in the death penalty for drug dealers, and myriad issues related to federal marijuana prohibition.  But at this point I will just link below to prior posts about Bill Barr and again encourage interested readers to make suggestions in the comments.

Prior related posts:

January 14, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (6)

Justice Kavanaugh joins Chief and more liberal Justices in GVR of Kentucky capital case

This morning's Supreme Court order list is fairly short and is mostly denials of certiorari. But the last page of the order list should intrigue capital sentencing fans, and it contains an order in White v. Kentucky, No. 17-9467, in which the Court vacated the decision below "and the case is remanded to the Supreme Court of Kentucky for further consideration in light of Moore v. Texas, 581 U. S. ___ (2017)."

This GVR is made extra interesting because Justice Alito issued this short dissent, which was joined by Justices Thomas and Gorsuch:

The Court grants, vacates, and remands this case in light of Moore v. Texas, 581 U. S. ___ (2017). But Moore was handed down on March 28, 2017—almost five months before the Supreme Court of Kentucky reached a decision in this case. I would accordingly deny the petition for the reasons previously stated in my dissent in Kaushal v. Indiana, 585 U. S. ___, ___ (2018), and in Justice Scalia’s dissenting opinion in Webster v. Cooper, 558 U. S. 1039, 1040 (2009).

As the title of this post suggests, I find the fact that Justice Kavanaugh did not join this dissent particularly noteworthy, though the fact that the Chief Justice usually provides the key fifth vote in these types of cases prevents me from too boldly predicting at this early stage that Justice Kavanaugh could prove to be a swing vote in capital cases akin to the role his predecessor Justice Kennedy played.

January 14, 2019 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

January 13, 2019

California Supreme Court exercises its curious, rarely-used power to reject 10 of out-going Gov's clemencies

I have often said California is a crazy and crazy-interesting state for sentencing developments, and this story about recent clemency developments showcases this reality.  The story is headlined "‘It was like a ton of bricks crushed me’: California grapples with historic clemency rejections," and here are some of the particulars:

Joe Hernandez found out that the California Supreme Court had rejected his commutation request late last month during a phone call with his wife, when she checked the online docket for his case....

His family was already planning for the possibility when, on Dec. 21, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation. “It was like a ton of bricks crushed me,” Hernandez said in a phone interview. “I didn’t know what to say. This was our first real hope after 25 years.”

Hernandez’s was one of ten clemency actions blocked by the court in the final weeks of the Brown administration, the first time since 1930 that it has rejected pardon or commutation requests under consideration by a governor.

The move stunned observers of the California Supreme Court, which under the state constitution must review clemency requests for anyone convicted of felony more than once, and has left them grasping for answers about how to proceed. The court approved 86 other applications over the past eight years.

Even Brown seemed to be unsure what to make of the rejections. He granted a historic 1,332 pardons and 283 commutations during his final two terms, part of a broader push to scale back the state’s tough-on-crime approach that began under his first governorship.

“Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is,” Brown told reporters in early January, shortly before he left office.

That leaves new Gov. Gavin Newsom, a fellow Democrat, to puzzle through the court’s position as he considers whether to continue Brown’s powerful embrace of executive clemency. “The weight of that is pretty heavy,” Newsom said at a benefit concert on Sunday before his inauguration. “The governor looks at dozens of those every single week. There’s a binder. Quite literally, every time I see him, he shows me the binder and he says, ‘This is one of the most important jobs that you will have.’”

The court wrote an administrative order in March about its role in evaluating pardon and commutation applications that stated it was not acting on the merits of the cases but rather to determine whether granting clemency would be an “abuse of power” by the governor.

Nevertheless, it’s no more clear now to experts what that boundary might be. David Ettinger, an appellate lawyer who writes a blog about the California Supreme Court called At the Lectern, said that from the information publicly available about the rejected cases, he couldn’t distinguish them from “a significant number of other life without parole commutations that the Supreme Court signed off on. I just don’t know.”

“There’s really no guidance for future courts, for future clemency requests, for future governors making requests, as to why certain ones might get blocked and certain ones won’t,” he said. “It is a problem for future courts and future governors, how to apply this general ‘abuse of power’ standard to specific cases.”

Kate Chatfield, policy director for Re:store Justice, a criminal justice nonprofit, has assisted two clients with commutation applications. She said the court’s action was unlikely to change the work of lawyers in her field or the desire of inmates to seek clemency. But she was concerned about the Supreme Court’s standard, and how to address it, if it is not a review of the merits of a case....

Santa Clara County District Attorney Jeff Rosen would also like more guidance from the court, which he said could help prosecutors focus their arguments in cases they oppose. His office weighs in on every clemency request that the governor is considering for a case they prosecuted, some of which have also been reviewed by the Supreme Court. He said his team determines a position by looking at criteria like the underlying crime, how the perpetrator has behaved in prison and the wishes of the victim’s family, a particularly important factor in murder cases.

“The thing about governors and clemency is it’s a very powerful tool that does not have a lot of checks on it,” Rosen said. “I believe that the governor would want all of the relevant information to make the decision.”

January 13, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Mandatory minimum sentencing policies and cocaine use in the U.S., 1985–2013"

The title of this post is the title of this notable new research published in the journal BMC International Health and Human Rights and authored by Lauryn Saxe Walker and Briana Mezuk. Here is its abstract:

Background

As of May 2017, the United States federal government renewed its prioritization for the enforcement of mandatory minimum sentences for illicit drug offenses.  While the effect of such policies on racial disparities in incarceration is well-documented, less is known about the extent to which these laws are associated with decreased drug use.  This study aims to identify changes in cocaine use associated with mandatory minimum sentencing policies by examining differential sentences for powder and crack cocaine set by the Anti-Drug Abuse Act (ADAA) (100:1) and the Fair Sentencing Act (FSA), which reduced the disparate sentencing to 18:1.

Methods

Using data from National Survey on Drug Use and Health, we examined past-year cocaine use before and after implementation of the ADAA (1985–1990, N = 21,296) and FSA (2009–2013, N = 130,574). We used weighted logistic regressions and Z-tests across models to identify differential change in use between crack and powder cocaine.  Prescription drug misuse, or use outside prescribed indication or dose, was modeled as a negative control to identify underlying drug trends not related to sentencing policies.

Results

Despite harsher ADAA penalties for crack compared to powder cocaine, there was no decrease in crack use following implementation of sentencing policies (odds ratio (OR): 0.72, p = 0.13), although both powder cocaine use and misuse of prescription drugs (the negative control) decreased (OR: 0.59, p < 0.01; OR: 0.42, p < 0.01 respectively).  Furthermore, there was no change in crack use following the FSA, but powder cocaine use decreased, despite no changes to powder cocaine sentences (OR: 0.81, p = 0.02), suggesting that drug use is driven by factors not associated with sentencing policy.

Conclusions

Despite harsher penalties for crack versus powder cocaine, crack use declined less than powder cocaine and even less than drugs not included in sentencing policies.  These findings suggest that mandatory minimum sentencing may not be an effective method of deterring cocaine use.

January 13, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"Prisoner-to-Public Communication"

The title of this post is the title of this recent article just posted to SSRN authored by Demetria Frank.  Here is its abstract:

The pervasive problem of over-incarceration in the United States is in part due to lack of correctional facility accountability to the public, and public lack of access to the prisoner experience. In light of the incessant persistence of over-incarceration and “hands off approach” taken by courts in prison administration, this article proposes an unqualified and unfettered prisoner-to-public communication right that would provide prison accountability to the public.

January 13, 2019 in Prisons and prisoners | Permalink | Comments (0)