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July 27, 2019

Is "comprehensive data" necessary and sufficient to "guide good policymaking" in the criminal justice system?

The question in the title of this post is prompted by this recent commentary in Governing authored by Chris Sprowls under the full headline "The Transparency the Criminal Justice System Needs: We can't have effective policymaking without comprehensive data. By mandating standardized data collection across the state, Florida is leading the way."  Here are excerpts:

What does justice in America look like?  Policymakers, law enforcement officers and academic researchers across the country have been struggling with that question, particularly as it applies to the local jails and state prisons where most offenders are held.  This issue differs from other public debates because all of us -- conservative or liberal, Republican or Democrat -- share a common goal: We all want to reduce unnecessary incarceration while maintaining public safety and freeing up tax dollars to be used for other public priorities.

Unfortunately, when it comes to incarceration, this debate has been long on passion and painfully short on facts.  That became clear two years ago, when an organization called Measures for Justice came to Florida to talk about criminal justice reform. What did criminal justice in Florida look like?  Was the system keeping communities safe? Were our tax dollars being used in efficient and effective ways?  Measures for Justice told us that we didn't know enough to answer those simple questions.

This rang true based on my experience as a gang and homicide prosecutor.  When you prosecute a case, you are focused on a snapshot of the system -- this victim, that perpetrator, these facts. It becomes very easy to lose sight of how a single case fits into the larger picture and how our actions compare to what prosecutors, judges and juries are doing in other jurisdictions.  Without access to data, we had no objective measures to use to validate our theories, disprove our assumptions or test our biases.  Even when we tried non-traditional solutions, such as the veterans court I helped to create in my state judicial circuit, we made decisions based more on instinct and observation than on information....

Florida is known as the Sunshine State, and we take that moniker seriously.  A year ago, the legislature passed a landmark criminal justice data transparency law that will go a long way toward tearing down institutional barriers and shedding light on a system that has mostly operated in the shadows.  The law mandates the standardized collection of common-sense data points in all of Florida's counties, and the legislature appropriated $1.67 million for its implementation.

This comprehensive data, spanning the criminal justice process from arrest to post-conviction, will be aggregated and made available to the public, for free, in one centralized repository.  The public, law enforcement, prosecutors, advocates and lawmakers will be able to compare the quality of justice across counties within the state.  We will finally have the data necessary to spot trends in the system and guide good policymaking.  In the this year's legislative session, lawmakers appropriated another $5.7 million to ensure that this is the nation's most ambitious pursuit of criminal justice transparency.

Other states are following suit with their own approaches to criminal justice transparency.  Colorado just passed a bill that requires jail administrators to collect data on individual cases and jail populations, and to report to a statewide agency quarterly.  Connecticut just passed a bill that requires prosecutorial data to be collected and shared alongside data germane to parole revocations.  These measures are a start in the right direction, as is a California bill making its way through the legislative process that would expand collection of criminal justice system data.   And more states are poised to follow Florida's lead.

With reliable, standardized and publicly available data, we will be able to make criminal justice policy decisions that are freer of assumptions, stereotypes and prejudice. We will be able to build the kind of criminal justice system that every American can have faith in. This is one issue where the truth really can set people free.

I share this author's affinity for "reliable, standardized and publicly available data" about the operation of our criminal justice system. But, to answer the question in the title of this post, I think that such data is necessary, but not sufficient, for good policymaking. We have really good data about the operation of death penalty systems, but few think we have use this data to drive policy in a good direction in many jurisdictions. Similarly, we have long had pretty good data about the federal sentencing system, but it is still one of the most punitive in the world.

July 27, 2019 in Data on sentencing, Detailed sentencing data | Permalink | Comments (1)

July 26, 2019

Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death

As noted in this prior post, AG William Barr has engineered a new federal execution protocol and the scheduling of executions for five federal death-row inmates in December 2019 and January 2020. Perhaps the only thing this moves mean for certain is litigation over whether the new protocol is sound and whether these executions will go forward. Here are links and excerpts from a couple articles previewing the litigation to come:

From BuzzFeed News, "The Trump Administration Is Bringing Back Federal Executions. It Will Immediately End Up In Court."  Excerpt:

Megan McCracken, a lawyer involved in the case and an expert on lethal injections, told BuzzFeed News that the litigation focuses on whether a particular execution protocol is constitutional under the Eighth Amendment’s prohibition against “cruel and unusual punishment” and also whether the process is otherwise lawful.  The lawsuit could examine, for instance, whether the Trump administration followed the proper procedures in adopting the new policy.  The administration did not go through the public rule-making process that agencies normally use in adopting regulations, which includes publishing details in advance and giving the public a chance to weigh in, before making its announcement Thursday.

“The devil is really in the details, and so all of the unknowns at this point are going to be the relevant issues for whether or not this protocol is constitutional, is lawful,” McCracken told BuzzFeed News.  “That is why the litigation that’s been on hold in federal court since 2011 ... will now need to proceed and give the court opportunity to review the procedure, the drugs, the execution teams, how they plan to administer it.”

A senior Justice Department official said that former attorney general Jeff Sessions directed the Federal Bureau of Prisons to explore options for resuming federal executions when he took office. The bureau recently concluded its review and submitted the proposal to Barr, who approved it, the official said.  The department’s press release said the new protocol was similar to single-drug procedures used in Georgia, Missouri, and Texas....

The prisoners involved in the pending litigation already had execution dates scheduled, which were put on hold.  The five men now scheduled for lethal injections aren’t parties to the case — defendants without execution dates hadn’t sought to join the case while it was delayed — but the Justice Department’s notice to the court Thursday means it expects the judge to review the new protocol.

From The Hill, "Opponents vow to challenge Justice decision on death penalty." Excerpt:

Human rights and anti-death penalty groups are vowing to challenge the Justice Department’s decision to resume the federal death penalty after a 15-year hiatus.... The groups predicted the decision would set off new lawsuits opposing the Trump administration, particularly given a decades-long move against capital punishment that has seen a number of states suspend the practice....

A number of groups, including the ACLU, have indicated that they plan to challenge the new policy, whether in court or through other means. “Under no circumstances should the Justice Department be allowed to rush through executions. The federal death penalty is defined by the same problems of racial bias, geographic disparities, prosecutorial misconduct, and junk science that have led to the decline in support for capital punishment nationwide,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in a statement....

Legal battles will likely center on how the policy is being implemented: Barr indicated in Thursday’s announcement that the protocol has already been formally adopted. But experts say that such a policy should have to go through a comment and notice period as required by the Administrative Procedure Act, and that sets it up to be challenged in court....

At least one of the planned executions is already being challenged by the death-row inmate it involves: Attorneys for Daniel Lewis Lee, whose execution is planned for Dec. 9 of this year, are speaking out against the move, saying that his conviction was secured despite the “demonstrated unreliability of the evidence.”

Lee’s attorney Morris Moon raised concerns about the DNA and other evidence used in the case, arguing that it “exemplifies many of the serious flaws in the federal death penalty system.” “Given the problems that undermine the fairness and reliability of Danny Lee’s conviction and death sentence, the Government should not move forward with his execution,” Moon said.

A lawyer for another one of the men, Purkey, also said Thursday that he shouldn’t be executed, claiming that “substandard representation permeated Mr. Purkey’s trial with errors and meant that his jury never had a full picture of his deep and sincere remorse or the personal circumstances that led to these tragic events.“

“The DOJ seeks to execute Mr. Purkey now, despite the myriad legal violations in his case and despite his advancing age and declining health,” attorney Rebecca Woodman said in a statement of her 67-year-old client. “The timing of this decision raises serious questions about the application of capital punishment under this administration."

As suggested by the title of this post, the really big question is whether this capital litigation will move swiftly or slowly. Obviously, the defendants now scheduled to be executed in less than six months would like this litigation to drag on for years. I assume the feds are eager and prepared to move this litigation along swiftly, but just how swiftly? Any ruling adverse to these defendants is sure to be appealed to a federal circuit court and to the Supreme Court. Is DOJ prepared to ask all these courts for expedited briefing schedules in order to try to preserve these scheduled execution dates?

Not mentioned in these pieces, but of great interest to me conceptually, is whether and how these defendants can constitutionally contest how AG Barr decided to put them in the front of the execution queue.  Notably, more than a dozen persons on federal death row were sentenced to death before Danny Lee was condemned in 2002, and more than a few were condemned more than half a decade before Lee.  Just why was he selected to be the first to be executed?  In addition, though less than half of federal death row is white (details here from DEPC), Danny Lee and two other of the condemned given the first execution dates are white. Did AG Barr think it might be politically useful to have more white defendants at the start of the execution queue, and if so wouldn't such thinking raise equal protection concerns?  (Because 8 of the 10 defendants sent to federal death row in the 1990s were black, including all three condemned way back in 1993, I think there is a circumstantial basis to believe that AG Barr may not have set executions dates chronologically because of concern that only black defendants would be scheduled to die first.  But is it constitutionally permissible for him to give race consideration this way?)

July 26, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Retributivist Reform of Collateral Consequences"

The title of this post is the title of this notable article authored by Brian Murray just posted to SSRN.  Here is its abstract:

This Article applies retributivist principles to discussions about collateral consequences reform.  Retributivist ideas relating to agency and responsibility, proportionality, personal and communal restoration, and the obligations and duties of the state, as well as the broader community, suggest suspicion of an expansive collateral consequences regime.  A retributivist assessment, cognizant of realities within the criminal system, reveals that many are overly punitive and disruptive of social order.

Legislatures that prioritize retribution as a justification for and constraint on punishment should think clearly about whether existing collateral consequences result in disproportionate suffering and, if so, reconsider them.  This includes the outsourcing of punishment to private actors.  Committed retributivist decision-makers within the system, such as line prosecutors, should consider how to approach the imposition of collateral consequences when acting during various phases of a prosecution.  Finally, retributivist constraints can inform whether the maintenance of criminal records by the state is justified, and for how long, as well as the scope of second-chance remedies like expungement.  These limitations could allow for robust procedural protections for petitioners for relief, shifting the burden of persuasion to the state. In short, retributive principles can be a useful tool for reform, helping to restore to ex-offenders what they deserve.

July 26, 2019 in Collateral consequences, Purposes of Punishment and Sentencing | Permalink | Comments (0)

July 25, 2019

Federal prison population, thanks in part to the FIRST STEP Act, hits lowest level in over 15 years

Federal prison populationEvery Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons. That page also has a chart and data on the total number of federal inmates for each fiscal year going back to 1980. A quick look at these data reveal that in FY 2013, the federal prison population hit a modern high of 219,298.

But this morning, we were down to "only" 177,619 inmates.  I put "only" in quotes because back in 1980, we had truly only 24,640 federal prisoners. But the last time there were fewer prisoners than this morning in federal facilities was way back in FY 2003. So I think it is quite notable and exciting to see such a decline over the last six years after such enormous growth the previous 33.

I have been following these numbers closely for a number of years, and I have been especially focused on week-to-week changes during the years of the Trump Administration because I feared that an uptick in federal prosecutions and various new sentencing directive begun under then-Attorney General Jeff Sessions might reverse the trend of prison population reduction that started during the second part of the Obama Administration.  But it seems that a lot of forces worked in various ways to kept the federal prison population at just over 180,000 inmates for much of the last three years.  And now, thanks to the FIRST STEP Act's "good time fix" finally kicking in, we are this week significantly below that 180,000 inmate threshold.

I would love to be able to predict that the FIRST STEP Act will ensure that the federal prison population keeps going down, but I am not sure that would be a sound prediction.  It is possible that the continued robust implementation of various components of the FIRST STEP Act will keep the downward trends moving.  But continued increases in the number of cases prosecutors by the Justice Department could get us back to an era of federal prison population growth (though that growth would likely be relatively modest).

July 25, 2019 in Data on sentencing, Prisons and prisoners | Permalink | Comments (1)

An effective critical review of some Prez candidates' new criminal justice reform plans

Over at The New Republic, Matt Ford has this effective discussion of some notable criminal justice reform proposals put forward by some notabe folks running for president. I recommend the full piece, which carries the full headline "Biden’s Big, Obvious Ideas for Criminal-Justice Reform: He and several other candidates have issued plans that appear ambitious only because America's system is so broken." Here are excerpts:

Taken as a whole, [Joe Biden's] plan is a tacit acknowledgement that the former vice president got it mostly wrong on criminal justice throughout his four-decade Senate career. Some of its positions, such decriminalizing marijuana and abolishing the death penalty, are specifically at odds with much of his legislative work in the 1980s and 1990s.  But it’s also among the most comprehensive packages proposed by any of the Democratic contenders.  Many of his rivals offer similar stances on sentencing reform and mass incarceration, but only South Bend Mayor Pete Buttigieg has articulated a more sweeping vision for reform.

It would be tempting to call these proposals radical, given that they would have a transformative effect on the American criminal-justice system.  But they’re only radical when viewed through the prism of establishment politics. Considered from a moral and policy perspective, they’re downright obvious.

Take solitary confinement.  Buttigieg says he would “abolish its prolonged use, bringing the United States in line with international human rights standards, which view the use of solitary confinement in excess of 15 days as per se torture.”  Biden says that he would also largely end the practice, “with very limited exceptions such as protecting the life of an imprisoned person.”  Booker, Harris, Warren, and four other Democratic senators co-sponsored a bill that would limit it to “the briefest term and under the least restrictive conditions possible.”

This would be a sharp break from the status quo in America, where tens of thousands of people are put in solitary confinement each year.  It would also bring national policy in line with the academic consensus that prolonged isolation can cause serious psychological damage.  As Buttigieg noted, the United Nations’ special rapporteur on torture recommends no more than 15 days in solitary and an absolute ban on its use for juveniles and people with mental illnesses.  The Supreme Court first acknowledged the immense toll of solitary confinement in an 1890 case, and Justice Anthony Kennedy warned in 2015 that the practice “literally drives men mad.”...

Another common theme is the intersection of mental illness and law enforcement.  Biden says he would “fund initiatives to partner mental health and substance use disorder experts, social workers, and disability advocates with police departments,” so that these people get the help they need rather than being locked up (or worse, shot dead). Buttigieg’s plan, by comparison, aims to remove police from the equation as much as possible.  He instead proposes investments in “community-based care [and] front-end social supports” that would “minimize the need for police officers to serve as de facto social workers and allow them to resume their primary role as guardians of public safety.”

Ensuring that people with mental illnesses get treated by health-care professionals instead of police officers seems like a no-brainer.  But in the U.S., the criminal-justice system doubles as the nation’s mental health-care provider of last resort.  Those without the ability or resources to obtain treatment instead find themselves funneled into jails and prisons, perhaps the least therapeutic environments imaginable....

There’s still room for improvement in the Democrats’ plans.  None of the major candidates discuss qualified-immunity reform in their plans.... Habeas corpus is another complicated but important area in need of reform....

It’s no critique of Biden, Buttigieg, or their rivals to note that they’re pushing for major changes to the way American criminal justice currently operates.  At the same time, it’s worth taking stock of how self-evident their solutions are.  Not throwing people in jail because they can’t pay court fees, and not condemning people to years or even decades of isolation, sound like baseline rules for a civilized society.  What’s truly radical is the harshness of the system that Biden and other politicians of his generation built, not the means by which it’s undone.

Prior recent related posts:

July 25, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (1)

"Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"

The title of this post is the title of this quite notable and possibly quite consequential news release from the Department of Justice this morning.  Here is the main text:

Attorney General William P. Barr has directed the Federal Bureau of Prisons (BOP) to adopt a proposed Addendum to the Federal Execution Protocol—clearing the way for the federal government to resume capital punishment after a nearly two decade lapse, and bringing justice to victims of the most horrific crimes. The Attorney General has further directed the Acting Director of the BOP, Hugh Hurwitz, to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society—children and the elderly.

“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Attorney General Barr said. “Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug—pentobarbital. Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.

Upon the Attorney General’s direction, Acting Director Hurwitz adopted the Addendum to the Federal Execution Protocol and, in accordance with 28 C.F.R. Part 26, scheduled executions for the following individuals:

  • Daniel Lewis Lee, a member of a white supremacist group, murdered a family of three, including an eight-year-old girl. After robbing and shooting the victims with a stun gun, Lee covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou. On May 4, 1999, a jury in the U.S. District Court for the Eastern District of Arkansas found Lee guilty of numerous offenses, including three counts of murder in aid of racketeering, and he was sentenced to death. Lee’s execution is scheduled to occur on Dec. 9, 2019.

  • Lezmond Mitchell stabbed to death a 63-year-old grandmother and forced her nine-year-old granddaughter to sit beside her lifeless body for a 30 to 40-mile drive. Mitchell then slit the girl’s throat twice, crushed her head with 20-pound rocks, and severed and buried both victims’ heads and hands. On May 8, 2003, a jury in the U.S. District Court for the District of Arizona found Mitchell guilty of numerous offenses, including first degree murder, felony murder, and carjacking resulting in murder, and he was sentenced to death. Mitchell’s execution is scheduled to occur on Dec. 11, 2019.

  • Wesley Ira Purkey violently raped and murdered a 16-year-old girl, and then dismembered, burned, and dumped the young girl’s body in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio and walked with a cane. On Nov. 5, 2003, a jury in the U.S. District Court for the Western District of Missouri found Purkey guilty of kidnapping a child resulting in the child’s death, and he was sentenced to death. Purkey’s execution is scheduled to occur on Dec. 13, 2019.

  • Alfred Bourgeois physically and emotionally tortured, sexually molested, and then beat to death his two-and-a-half-year-old daughter. On March 16, 2004, a jury in the U.S. District Court for the Southern District of Texas found Bourgeois guilty of multiple offenses, including murder, and he was sentenced to death. Bourgeois’ execution is scheduled to occur on Jan. 13, 2020.

  • Dustin Lee Honken shot and killed five people—two men who planned to testify against him and a single, working mother and her ten-year-old and six-year-old daughters. On Oct. 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous offenses, including five counts of murder during the course of a continuing criminal enterprise, and he was sentenced to death. Honken’s execution is scheduled to occur on Jan. 15, 2020.

Each of these inmates has exhausted their appellate and post-conviction remedies, and currently no legal impediments prevent their executions, which will take place at U.S. Penitentiary Terre Haute, Indiana. Additional executions will be scheduled at a later date.

As with so much Trump Administration activity, this news and activity is sure to generate litigation and lots of commentary. I expect I will myself have much to say in coming posts.

July 25, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (5)

Bernie Madoff seeks from Prez Trump a commutation of his 150-year federal prison sentence for massive Ponzi scheme

Notorious Ponzi schemer Bernie Madoff has served less than 10% his 150-year federal prison sentence, but at age 81 he understandably would like to find a way not to die behind bars.  This new NBC News piece, headlined "Bernie Madoff asks Trump to reduce his prison sentence for massive Ponzi scheme," reports on this high-profile offenders making a high-profile request for clemency from Prez Donald Trump.  Here are some details and lots of context:

Bernie Madoff is asking that President Donald Trump reduce his 150-year prison sentence — a a request that Madoff’s prosecutor promptly called “the very definition of chutzpah.”

Madoff, 81, is currently locked up in a federal prison in Butner, North Carolina, for orchestrating the largest Ponzi scheme in history.

The decades-long scam conducted while he headed Bernard L. Madoff Investment Securities in New York City swindled thousands of investors out of billions of dollars. Madoff, who pleaded guilty to 11 crimes in 2009, is not asking for a pardon from the president. Instead, he is requesting clemency from Trump in the form of a sentence commutation, or reduction, according to an application filed with the Justice Department.

A search of the Justice Department’s website shows that Madoff’s clemency request is “pending.”

If Trump’s previous opinions on Madoff and his family are any indication, the uber-crook faces long odds in winning an early release from prison. Trump, in his 2009 book “Think Like a Champion,” wrote that he said “no” to Madoff’s suggestion that he invest in his fund. “I had enough going on in my own businesses that I didn’t need to be associated or involved with his,” Trump wrote in his book, according to an article at the time in U.S. News & World Report.

In that same book, Trump said he knew a number of people who had invested their life savings with the scamster. “He is without a doubt a sleazebag and a scoundrel without par,” Trump wrote.

The New York Post, citing a source close to the Madoff family, two years ago reported that after Madoff’s conviction, Trump refused to rent his wife Ruth Madoff an apartment in his Manhattan buildings when she was looking for a new place to live.

The Justice Department would not reveal when Bernie Madoff’s request for clemency was submitted. But the department noted that such an application takes between one and three months to appear on the clemency section of the website. It is not known if Trump will consider the request, or when he might do so.

Madoff’s former lawyer, Ira Lee Sorkin, told CNBC he had no information about the request. The White House referred questions about Madoff’s bid for clemency to the Justice Department.

Marc Litt, who was the lead federal prosecutor in the criminal case against Madoff, to CNBC on Wednesday, “Bernard Madoff received a fair and just sentence – one that both appropriately punished him for decades of criminal conduct that caused devastating damage to tens of thousands of victims, and sent a loud and clear message to deter would-be fraudsters.”

“Madoff’s current request is the very definition of chutzpah,” said Litt, who currently is a partner at the law firm Wachtel Missry in New York, where his office overlooks the “Lipstick Building” that formerly housed Madoff’s company. “I’m confident that the career [Justice Department] attorneys responsible for evaluating such requests will reject it out of hand.”

DOJ statistics show that the department received 1,003 petitions for pardons and another 5,657 for sentence commutations that could have been considered by Trump since he was in the White House. Trump has granted 10 pardons and just four commutations.

His pardon recipients include controversial former Arizona Sheriff Joe Arpaio, Lewis “Scooter” Libby, former chief of staff for Vice President Dick Cheney, deceased boxer Jack Johnson, conservative pundit Dinesh D’Souza, and, most recently, former media mogul Conrad Black, who wrote a biography entitled “Donald J. Trump: A President Like No Other.”

Two other pardon recipients, Oregon ranchers Dwight Hammond and his son, Steven Hammond, also had their prison sentences for arson on federal lands commuted by Trump.

Madoff’s former longtime secretary also is asking Trump for a commutation of her six-year prison term for helping facilitate the Ponzi scheme, according to the Justice Department’s webpage. In January, a federal judge rejected a separate request by that secretary, Annette Bongiorno, 70, to be released into home confinement. Bongiorno has served nearly 4½ years of her prison sentence in a federal facility in New York state.

Peter Madoff, Bernie’s younger brother, pleaded guilty in 2012 to falsifying records at the Madoff investment firm, and to conspiracy to commit securities fraud. He was sentenced to 10 years in prison, and is due to be released in October 2020. There is no record of a clemency petition from Peter Madoff on the Justice Department’s website.

Ruth Madoff in May agreed to pay $594,000 and to surrender her remaining assets when she dies as part of a settlement of claims by Irving Picard, the court-appointed trustee who for years has tried to recoup money for Madoff’s customers. Ruth Madoff was never charged in connection with her husband’s crimes.

Madoff’s scheme originally was estimated to have lost upward of $65 billion for his investors. But Picard as of last November had recovered more than $13.3 billion of the approximately $17.5 billion of claims by customers who say they were swindled by Madoff’s scheme....

Madoff’s sons have both died since he was locked up. His oldest son, Mark, hanged himself in December 2010, on the second anniversary of his father’s confession to the Madoff family of his crimes. Madoff’s other son, Andrew, died in 2014 after a long battle with a rare form of cancer. Neither Andrew nor Mark were ever charged in connection with their father’s crimes.

July 25, 2019 in Celebrity sentencings, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

July 24, 2019

Eleventh Circuit panel finds federal prisoner can file a second or successive § 2255 based on SCOTUS Davis ruling

A helpful reader made sure I did not miss that an Eleventh Circuit panel issued an intricate ruling yesterday in In Re: Wissam Hammoud, No. 19-12458 (11th Cir. July 23, 2019) (available here), concerning the potential retroactive application of the Supreme Court's recent important vagueness ruling in Davis. Here is part of the opinion that highlight what it is intricate:

In his present application, Hammoud contends that his § 924(c) conviction in Count 5 is no longer constitutionally valid.  Specifically, Hammoud asserts that § 924(c)(3)(B)’s residual clause is unconstitutional, in light of the new rule of constitutional law set forth in Davis, Dimaya, and Johnson, and that his companion solicitation conviction in Count 3 could have qualified as a “crime of violence” only under § 924(c)’s now-defunct residual clause.

To determine whether Hammoud’s proposed Davis claim meets the statutory criteria, we must first address three preliminary issues: (1) whether Davis announced a new rule of constitutional law; (2) if so, whether Davis has been made retroactively applicable to cases on collateral review by the Supreme Court; and (3) whether Hammoud’s Davis claim is barred under our precedent in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016).  Only after addressing these issues may we consider the merits of Hammoud’s claim

This prisoner makes it through all of these hoops, so that this opinion ends: "Accordingly, because Hammoud has made a prima facie showing of the existence at least one of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby GRANTED as to his Davis claim regarding his § 924(c) conviction in Count 5."

July 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noticing the (inevitable?) contentions that the right people are in prison and the wrong people are getting out

At a time of considerable excitement about a range of criminal justice reforms (including leading Prez candidates seeking to outdo each other with ambitious reform proposals), and with the mainstream press giving coverage to many important human (and human-interest) stories surrounding the release of prisoners with the implementation of the FIRST STEP Act, it can be all too easy to forget that not everyone sees a need for criminal justice reform and not everyone is excited to see people released from prison.  These pieces caught my eye in recent days as providing useful examples that there are still plenty of folks eager to contend that the right people are in prison and the wrong people are getting out:

From the City Journal by Rafael Mangual, "Everything You Don’t Know About Mass Incarceration: Contrary to the popular narrative, most American prisoners belong behind bars."

From the Conservative Review by Daniel Horowitz, "Well, well: Criminal justice ‘reform’ wasn’t about ‘non-violent’ offenders after all"

From Fox News by Gregg Re, "Exclusive: Violent criminals and sex offenders released early due to 'First Step Act' legislation"

Some of these pieces are more responsible than others (e.g., the Fox News piece is particularly ugly for making much of the fact that all types of prisoners got the benefit of the "good time fix" that became effective last week). But all of these pieces highlight the kind of rhetoric and reasoning that it seems will be an inevitably enduring part of criminal justice conversations.

UPDATE: I have now seen these two notable responses to the last of the pieces noted above:

From Reason by C.J. Ciaramella, "Tucker Carlson's Unhinged Rant Against Prison Reform Makes Us All Dumber: Carlson claims the law 'allowed hundreds of violent criminals' back on the street. Here's what he didn't tell you."

From the Washington Examiner by Derek Cohen, "Tucker Carlson and John Kennedy get the First Step Act all wrong"

July 24, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

July 23, 2019

New Council on Criminal Justice launches as nonpartisan think tank and advocacy group

Counciloncj-logoMark Obbie at The Crime Report has this overview of a notable new group working toward criminal justice reform under the headline "Council on Criminal Justice Aims to Provide ‘Center of Gravity’ for Reform."  Here are excerpts:

A research and advocacy organization whose founder bills it as a new “center of gravity and crossroads” for criminal justice policy was set to launch Tuesday with a roster of prominent members from multiple disciplines across the ideological spectrum.

The Council on Criminal Justice will use its invitation-only membership to form ad hoc task forces that study and recommend model policies rooted in a data-driven, nonpartisan approach, with the goal of fixing a system that “is not producing enough safety or justice,” says Adam Gelb, the Council’s founder.

Gelb, who left Pew Charitable Trusts’ Public Safety Performance Project last August to begin recruiting members and donors, said the Council’s dual mission as a think tank and policy advocacy organization will give it a unique voice in the world of criminal justice. “There’s not any institution or organization right now that is a dedicated criminal justice organization” unaffiliated with any ideology and undiluted by partisan policy agendas, Gelb told The Crime Report....

The Council’s governing board of directors and advisory board of trustees will reflect the areas — many of them interconnected — that are now at the heart of current debates over justice reform: corrections officials and law enforcement managers, prosecutors and defense lawyers, violence interventionists and victim advocates, sentencing and reentry reformers, governors and the formerly incarcerated, and a host of others with current or former posts at all levels of government....

In the run-up to a briefing call today at 1 p.m. Eastern to announce the launch, the council already has begun its work.

A “federal priorities task force” headed by former Georgia Gov. Nathan Deal held its inaugural meeting July 15 at the Washington offices of King & Spalding, where Council trustee Sally Yates, the former deputy attorney general, is a partner. The Council’s first public event is a July 31 panel discussion in Washington on Thomas Abt’s new book about violence prevention.

Initial funding comes from patrons including Arnold Ventures, the Ford Foundation, the H.F. Guggenheim Foundation, HBO, the Joyce Foundations, New York Community Trust, and the Malcolm Hewitt Wiener Foundation. Gelb has set a five-year goal of raising $25 million....

In the run-up to this month’s launch, Gelb said he canvassed a broad cross-section of the field to make sure his notion of such a Council was “the right idea at the right time.”

The federal policy task force serves as an example of a pragmatic mindset that will guide the Council’s work. It will ask, he said, “What can the federal government do that would be most helpful, and that is actionable and realistic in the near to medium term?”

Thanks to the rare show of bipartisanship surrounding criminal justice reform, Gelb said, it’s reasonable to dream big. With the reforms achieved so far, he added, “We’re just scratching the surface of what needs to be done and what is politically possible.”

Over at Arnold Ventures one can find an extended Q&A with Adam Gelb with more about the Council at this link. The piece carries the headline "It’s Big. It’s Ambitious. It’s Bipartisan. A New Organization Seeks to Propel Criminal Justice Reform."

The still developing website for the Council on Criminal Justice is available here, with discussions of "OUR MISSION" and "OUR WORK" and "OUR MEMBERS."

July 23, 2019 in Who Sentences | Permalink | Comments (0)

"Who’s helping the 1.9 million women released from prisons and jails each year?"

The question in the title of this post is the title of this new Prison Policy Initiative publication.  Here is an excerpt (with links from the original):

As in other stages of the criminal justice system, most post-release policies and programs were created with the much larger male population in mind.  But research makes clear that women returning home have “a significantly higher need for services than men,” and that reentry supports should be responsive to the particular needs of justice-involved women:

  • Economic marginalization and poverty: As we’ve previously shown, formerly incarcerated women (especially women of color) have much higher rates of unemployment and homelessness, and are less likely to have a high school education, compared to formerly incarcerated men. These findings help explain why, in a 2012 National Institute of Justice (NIJ) study, 79% of women interviewed 30 days pre-release cited “employment, education, and life skills services” as their greatest area of need (followed closely by transition services). An earlier study (Holtfreder et al., 2004), found that poverty is the strongest predictor of recidivism among women, and “providing state‐sponsored support to address short‐term needs (e.g., housing) reduces the odds of recidivism by 83%” for poor women on probation and parole.

  • Housing: A 2017 Prisoner Reentry Institute (PRI) report identified homelessness and the lack of stable housing as the biggest problem facing women in the New York City justice system, noting that 80% of women at Rikers said they needed assistance finding housing upon discharge. A 2006 California study found that 75% of formerly incarcerated women surveyed had experienced homelessness as some point, and 41% were currently homeless. Women who can’t secure safe housing may return to abusive partners or family situations for housing and financial reasons – a point echoed in interviews with paroled women in a study by Brown and Bloom.

  • Trauma and gendered pathways to incarceration: The PRI report emphasizes the importance of gender-responsive and trauma-informedinterventions for reducing recidivism among women. According to that report, such interventions should: provide a safe, respectful environment; promote healthy relationships; address substance use, trauma, and mental health issues; provide women with opportunities to improve their socioeconomic conditions; establish “comprehensive and collaborative” community services; and prioritize women’s empowerment.

  • Family reunification: Most incarcerated women are mothers, and are frequently the primary caretakers of their children. The importance of family reunification – noted throughout the literature, by Carter et al.(2006), Brown and Bloom (2009), Wright, et al. (2012), the NIJ (2012), among others – cannot be overstated, especially given the trauma experienced by children when separated from a parent.

July 23, 2019 in Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice"

5cc204a166ae8f499c6db764-750-563As reported in this new Washington Post piece, headlined "Biden announces criminal justice policy sharply at odds with his ’94 crime law," the former Vice President and now Dem nominee front-runner Joe Biden has today release a big bold criminal justice reform plan that is new in various ways.  The Post piece provides some highlights and context, and it starts this way:

Former vice president Joe Biden, who has faced criticism from liberals for spearheading a 1994 law when he was a senator that cracked down on criminals, announced a proposal Tuesday that would eliminate the death penalty and embrace other changes at odds with that earlier legislation.

The Democratic presidential candidate would aim to pass legislation to abolish the death penalty at the federal level and offer incentives to states to follow suit, his new plan says. Convicted criminals who would face execution under current law would instead be sentenced to life in prison without the possibility of parole.

Biden’s plan also would decriminalize marijuana and expunge past cannabis-related convictions; end the disparity between sentences for powder and crack cocaine; and do away with all incarceration for drug use alone. In addition, it would create a $20 billion grant program to spur states to move from incarceration to crime prevention and eliminate mandatory-minimum sentences.

Attitudes about race and criminal justice have changed significantly over the years in both parties, partly as a result of decreasing crime rates. Democrats in particular have moved sharply away from ideas that give greater powers to the police and prosecutors, instead committing to addressing inequities that they say have damaged minority communities.

The release of Biden’s criminal justice plan comes about a week before the next round of televised Democratic primary debates, when his record is expected to come under renewed scrutiny. His support for the 1994 crime bill has been criticized by both Republicans and Democrats, who argue that it led to mass incarceration and tilted the system unfairly against African Americans.

Sen. Cory Booker (D-N.J.), one of Biden’s rivals for the Democratic nomination, offered a preview Monday morning of what is expected to come on the debate stage. “It’s not enough to tell us what you’re going to do for our communities, show us what you’ve done for the last 40 years,” Booker wrote on Twitter. “You created this system. We’ll dismantle it.”

The full "Biden Plan for Strengthening America’s Commitment to Justice" is available at this link, and it merits a read in full because it has a number of interesting elements. Here are a few excerpts from the start and from parts that caught my eye (without links and formatting):

Today, too many people are incarcerated in the United States — and too many of them are black and brown.  To build safe and healthy communities, we need to rethink who we’re sending to jail, how we treat those in jail, and how we help them get the health care, education, jobs, and housing they need to successfully rejoin society after they serve their time.  As president, Joe Biden will strengthen America’s commitment to justice and reform our criminal justice system.

The Biden Plan for Strengthening America’s Commitment to Justice is based on several core principles:

-- We can and must reduce the number of people incarcerated in this country while also reducing crime. No one should be incarcerated for drug use alone. Instead, they should be diverted to drug courts and treatment.  Reducing the number of incarcerated individuals will reduce federal spending on incarceration.  These savings should be reinvested in the communities impacted by mass incarceration....

-- Our criminal justice system cannot be just unless we root out the racial, gender, and income-based disparities in the system.... 

-- Our criminal justice system must be focused on redemption and rehabilitation. Making sure formerly incarcerated individuals have the opportunity to be productive members of our society is not only the right thing to do, it will also grow our economy....

-- Create a new $20 billion competitive grant program to spur states to shift from incarceration to prevention.  To accelerate criminal justice reform at the state and local levels, Biden will create a new grant program inspired by a proposal by the Brennan Center.  States, counties, and cities will receive funding to invest in efforts proven to reduce crime and incarceration, including efforts to address some of the factors like illiteracy and child abuse that are correlated with incarceration.  In order to receive this funding, states will have to eliminate mandatory minimums for non-violent crimes, institute earned credit programs, and take other steps to reduce incarceration rates without impacting public safety....

-- Establish an independent Task Force on Prosecutorial Discretion.  Law enforcement officials’ decisions regarding when to arrest, when to charge, and what charges to bring are critical decision-points in our criminal justice system.  The charges, for example, can dramatically impact not only what sentence someone ends up with but also whether they are compelled to take a plea bargain.  The Biden Administration will create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that results from arrest and charging decisions....

-- Eliminate mandatory minimums. Biden supports an end to mandatory minimums. As president, he will work for the passage of legislation to repeal mandatory minimums at the federal level. And, he will give states incentives to repeal their mandatory minimums.

-- End, once and for all, the federal crack and powder cocaine disparity.  The Obama-Biden Administration successfully narrowed the unjustified disparity between crack and powder cocaine sentences.  The Biden Administration will eliminate this disparity completely, as then-Senator Biden proposed in 2007.  And, Biden will ensure that this change is applied retroactively.

-- Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.  Biden believes no one should be in jail because of cannabis use.  As president, he will decriminalize cannabis use and automatically expunge prior convictions.  And, he will support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts.

-- End all incarceration for drug use alone and instead divert individuals to drug courts and treatment. Biden believes that no one should be imprisoned for the use of illegal drugs alone. Instead, Biden will require federal courts to divert these individuals to drug courts so they receive treatment to address their substance use disorder. He’ll incentivize states to put the same requirements in place. And, he’ll expand funding for federal, state, and local drug courts.

-- Eliminate the death penalty. Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.  These individuals should instead serve life sentences without probation or parole.

-- Use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes. President Obama used his clemency power more than any of the 10 prior presidents. Biden will continue this tradition and broadly use his clemency power for certain non-violent and drug crimes.

July 23, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

"Capital Punishment, 2017: Selected Findings"

The title of this post is the title of this just released report from the Bureau of Justice Statistics.  Though BJS is often the provided of the best available, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.  In any event, this new BJS report includes "statistics on the number of prisoners executed each year from 1977 through 2017, the number and race of prisoners under sentence of death at year-end 2017 by state, and the average elapsed time from sentence to execution by year from 1977 through 2017."  And the short document sets out on its initial page these "highlights":

July 23, 2019 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Spotlighting how some federal prosecutors are pushing back on some applications of FIRST STEP Act crack retroactivity

Reuters has this notable and lengthy new article on some skirmishes over the crack sentencing retroactivity piece of the FIRST STEP Act under the headline "As new U.S. law frees inmates, prosecutors seek to lock some back up." I recommend the piece in full, and here are excerpts:

Monae Davis walked out of prison on March 7, thanks to a new law that eased some of the harshest aspects of the United States’ war on drugs.  Now the U.S. Justice Department is trying to lock him back up.

As Davis, 44, looks for work and re-connects with his family, U.S. prosecutors are working to undo a federal judge’s decision that shaved six years off his 20-year prison sentence under the First Step Act, a sweeping criminal-justice reform signed into law by President Donald Trump last December.  “They’re prosecutors — it’s their job to make it hard on people,” he said. “Do I think it is right? No, it’s not fair.”

Even as thousands of prison inmates have been released by judges under the new law, federal prosecutors have fought scores of petitions for reduced sentences and are threatening to put more than a dozen inmates already released back behind bars, Reuters found in an analysis of these cases.  The reason: the Justice Department says the amount of drugs they handled was too large to qualify for a reduced sentence.

Davis, for example, reached a deal in 2009 with U.S. attorneys in western New York to plead guilty to selling 50 grams or more of crack, resulting in his 20-year sentence.  Under First Step guidelines, that carries a minimum sentence of five years, less than half the time he has already served.  But prosecutors say Davis should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms, which even under current guidelines is too high to qualify for a sentence reduction.

In a statement, the Justice Department said it is trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution.  The department said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved. “This is a fairness issue,” the department said....

More than 1,100 inmates have been released so far under this [Fair Sentencing Act retroactivity] provision in the new law, according to the Justice Department. (Another 3,100 here are being released under a separate provision that awards time off for good conduct.)

In most of the 1,100 sentence-reduction cases, U.S. prosecutors did not oppose the inmate’s release. But in at least 81 cases, Reuters found, Justice Department lawyers have tried — largely unsuccessfully so far — to keep offenders behind bars. They argue that judges should base their decision on the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.

The difference between the two amounts in these cases is often significant — and, depending on whether a judge agrees with prosecutors’ objections, can mean years of continued incarceration rather than immediate release.

Regional prosecutors’ offices, though they often enjoy great autonomy, have made it clear that they are operating on instructions from Washington. One prosecutor in western Virginia in April objected to nine sentence reductions she had previously not opposed, citing Justice Department guidelines.

The federal government has lost 73 of 81 cases in which the issue has arisen so far, according to the Reuters analysis. Prosecutors have appealed at least three of those decisions and indicated they intend to appeal 12 more. If they succeed, men like Davis would return to prison.

First Step Act advocates say the Justice Department is undercutting the intent of the law. “Many of these people have served in prison for five, 10, 15, 20 years and more. It’s time for them to be able to get on with their lives, and the notion the Department of Justice is just going to keep nagging at them and appealing these cases is not what we ever had in mind,” Democratic Senator Dick Durbin, one of the law’s authors, told Reuters.

July 23, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

July 22, 2019

A fitting tribute to the work of Mark Kleiman

A huge figure in the criminal justice reform and drug policy space passed away yesterday, and German Lopez at Vox put together this effective substantive tribute (with links) under the headline "Mark Kleiman, who changed the way we think about crime and drugs, has died at 68: RIP Mark Kleiman, one of our best criminal justice scholars and my friend."  Here is how it gets started:

Mark Kleiman, an intellectual giant in criminal justice and drug policy, died at 68 years old on Sunday due to complications from a kidney transplant, his sister confirmed.

Kleiman, who last worked as a public policy professor at New York University’s Marron Institute, was known for his imaginative approach to policy. He had a knack for breaking through simplified public debates and finding alternative answers to complex problems. As Stanford drug policy expert Keith Humphreys put it, Kleiman “was one of the most creative criminal policy experts of his generation.”

With marijuana legalization, for instance, Kleiman was known for rejecting what he described as a false choice between criminal prohibition and commercial legalization — arguing that there was a middle ground that would end prohibition while preventing the rise of “Big Marijuana,” an entity he, and other experts, feared will market pot irresponsibly just as the alcohol, tobacco, and opioid industries have.

Kleiman also helped research breakthrough approaches for tacking crime and drug misuse. His study with Angela Hawken on Hawaii’s Opportunity Probation with Enforcement (HOPE) program helped demonstrate the principles of “swift, certain, and fair” punishment — a concept that, when properly implemented, uses prison sentences much shorter than those we have today to deter people from criminal behavior, with high success rates. It suggested there was a policy approach that could lead to both less incarceration and less crime.

July 22, 2019 in Recommended reading, Who Sentences | Permalink | Comments (0)

An interesting accounting of the impact and import of Justice Stevens' sentencing jurisprudence

Stevens_cited-a2jThis new Law360 article, headlined "How Justice Stevens Protected The Rights Of The Accused," reviews a number the late Justice John Paul Stevens' biggest criminal justice opinion. Unsurprisingly, both Apprendi and Booker make the list, and even a third sentencing opinion makes the list of Justice Stevens' most cited cases. Here are excerpts from this piece:

Along with his humble tenor and penchant for bow ties, the late U.S. Supreme Court Justice John Paul Stevens also built a reputation as a defender of the rights of individuals caught in the criminal justice system and of access to the courts.

Over his nearly 35 years on the bench, the retired justice, who died Tuesday at the age of 99, crafted several opinions that either broadened individual rights within the justice system or protected those rights from assault.

From chipping away at capital punishment efforts in complicated situations to defending habeas corpus during wartime, Justice Stevens did not veer away from pulling together majority opinions on difficult cases. "I think he was very much an advocate and at the forefront of the court in terms of access to justice," Erwin Chemerinsky, dean of the UC Berkeley School of Law and founder of the Civil Justice Research Initiative, told Law360.

Three of the justice's most cited opinions deal with access to justice or criminal justice reform issues, according to Law360's analysis of data from Ravel Law....

After his retirement in 2010, Justice Stevens continued to be a regular advocate for criminal justice reforms and access to justice issues. In 2011, the American Bar Association's Death Penalty Representation Project named an award after him and the justice continued to speak out on the issues that had preoccupied him on the bench....

Here are five times Stevens came to the defense of access to justice.

Williams v. Taylor...

Apprendi v. New Jersey...

"The New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system," said Stevens' opinion. Stevens' opinion additionally said that while trial practices can change over time, they must keep to the principles underlying the constitution's right to a jury and for that jury to have all the facts necessary to make their decision beyond a reasonable doubt.

For Shon Hopwood, a Georgetown University law professor, the case inspired him to join the profession after his own conviction for bank robbery. "His fine opinion in Apprendi v. New Jersey was what got me started studying law from a prison law library," Hopwood said in a social media post on Thursday.

Rasul v. Bush...

United States v. Booker

"We recognize ... that in some cases jury factfinding may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial — a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment — has always outweighed the interest in concluding trials swiftly," Justice Stevens said in his opinion.

Baze v. Rees

Prior related post:

July 22, 2019 in Who Sentences | Permalink | Comments (1)

July 21, 2019

"The Vanishing of Federal Sentencing Decisions"

The title of this post is the title of this notable recent Forbes commentary authored by Brian Jacobs. I recommend the full piece, and here are excerpts:

In civil cases, the most important decisions that federal district judges make typically are recorded in the form of written opinions that are collected in the Federal Supplement, widely available for free online, and available in searchable databases on Westlaw and LexisNexis, among other places.  In criminal cases, by contrast, some of the most important decisions that federal district judges make — regarding what sentences to impose — are, in the vast majority of cases, lost in the ether of PACER, where they are available only to those who know precisely where to look.  This state of affairs is far from ideal for prosecutors, defense attorneys, and district judges, and it is patently unfair for criminal defendants themselves.

The scale of this problem is hard to overstate. Federal district judges make an enormous number of sentencing decisions every year. In the 12-month period ending September 30, 2018, the Administrative Office of the U.S. Courts reported that 71,550 (about 90%) of the 79,704 defendants whose cases were disposed of in federal courts entered guilty pleas, and another 1,559 were convicted at trial.  As a result, in just this single one-year period, the United States Sentencing Commission reported that there were close to 70,000 federal criminal cases in which an offender was sentenced....

District court decisions resolving sentencing disputes are typically delivered orally and memorialized only in the transcript of the sentencing proceeding itself, where judges must “state in open court the reasons for [the] imposition of the particular sentence.”  (See 18 U.S.C. § 3553(c).) (Judges also are required to complete the form entitled “Statement of Reasons.”)  Rarely do judges reduce their sentencing decisions to written opinions.  A Westlaw search of opinions published between October 2017 and September 30, 2018 (the U.S. Sentencing Commission’s last fiscal year) referencing 18 U.S.C. § 3553(a) resulted in approximately 600 federal district court opinions and 1,300 appellate decisions.  Thus, an attorney or defendant trying to research a given Guidelines issue, for example — such as the weight that district judges have given to the loss amount in fraud cases under Section 2B1.1 of the Guidelines in the last year — cannot simply run a Westlaw search in a database of district court cases for “2B1.1.”  Such a search would turn up but a small fraction of the relevant material.

Although not memorialized in written opinions, many federal sentencing proceedings are transcribed by a court reporter, and most of those transcripts are ultimately posted to PACER, an electronic service that allows public access to case and docket information for federal court proceedings for a fee.  Users can conduct simple searches on PACER by party name, judge, or keyword, for example.  Thanks to PACER, a well-heeled defendant could, for example, with substantial effort and expense, pull and review all of the sentencings that have taken place before one particular judge, or that have been handled by one particular prosecutor.  Such a search, however, would again merely scratch the surface of potentially relevant decisions (which are accruing at a rate of 70,000 a year), and would be a cumbersome, expensive, and ineffective way to mine sentencing transcripts for persuasive authority on any particular issue.  PACER does not, unfortunately, allow for searches of the text of posted documents, and there is no other way to perform such a search in a comprehensive way.

It thus remains the case today that despite technological advancements, sentencing decisions are not nearly as readily accessible as other sorts of judicial decisions, and this vanishing of federal sentences serves nobody’s interest.  A defendant facing a sentencing in a federal criminal case — one of the most important days of his or her life — is hampered in his or her ability to effectively research the hundreds of thousands of federal sentencings that have taken place in our country in recent years, any one of which might have the sort of persuasive power that could make a difference.  If this defendant had access to a searchable database of transcripts of the 70,000 sentencings that take place each year in federal district courts, perhaps the defendant would be able to find the handful of on-point and persuasive cases to highlight for the sentencing judge.  In addition, perhaps the defendant could identify and highlight trends in sentencings around the country that, in the aggregate, would persuade the sentencing court to exercise its large amount of discretion in a particular way. Because the widespread availability of federal sentencing transcripts would benefit prosecutors, defendants, and judges alike, there is a long-term need for a readily accessible searchable database of transcripts of all federal sentencings, capable of handling complex queries....

[I]t is well past time for a searchable database of federal sentencing transcripts similar to the database of district court opinions available on Westlaw and LexisNexis.  The availability of such transcripts is important to ensure, among other things, that all criminal defendants, regardless of resources, are able to present effective sentencing arguments.

July 21, 2019 in Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2)

All the real stories fit to print about the real challenges of criminal justice reform

The New York Times has been giving sustained attention to criminal justice reform stories of late, and these two recent piece especially caught my attention:

July 21, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Predictable Punishments"

The title of this post is the title of this new paper authored by Brian Galle and Murat Mungan now on SSRN.  Here is its abstract:

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness.  But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly.  Modern “big data” techniques promise to overcome this information shortfall, but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information.  Building on a formal model we prove elsewhere, we show that variability in a defendant's subjective costs of punishment should be a key consideration in any incentive system, whether it be criminal law or otherwise. Our model suggests that this variability can be mitigated with some familiar and well-tested tools.  For instance, in some situations ex ante taxes on behavior that creates a risk of harm can be preferable to ex post punitive regimes, such as the criminal law, that target primarily harms that actually arise.

Because of what we show to be the centrality of variation in subjective costs, we also argue that long-standing approaches to criminal theory and practice should be reconsidered. For instance, economic theory strongly prefers fines over other forms of punishment. We argue that this claim is typically right — indeed, it is understated — when applied to firms. But fines can be the wrong choice for incentivizing most humans, while ex ante taxes are a promising alternative.  We also show that this same analysis counsels that, if prison is the most viable punishment available, it can be more efficient to make prisons safer and less alienating.

July 21, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Litigation over capital trials during Gov moratorium heads to California Supreme Court

In prior posts linked below, I covered on this blog the decision by California Gov Gavin Newsom to declare a moratorium on executions in his state and the echoes of that decision.  This new Los Angeles Times article reports on the latest echo under the headline "Death penalty trials have continued despite Newsom’s moratorium. The California Supreme Court could stop them."  Here are excerpts:

The attorneys were about two weeks into choosing a jury in an upcoming triple-murder trial when they had to toss out the work they’d done and send the potential jurors home.

The California Supreme Court essentially froze the death penalty trial of Jade Douglas Harris, which was set to start this month, as it decides whether it will consider an argument by his defense attorney that he can’t get a fair trial in light of Gov. Gavin Newsom’s moratorium on executions in the state.

The court has until Aug. 30 to decide whether to take up a matter that could result in essentially blocking death penalty trials in California while the moratorium is in effect during Newsom’s term.

Public defenders representing Harris, who is accused in a shooting rampage that left three people dead and two others wounded, argue that jurors must believe that when they hand down a death sentence, it will be carried out....

The attorneys say a fair decision is impossible given that Newsom granted a reprieve to the more than 700 prisoners on death row and had the state’s execution chamber dismantled — with much fanfare in front of cameras.

“It’s just really impossible for a jury to go into a jury room and say, ‘We’re going to ignore that,’” said Robert Sanger, a defense attorney who first made this argument on behalf of a defendant in an unrelated capital case in Los Angeles County.... “The jury making that order has to really believe it, because if they don’t, they could be cavalier about it and just say: ‘Well, let’s send a message.… We know [the death sentence] is never going to happen, but let’s do it anyway,’” Sanger said.

Laurie Levenson, a professor at Loyola Law School, said there’s a real risk to the accused if that is the mindset of jurors. “The question is likely to be: Is there any kind of instruction or precautionary steps that a trial judge can take to prevent that from occurring?” she said. It’s hard to predict what the court will decide, Levenson said, but its stay in the Harris case signals that the state’s highest justices are taking his petition seriously. “It’s not a frivolous issue,” she said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he was disappointed the court was seriously considering what he called a “meritless argument.”

“Newsom’s moratorium only lasts for the duration of his term as governor. Nobody sentenced today would be executed within the next seven years anyway,” said Scheidegger, whose organization backed a measure to speed up executions in California. “And everybody pretty much knows that.”

Prosecutors in Johnson’s case said in court papers that any of his concerns can be handled through appropriate jury instructions and during voir dire, when jurors are questioned before the trial to determine their fitness. They argued that concerns about fairness can also be assessed on appeal....

A Los Angeles County district attorney’s office spokeswoman said in a statement that the law hasn’t changed, and until it does, prosecutors will “continue to fairly evaluate all special circumstance cases and seek death against the worst of the worst offenders, including child murderers and serial killers.”...

The American Civil Liberties Union recently published a report that said all of the 22 people sentenced to death in L.A. County since Dist. Atty. Jackie Lacey took office in December 2012 are people of color. This week, a group of more than 75 law professors and scholars called on Lacey to stop seeking death penalty sentences.

Prior related posts:

July 21, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)