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August 24, 2019

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes"

Last fall, the Washington Supreme Court showed its willingness to strike down various extreme sentences when it concluded the state's death penalty administration was so arbitrary as to be violative of the state constitution, and soon thereafter in a distinct ruling decided to categorically bar the imposition of a juvenile life without parole based again on the state constitution.  But earlier this month, this Court refused to extend this constitutional jurisprudence to LWOP sentences imposed under its recidivist statutes in Washington v. Moretti, No. 95263-9 (Wash. Aug 15, 2019) (available here).  Here is how the opinion for the unanimous Court gets started and concludes:

Under the Persistent Offender Accountability Act(POAA), the third time a person is convicted of a "most serious offense," they mustbe sentenced to life in prison without the possibility of parole.  RCW9.94A.030(38)(a), .570.  This statute is colloquially known as the "three strikes andyou're out" law.  State v. Thome, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people whowere in their 30s or 40s when they committed their third strike but were young adultswhen they committed their first strike.

We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison withoutthe possibility of parole for fully developed adult offenders who committed one oftheir prior strikes as young adults. We also hold that the sentences in these cases arenot grossly disproportionate to the crimes....

Petitioners argued that sentencing adult offenders to mandatory sentences of life without the possibility of parole under the POAA when one of their prior strike offenses was committed as young adults is either cruel, in violation of article I, I section 14 of the Washington Constitution, or cruel and unusual, in violation of the Eighth Amendment to the United States constitution. We hold that it is not.

The petitioners have not shown a national consensus against this sentencing practice, and our own independent judgment confirms that there is nothing to suggest that these petitioners are less culpable than other POAA offenders.  The sentences in these cases do| not categorically violate the Washington Constitution.  Because our I constitution is more protective than the federal constitution in this context, we need not analyze this question under the Eighth Amendment.  Finally, we hold that these sentences are not grossly disproportionate to the offenses under the Fain factors.

Adding to the intrigue of this ruling is a thoughtful concurrence by Justice Yu that was joined by two other members of the court which starts this way:

This case touches on the issue of sentencing individuals to life without the possibility of parole for a wide range of lower level offenses.  I agree with the court's narrow holding that there is currently no categorical constitutional bar to the inclusion of an offense committed as a young adult as a predicate for purposes of the Persistent Offender Accountability Act ("Three Strikes Law"), ROW 9.94A.570.   But a punishment that may be constitutionally permissible today may not pass muster tomorrow.  I therefore write separately to express my growing discomfort with the routine practice of sentencing individuals to life without the possibility of parole, regardless of the offense or the age of the offender. 

This court's decision in State v, Gregory limited the array of punishments that may be imposed for the most serious offenses by eliminating the death penalty. 192 Wn.2d 1, 427 P.3d 621 (2018) (plurality opinion).  Every death sentence in this state has been commuted to the next most severe punishment available — life without the possibility of parole. Id. at 36.  As a result, the range of offenses that require imposition of the most severe punishment the state can impose has been expanded.  Persistent offenders who have committed robberies and assaults are now grouped with offenders who have committed the most violent of crimes, including aggravated murder and multiple rapes.  The gradation of sentences that once existed before Gregory have now been condensed.  As a result, a serious reexamination of our mandatory sentencing practices is required to ensure a just and proportionate sentencing scheme.

August 24, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

August 23, 2019

Lots of advice on federal prisons for AG Barr and the new leadership at the Bureau of Prisons

As reported here, this week started with Attorney General William Barr announcing the appointment Dr. Kathleen Hawk Sawyer as the Director of the Federal Bureau of Prisons and Dr. Thomas R. Kane as the Deputy Director.  Perhaps unsurprisingly, this development has prompted some folks to share advice on how federal prison system could be better run.  Here is some of the discussion I have noticed:

By Mark Holden via the Washington Examiner, "New Bureau of Prisons leadership should focus on rehabilitation"

By Emily Mooney via the Washington Examiner, "AG William Barr must do more to fix dismal prison conditions" by

By Jaime Nawaday and Jack Donson via The Hill, "A better way to run the Federal Bureau of Prisons"

By Laura Paddison at HuffPost, "How Norway Is Teaching America To Make Its Prisons More Humane"

Via NPR, "What's Changed Since Kathleen Hawk Sawyer Last Headed Prison Bureau?"

August 23, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Florida completes execution of serial killer, the "I-95 killer."

As reported in this AP piece, "Gary Ray Bowles, a serial killer who preyed on older gay men during an eight-month spree that left six dead, was executed by lethal injection Thursday at Florida State Prison."  Here is more:

Bowles received the death penalty for the November 1994 murder of Walter Hinton in Jacksonville Beach. Hinton was Bowles' sixth and final known victim in a series of killings in an eight-month span in 1994 that terrorized the Interstate 95 corridor and won him the nickname "I-95 killer."

It began in Daytona Beach with the murder of John Hardy Roberts.  In between, there were victims in Rockville, Maryland; Savannah, Georgia; Atlanta; and Nassau County, Florida.  In each case, Bowles had a signature: He stuffed the victims' throats with objects — towels, rags, toilet paper, dirt, leaves and even a sex toy....

It wasn't hard for Daytona Beach police to figure out who killed Roberts, the first victim in March 1994: Bowles left a probation document at the scene and also was caught on an ATM camera trying to withdraw money from Roberts' account. What proved more difficult was capturing him, something they were unable to do until after five other men in three states had been slain.

Bowles, 57, was raised in West Virginia, where he experienced drugs and violence at a young age.  His father was a coal miner who died of black lung before he was born. His mother remarried multiple times, and his first two stepfathers were abusive, according to court records.  His mother and brother testified that Bowles began drinking, smoking marijuana and huffing glue when he was 11 years old.  When he was 13, he fought back against his second stepfather, smashing a rock in his head and nearly killing him, according to court records.  That's when Bowles left home.  Investigators say Bowles survived by letting gay men perform sex acts on him for money....

He also had a history of violence against women. He was convicted of beating and raping his girlfriend while living in Tampa in 1982 and sentenced to eight years in prison.  The victim had severe injuries, including tears on her vagina and anus.  

August 23, 2019 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

August 22, 2019

Sixth Circuit judge in separate opinion makes case for Eighth Amendment precluding execution of persons under 21 at time of murder

A helpful reader made sure I saw the notable concurring opinion of Sixth Circuit Justice Stranch at the end of a panel opinion rejecting a capital defendant's habeas appeal in Pike v. Gross, No. 16-5854 (6th Cir. Aug. 22, 2019) (available here). Here are the first and last paragraph of Judge Stranch's opinion, which highlight who readers might want to check out what appears in between:

I join the opinion in this case but write separately because it presents an issue with which our society must be concerned — whether 18-year-olds should be sentenced to death. Had she been 17 rather than 18 at the time of her crime, like her codefendant Tadaryl Shipp, Christa Pike would not be eligible for the death penalty....

For these reasons, I believe that society’s evolving standards of decency likely do not permit the execution of individuals who were under 21 at the time of their offense.  But, because we review this case under the strictures of AEDPA, we may grant Pike relief only if the state court’s adjudication of her case was either (1) contrary to or unreasonably applied Supreme Court precedent, or (2) “resulted in a decision that was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).  And the Supreme Court has not extended Roper to 18-year-olds.  I therefore reluctantly concur because I agree that the state court’s decision denying Pike’s postconviction petition did not unreasonably apply Strickland’s prejudice prong.

August 22, 2019 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (2)

Terrific review of localities that are "Addicted to Fines"

The latest (and sadly the last) issue of Governing magazine has this terrific lengthy cover story fully titled "Addicted to Fines: Small towns in much of the country are dangerously dependent on punitive fines and fees." I recommend the full extended article, and here is how it gets started:

Flashing police lights are a common sight all along Interstate 75 in rural south Georgia.  On one recent afternoon in Turner County, sheriff’s deputies pulled over a vehicle heading northbound and another just a few miles up on the opposite side of the interstate.  In the small community of Norman Park, an officer was clocking cars near the edge of town. In Warwick to the north, a police cruiser waited in the middle of a five-lane throughway.

These places have one thing in common: They issue a lot of tickets, and they finance their governments by doing it.  Like many other rural jurisdictions, towns in south Georgia have suffered decades of a slow economic decline that’s left them without much of a tax base.  But they see a large amount of through-traffic from semi-trucks and Florida-bound tourists.  And they’ve grown reliant on ticketing them to meet their expenses.  “Georgia is a classic example of a place where you have these inextricable ties between the police, the town and the court,” says Lisa Foster, co-director of the Fines and Fees Justice Center.  “Any city that’s short on revenue is going to be tempted to use the judicial system.”

This is by no means just a Georgia phenomenon. Throughout the country, smaller cities and towns generate major dollars from different types of fines, sometimes accounting for more than half of their revenues. Some places are known for being speed traps. Others prop up their budgets using traffic cameras, parking citations or code enforcement violations.

To get a picture of just how much cities, towns and counties rely on fines and fees, Governing conducted the largest national analysis to date of fine revenues and the extent to which they fund budgets, compiling data from thousands of annual financial audits and reports filed to state agencies. 

What we found is that in hundreds of jurisdictions throughout the country, fines are used to fund a significant portion of the budget.  They account for more than 10 percent of general fund revenues in nearly 600 U.S. jurisdictions.  In at least 284 of those governments, it’s more than 20 percent.  Some other governments allocate the revenues outside the general fund.  When fine and forfeiture revenues in all funds are considered, more than 720 localities reported annual revenues exceeding $100 for every adult resident. And those numbers would be even higher if they included communities reporting less than $100,000 in fines; those jurisdictions were excluded from our analysis.  In some places, traffic fine revenue actually exceeds limits outlined in state laws.

High fine communities can be found in just about every state, but they tend to be concentrated in certain parts of the country.  Rural areas with high poverty have especially high rates.  So do places with very limited tax bases or those with independent local municipal courts.  And these jurisdictions are far more common in the South than elsewhere.  The states that stood out in our analysis were Arkansas, Georgia, Louisiana, Oklahoma and Texas, plus New York.  Fines and forfeitures accounted for more than one-fifth of general revenues in the most recent financial audits for 52 localities in Georgia, and 49 in Louisiana.  By contrast, several Northeastern states with high property taxes had no localities exceeding the 10 percent threshold.

Notably, the big criminal justice reform plans released by major candidates for the Democratic Prez nomination all make brief mention of excessive fines of fees. But this Governing report provides an interesting insight into just how significant these matters can be for rural areas and their citizenry, and candidates eager to speak to the experiences of rural voters might want to give particular attention to this particular arena for needed criminal justice reforms.

August 22, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

August 21, 2019

Texas completes its fourth execution of year, this time of a defendant who persistently proclaimed his innocence

As reported in this local article, headlined "‘Lord forgive ’em’: Larry Swearingen executed despite claims of innocence," the state of Texas carried out an execution this evening. Here are some of the details:

For two decades, Larry Ray Swearingen told anyone who would listen that he did not kill Melissa Trotter. He knew her, he said — but wasn’t the one who raped and strangled the 19-year-old college student before dumping her body among the trees of the Sam Houston National Forest.

But on Wednesday night, the courts all turned down his final claims and the 48-year-old Montgomery County man met his end on the gurney in Huntsville. He took his final breath at 6:47 p.m., becoming the fourth man executed this year in the Lone Star State. “Lord forgive ’em,” he said. “They don’t know what they’re doing.”

Eyes closed, he began narrating his own death: “I can hear it going through the vein — I can taste it,” he said, before describing a burning in his right arm. “I don’t feel anything in the left,” he added. At 6:35, he began snoring. Twelve minutes later, he died.

In the past, he’d always managed to eke out last-minute stays before each of his last five scheduled death dates - and for months he was skeptical that the Aug. 21 execution could really come to pass. “I don’t believe you’re going to kill me,” he told the Houston Chronicle in May, likening the case against him to a house of cards. “I believe I will pull that one single card and it’s gonna come tumbling down.”

But just before 6 p.m., the U.S. Supreme Court denied his final appeal and Swearingen’s hope for reprieve faded. The condemned man’s lawyers repeatedly decried the case as a wrongful conviction built on “junk science” and circumstantial evidence that they say left behind unanswered questions about everything from the expert testimony to cellphone forensics. “They may put Larry Swearingen under,” said Houston-based attorney James Rytting said before the execution. “But his case is not going to die.”

Still, Montgomery County prosecutors were confident in their conviction and the “mountain” of evidence against him - as was Sandy Trotter, the slain teen’s mother. For her, there was never a doubt who did it. “There are no winners in this,” she said Tuesday. “We’ll never have Melissa back.”...

In December of 1998, Melissa Trotter was a student at Montgomery College, where she hoped to hone her foreign language skills and eventually pursue a career in business. Before that she’d taught at vacation Bible school and grown into a “typical 19-year-old,” according to her mother.

She met Swearingen, eight years her senior, around town — “here and there,” by his account. They struck up a casual relationship. “The evidence really did establish the friendship,” Swearingen said, “and then they turned it into murder to support their conviction.”

The two were spotted together in the college library on Dec. 8, 1998 - the day the teen disappeared. A biology teacher saw Trotter leaving campus with a man, but Swearingen has maintained it wasn’t him. And, though forensic evidence later showed the teen had been in his car, Swearingen said it wasn’t necessarily that day.

During trial, the former electrician’s wife testified that she came home that evening to find their trailer a mess. In the middle of it all were Trotter’s lighter and a pack of her brand of cigarettes. The unexpected disarray could have been the sign of a struggle, but Swearingen chalked it up to a break-in, and later filed a police report saying his home had been burgled while he was gone.

But aside from the cigarettes and the chaos, authorities eventually found half a pair of pantyhose, which state experts later said matched the hosiery wrapped around Trotter’s neck. Hunters only found her decomposing body in the woods weeks later, but by that time authorities in Galveston had already arrested Swearingen for outstanding traffic tickets.

In the summer of 2000, he was sentenced to death. Following his conviction, Swearingen’s legal team strove to dismantle the case against him, which was always circumstantial: There was never any biological evidence tying Swearingen to the slaying.

August 21, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4)

"How Do Prosecutors (and the Rest of Us) Get Sentencing So Wrong?"

The title of this post is the title of this lengthy new commentary at The Crime Report authored by James Doyle.  Here are excerpts: 

When enlightened prosecutors are forming Conviction Integrity Units to reassess old convictions, initiating Sentence Review Units to re-examine distended sentences would save money, and lead to the release of prisoners who are no longer dangerous.  It’s a very good idea, even if the problem is not as simple as it might seem.  In many states, a D.A. who has identified a grotesquely excessive sentence has no procedural avenue available for cutting the sentence. New legal tools will have to be developed....

But [even if] we cut the prison population by reviewing old sentences and releasing prisoners, how do we avoid quickly replacing them?  Don’t we have to work to understand why the horrific sentences were imposed in the first place?  Why our predecessors zigged when we know that they should have zagged?

For me, the best way to approach this question is to take a few pages from the books of medicine and aviation and follow every finding of an unjust sentence with an all-stakeholders’ forward-looking, non-blaming learning review, focused on avoiding repetition.  When a D.A. uncovers a mistaken sentence it should be treated as a “Sentinel Event” — as an opportunity to learn by mobilizing the perspectives of all ranks, in all of the professional roles implicated: cops, prosecutors, defenders, probation offices, and courts.

And we should hear from the victims, from the communities the sentences were designed to protect, and from the researchers who marshal the data relevant to the decisions and their aftermaths. (It wouldn’t hurt to hear from the defendants too.)...

My prediction is that we will find that there was a moment in almost every case that a new Sentencing Review Unit identifies when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke....

What we actually face is the work product of hard-pressed cops, lawyers, probation officers, and judges trying to get through their days.  They were not driven by ideological commitments or racist theories.  But they were under pressure — from the politicians and the media, from their caseloads, the docket lists, their peers, and administrators thirsty for “outputs.”

They didn’t set out to do extraordinary harm to individual minority defendants; it’s worse than that.  The fact is they didn’t care enough about any individual minority defendant to target one. They barely saw them. These players were seeking their own safety as much as they are seeking anything, and their strongest allegiance was to the path of least resistance.

They wanted to get to get rid of the damned case without a trial, and to move on to the next one.  Then, tomorrow, they would be able to handle that next case in the same way, as long as they managed to preserve the “going rate” today.  Long prison sentences were a weapon in their daily struggles, not their goal.

Mass incarceration was not produced by a clap of legislative thunder; it was produced by a process of drift — even if that process was assisted by new legislative levers. Each day’s longer sentence became the new departure point for the next day’s — which, in turn, was just a little bit longer. So, the new prisoner would be there to be counted next year too.  Who brought that about?  Everybody....

New Sentence Reviews will find individual cases where a prosecutor decided on an extreme sentence and rammed it through.  But more often, an extreme sentence involves acts (and omissions) from across the range of criminal justice operators involved in a case.

Each participant in a sentencing — cop, probation officer, prosecutor, defender, judge — makes choices that affect everyone else’s work.  And all of these players are buffeted simultaneously by external environmental factors: caseloads rise, budgets fall, treatment programs close, spasmodic media pressure ratchets up, options narrow....

A Sentencing Review Unit can do crucial work in correcting injustices.  But we ought to remember what is an axiom to the people who work in the field of public safety: Nothing is ever permanently “fixed”; your “fix” is under attack by its environment the moment it you put it in place.

August 21, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Rounding up some responses to AG Barr's swipe at progressive prosecutors

As noted in this prior post, Attorney General William Barr delivered these extended remarks to a police conference last week which included sharply negative comments about progressive prosecutors who, in AG Barr's words, "spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law."  Not surprisingly, lots of folks were put off by AG Barr's comments and here are just a few pieces I have noticed with reactions thereto:

From David D'Amato at The Hill, "Prosecutors are mainly to blame for the criminal justice crisis"

From Mark Gonzalez at the Washington Post, "Reform prosecutors are committed to making society fairer — and safer"

From Maura Ewing at Slate, "The Trump Administration Is Coming for Progressive Prosecutors"

From William Kelly at the Waco Tribune-Herald, "Attorney General Barr flat wrong on reformist prosecutors"

From Zack Budryk at The Hill, "Current and former prosecutors respond to Barr's 'concerning' comments on progressive DAs"

August 21, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Noticing the tendency for criminal justice reforms to become a scapegoat for all sorts of crime concerns

One of the many challenges of engineering enduring criminal justice reforms can be the tendency of some folks to attribute any new crime concerns or problems (or perceived new concerns or problems) as a harmful consequence of reforms.  All sorts of crimes and crimes rates fluctuate for all sort of reasons, but all to often there is a tendency to want to blame any significant reforms for any new crime issues even when there is little logical connections between the new reforms and the new issues.  This local article from Oklahoma, headlined "QuikTrip questioned on assertion that crime at its stores is up 300% because of SQ780," highlights these problematic dynamics:

Following the passage of a criminal justice reform state question, property crimes in Oklahoma became worse compared to other states in which QuikTrip operates, the company’s manager of public and government affairs said.  QuikTrip’s Mike Thornbrugh spoke Tuesday to the Criminal Justice Reclassification Coordination Council, which is pondering recommendations to changes to criminal justice laws....

Passed by voters in 2016, State Question 780 downgraded several nonviolent offenses from felonies to misdemeanors and reduced their associated sentences. It also increased the property value to $1,000 from $500 for a felony offense.

“The property crimes last year have increased over 300%,” Thornbrugh said. “And the lost inventory in Oklahoma is four times higher than anywhere else that we operate.”  He said the root of the problem is the increase for the dollar amount constituting a felony.  “The biggest item dollar-wise at QuikTrip is probably a carton of cigarettes, which is around $60,” Thornbrugh said. “So what we are experiencing, it takes 15, 20, 25 times for an individual to steal before (prosecutors) can even consider filing a felony.”

QuikTrip has increased security and put locks on cabinets and drawers behind checkout stands and on cooler doors for some items, he said.  But now criminals are breaking off the locks. “We are here to ask you today as you go through deliberations, please understand not everything fits every size,” Thornbrugh said. “We are concerned about the habitual career criminal. That is how they make their livelihood. We are not going after somebody that comes in and steals a donut because they are hungry.”

Oklahoma County Public Defender Bob Ravitz questioned Thornbrugh on his claims. “You mentioned that you were in numerous states,” Ravitz said. “Every one of those states you are in have a higher felony limit than the $1,000 felony limit that Oklahoma has. How come we have the problem that you are enunciating that other states don’t have?”

“Bob, I wish I could give you that answer,” Thornbrugh said.  “All I can do is to tell you the statistics we have and what we deal with day in and day out in those various states. I am not trying to avoid your question. I don’t know. We would like to know the answer to that, too.”

Ravitz said he didn’t understand Thornbrugh’s statement that the increases came after the implementation of State Question 780. Noting that nearly all of the items sold in QuikTrip cost less than $500, Ravitz maintained that raising the limit to $1,000 would not have had any effect.  QuikTrip may have seen a huge increase in crime and thefts, but it would have happened regardless of increasing the felony threshold to $1,000, Ravitz said.

Thornbrugh said there has always been theft but that the company is now seeing the same people stealing over and over again. “My point to you is a lot of these people who are habitual (offenders), they don’t care,” Thornbrugh said, adding that the thieves think nothing will happen to them. Thornbrugh said those who steal are reselling the products.

When contacted by the Tulsa World, the leader of the group that pushed for State Question 780 also dismissed Thornbrugh’s statements. “According to the data, the property crime rate in Oklahoma is at the level it was in 2016,” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform. “Property crimes tend to fluctuate year to year.  The larceny rate actually decreased in 2017 following the implementation of State Question 780 reforms but rose slightly in 2018 to 2016 levels. There is no correlation between crime rates and felony thresholds, including states that have higher thresholds than Oklahoma.”

I suppose it is plausible that petty thieves in Oklahoma somehow felt embolden to steal more cigarettes from QuikTrip convenience stories after the state passed a vote initiative that raised the felony threshold for theft.  But, as this article highlights, this does not seem to be the most obvious reason for why QuikTrip may be having such problems with theft in the Sooner State.  And yet that story that QuikTrip’s manager of public and government affairs is pressing.

August 21, 2019 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

"The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration"

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

The Article makes two conceptual contributions.  First, it tells a story about the Thirteenth Amendment forbidding one form of slavery while legitimating and preserving others. Of course, the text does not operate absent important actors: legislatures and courts.  Yet, as explained by Reva Siegel, despite “repeated condemnation of slavery,” such united opposition to the practice "may instead function to exonerate practices contested in the present, none of which looks so unremittingly 'evil' by contrast."  In this case, uncompensated prison labor inures economic benefits to the state and the companies capable of extracting it.

The Article argues that this preservation of the practice of slavery through its transformation into prison labor means only that socially, legislatively, and judicially, we have come to reject one form of discrimination: antebellum slavery, while distinguishing it from marginally remunerated and totally unremunerated prison labor, which courts legitimate.  The Article tells the story of post-slavery convict leasing; fraud and debt peonage; as well as the heinous practices imposed on children through coercive apprenticeship laws throughout the American south.  The Article then addresses modern slavery's transformations, including federal and state prison labor and the rise of private prisons.  It concludes by offering pathways forward.

August 21, 2019 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

August 20, 2019

Could execution troubles help spell the end of Ohio's use of the death penalty?

The question in the title of this post is prompted by this new local Ohio article headlined "House speaker’s support of death penalty is being tested."  Here are excerpts:

Amid Ohio’s difficulty in securing a legal means of execution, House Speaker Larry Householder says he is becoming “less and less supportive” of the death penalty.  The Republican from Glenford addressed the topic on Tuesday morning following a Statehouse press conference when asked if he continues to back capital punishment for some convicted killers.

“I think I am probably like most Ohioans, there was a time that I was extremely supportive of the death penalty,” Householder said in a video of his remarks posted on Twitter by the Statehouse News Bureau. 

“But, as time has gone on, I have become less and less supportive because of the cost, for one,” the speaker said.  “It is extremely expensive to put someone to death in lieu of keeping them in life in prison.  And, also, it’s becoming more and more difficult to do an execution ... we’ve gone from electrocution to lethal injection, now there are issues being raised about lethal injection.  It’s just become more and more difficult to do and it’s more and more expensive,” Householder said.

With a federal judge signaling Ohio’s current lethal injection protocol constitutes cruel and unusual punishment, Republican Gov. Mike DeWine’s administration has been unable to secure different drugs.  Pharmaceutical companies have threatened to cut off their sales of drugs to the state for Medicaid patients, state prisoners and others if their drugs are used in an execution, DeWine said.

DeWine has met with Householder and Senate President Larry Obhof, R-Medina, to discuss the death-penalty stalemate and explore whether the state should adopt an alternate means of execution.  The governor had said he is uncertain whether legislation will emerge this fall when legislators return to adopt another execution method, such as lethal gas.

DeWine has twice delayed the execution of convicted Columbus killer Warren Henness. Ohio’s next two executions are scheduled for Nov. 13 and Dec. 11.  Following only one execution over roughly the past two years, Ohio has killed 56 men since executions resumed in 1999. Death Row currently houses 137 men and one woman.

I have long believed that most support for the death penalty is fairly shallow and that most politicians are inclined to take their lead on this issue from public sentiments. In recent years, public support for the death penalty seems to be growing ever weaker; add administrative headaches and lots of litigation concerning execution methods, and these kinds of comments from state leaders become less surprising.

That all said, I would still be surprised to see serious legislative discussion of death penalty abolition in this (still red) state anytime soon. But maybe these comments will have a snowball effect.

A few (of many) prior recent related posts:

August 20, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Senator Elizabeth Warren releases her plan for "comprehensive criminal justice reform"

Via this lengthy new Medium post, Senator Elizabeth Warren has joined the ranks of a number prominent candidates for the 2020 Democratic Presidential nomination, in particular Joe BidenCory Booker, Pete Buttigeig and Bernie Sanders, in releasing a details agenda for criminal justice reform.  As is always the case, the full discussion merits a full read, and in this space I can only flag a few notable sentencing elements (with lots of links to be found in the original):

The United States makes up 5% of the world’s population, but nearly 20% of the world’s prison population. We have the highest rate of incarceration in the world, with over 2 million people in prison and jail.

Our system is the result of the dozens of choices we’ve made — choices that together stack the deck against the poor and the disadvantaged.  Simply put, we have criminalized too many things. We send too many people to jail. We keep them there for too long.  We do little to rehabilitate them. We spend billions, propping up an entire industry that profits from mass incarceration. And we do all of this despite little evidence that our harshly punitive system makes our communities safer — and knowing that a majority of people currently in prison will eventually return to our communities and our neighborhoods.

To make matters worse, the evidence is clear that there are structural race problems in this system. Latinx adults are three times more likely to be incarcerated than whites. For the exact same crimes, Black Americans are more likely than whites to be arrested, charged, wrongfully convicted, and given harsher sentences. One in ten Black children has an incarcerated parent....

Address the legacy of the War on Drugs. For four decades, we’ve subscribed to a “War on Drugs” theory of crime, which has criminalized addiction, ripped apart families — and largely failed to curb drug use. This failure has been particularly harmful for communities of color, and we need a new approach. It starts with legalizing marijuana and erasing past convictions, and then eliminating the remaining disparity between crack and powder cocaine sentencing. And rather than incarcerating individuals with substance abuse disorders, we should expand options that divert them into programs that provide real treatment....

Prosecutorial and Judicial Reform. Our current criminal system is complex and places enormous power in the hands of the state. The government controls what leads to pursue, what charges are levied, whether a plea is offered, and how long someone spends behind bars. It has massive resources at its disposal, and enjoys few obligations to share information and limited oversight of its actions. All of this makes it challenging to ensure that the accused can go to trial, can get a fair trial, and can receive a just and reasonable sentence if convicted. To make matters worse, race permeates every aspect of the system — people of color are twice as likely to be charged with crimes that carry a mandatory minimum sentence. Reform requires a transparent system that emphasizes justice, that gives people a fighting chance — and truly treats everyone equally, regardless of color. Here’s how we can start.

Strengthen public defenders and expand access to counsel. The Sixth Amendment provides every American accused of a crime with the right to an attorney — but too many defendants cannot afford one, and too often, public defenders are under-resourced, overworked, and overwhelmed. If we expect fair adversarial trials, we need to balance resources on both sides of each case in every jurisdiction. I’ll fund federal public defenders and expand targeted grant funding for public defenders at the state level, to ensure that they have the tools to effectively defend their clients. I’ll also reopen and expand DOJ’s Office for Access to Justice, which worked with state and local governments to expand access to counsel. We should ensure that our public defenders are paid a fair salary for their work, and that their caseloads allow for the comprehensive defense of their clients. Finally, I’ll provide funding for language and cultural competency training, including on gender identity and treatment of individuals with disabilities, so that public defenders are best able to serve their clients....

Reforming Incarceration

The federal prison population has grown 650% since 1980, and costs have ballooned by 685%. This explosion has been driven in large part by rules requiring mandatory minimum sentences and other excessively long sentencing practices. These harsh sentencing practices are not only immoral, there’s little evidence that they are effective. As president I will fight change them.

Reduce mandatory minimums. The 1994 crime bill’s mandatory minimums and “truth-in-sentencing” provisions that require offenders to serve the vast majority of their sentences have not proven effective.  Congress should reduce or eliminate these provisions, giving judges more flexibility in sentencing decisions, with the goal of reducing incarceration to mid-1990s levels.  My administration will also reverse the Sessions memo that requires federal prosecutors to seek the most severe possible penalties, and allow federal prosecutors discretion to raise the charge standards for misdemeanors and seek shorter sentences for felony convictions...

End the death penalty. Studies show that capital punishment is often applied in a manner biased against people of color and those with a mental illness. I oppose the death penalty.  A Warren administration would reverse Attorney General Barr’s decision to move forward with federal executions, and Congress should abolish the death penalty.

Use the pardon and clemency powers broadly to right systemic injustices.  The president has significant powers to grant clemency and pardons, and historically presidents have used that power broadly. But today’s hierarchical process at DOJ results in relatively few and conservative clemency recommendations. I’ll remove the clemency process from DOJ, instead empowering a clemency board to make recommendations directly to the White House. I’ll direct the board to identify broad classes of potentially-deserving individuals for review, including those who would have benefited from retroactivity under the First Step Act, individuals who are jailed under outdated or discriminatory drug laws, or those serving mandatory minimums that should be abolished.

While I will leave it to others to assess this plan as a whole, I must initially express disappointment that plan calls only to "reduce mandatory minimums"  rather than eliminate them.  And, in context, it seems that Senator Warren is only focused on the 1994 Crime Bill mandatory minimums whereas a number of other ones are far more consequential and pernicious. 

Even more worrisome is Senator Warren setting a "goal of reducing incarceration to mid-1990s levels."  Incarceration levels were already crazy-high by the mid-1990s: as this BJS report notes, "prisons at yearend 1996 totaled 427 sentenced inmates per 100,000 residents -- up from 292 in 1990."  Meanwhile, at the end of 2017, as detailed in this BJS document, ten years of small reductions had us down to "440 sentenced prisoners per 100,000 U.S. residents."  In other words, our incarceration rates are already pretty close to "mid-1990s levels" and we might well be below those levels by the end of this year thanks in part to the FIRST STEP Act and its echoes.

A few of many prior recent related posts:

August 20, 2019 in Campaign 2020 and sentencing issues, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Another perspective on the scope of FIRST STEP Act crack resentencing

A few weeks ago in this post I noted the Fifth Circuit ruling in US v. Hegwood addressing intricate question of whether, when Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, it enabled a district court is to conduct a full resentencing or a more limited sentencing modification for eligible offenders.  The Fifth Circuit panel in Hegwood affirmed an approach FSA retroactivity as involving only a modest sentence modification proceeding rather than a complete resentencing. 

This morning I got an email flagging an earlier district court ruling US v. Payton, No. 07-20498-1, 2019 WL 2775530, at *4 (E.D. Mich. July 2, 2019), that goes the other way on this important and consequential issue.  Though predating Hegwood, Payton provides a useful overview and perspective that seemed worth reprinting to create a counterpoint to Hegwood:

District courts across the country are wrestling with this issue.  Many courts have ruled that the First Step Act, in conjunction with § 3582(c)(1)(B), does not authorize a full resentencing; broadly applying Dillon, they have found that a court’s authority under the First Step Act is as constrained as its limited authority under § 3582(c)(2). See Rose, 2019 WL 2314479, at *6 (internal citations omitted).

But a growing number of courts have found just the opposite — that the First Step Act vests the Court with broad discretion to resentence defendants considering the § 3553(a) factors, including the case law and Guidelines in effect today.  See, e.g., United States v. Stone, No. 96-cr-403, 2019 WL 2475750, at *2 (N.D. Ohio June 13, 2019); United States v. Biggs, No. 05-cr-316, 2019 WL 2120226, at *3 (N.D. Ill. May 15, 2019); Simons, 375 F. Supp. 3d 379; United States v. Dodd, 372 F. Supp. 3d 795, 797–98 (S.D. Iowa Apr. 9, 2019); United States v. Powell, 360 F. Supp. 3d 134, 140 (N.D.N.Y. 2019); United States v. Newton, No. 02-cr-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1, 2019); see also United States v. Booker, No. 07 CR 843-7, 2019 WL 2544247, at *3 (N.D. Ill. June 20, 2019); United States v. Black, No. 04-cr-100, 2019 WL 2402969, at *5 (E.D. Va. June 7, 2019); Rose, 2019 WL 2314479, at *7; Shelton, 2019 WL 1598921, at *2....

The Court agrees with Defendants that the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison. See Biggs, 2019 WL 2120226, at *3 (“Because the potential reduced penalties for covered offenses could influence the range of recommended penalties for non-covered offenses, ‘impos[ing] a reduced sentence as if ... the Fair Sentencing Act ... were in effect’ entails resentencing on all counts.”); see also Pepper v. United States, 562 U.S. 476, 481 (2011) (holding that “a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.”).

This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.  See United States v. Allen, No. 3:96-CR-00149, 2019 WL 1877072, at *3 (D. Conn. Apr. 26, 2019); Simons, 375 F. Supp. 3d at 389.

It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the FIRST STEP Act that makes its way to the US Supreme Court.

Prior related post:

August 20, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

August 19, 2019

AG Barr announces new leadership for the federal Bureau of Prisons

A high-profile controversy in the criminal justice can have lots of ripples, and those ripples made it to the head of the federal Bureau of Prisons as detailed in this official press release from the US Department of Justice. Here are the basics:

Attorney General William P. Barr today announced he will appoint Dr. Kathleen Hawk Sawyer as the Director of the Federal Bureau of Prisons (BOP) and Dr. Thomas R. Kane as the Deputy Director of the Federal Bureau of Prisons (BOP).  Dr. Hawk Sawyer previously served as Director of BOP from 1992 – 2003.

“I am pleased to welcome back Dr. Hawk Sawyer as the Director of the Federal Bureau of Prisons. Under Dr. Hawk Sawyer’s previous tenure at the Bureau, she led the agency with excellence, innovation, and efficiency, receiving numerous awards for her outstanding leadership, “ said Attorney General Barr.  “I am also pleased to announce Dr. Thomas R. Kane as the Deputy Director of BOP. Dr. Kane served in the Bureau for over thirty years under four Attorneys General and is known for his expertise and proficiency in prison management and organization. During this critical juncture, I am confident Dr. Hawk Sawyer and Dr. Kane will lead BOP with the competence, skill, and resourcefulness they have embodied throughout their government careers.  I would also like to thank Hugh Hurwitz, Acting Director of BOP, for his dedication and service to the Bureau over the last fifteen months.  I have asked Mr. Hurwitz to return to his responsibilities as Assistant Director of BOP’s Reentry Services Division, where he will work closely with me in overseeing the implementation of one of the Department’s highest priorities, the First Step Act.”

August 19, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Seeking input and perspectives on "hot topics" in sentencing law, policy and practice

I am very excited that this afternoon I have the honor and privilege to begin teaching a new group of bright Ohio State students my Sentencing Law course.  I have taught this three-credit, upper-level course nearly every other year since I started teaching waaaaay back in 1997.  Since 2003, I have had the added pleasure of teaching from my own co-authored casebook, and this time around I get to use the new streamlined Fourth Edition of Sentencing Law and Policy: Cases, Statutes, and Guidelines.

As regular readers can imagine, because sentencing law has changed a lot over the past 20 years, my course coverage has changed a lot over the years.  Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and intellectually disabled murderers and whether there were any constitutional concerns with federal judicial fact-finding based on a preponderance of evidence to increases guideline sentencing ranges.

Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring.  But each time I teach this course, in addition to reviewing the basics of capital punishment and federal sentencing doctrines, I am eager to include coverage of the most-pressing/most-interesting/most-consequential topics of current doctrinal and policy debate. 

So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider important "hot-topic" units in a three-credit, upper-level Sentencing Law course.   Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they might assume my students now learn about when they hear they have taken a course on Sentencing Law.  (A similar post from 5.5 years ago generated a couple dozen interesting comments which are still interesting and timely.  But I am eager to see what readers might have to say now.)

August 19, 2019 in Recommended reading, Who Sentences | Permalink | Comments (5)

"More than half of Michigan juvenile lifers still wait for resentencing"

The title of this post is the title of this notable recent report from the Detroit Free Press spotlighting how slow the state has been to implement the Supreme Court's Eighth Amendment rulings in Miller and Montgomery limiting the use of LWOP for juvenile offenders.  I recommend the piece in full, and here is how it gets started:

Three and a half years after the U.S. Supreme Court ruled that juvenile lifers should have the opportunity to be re-sentenced and come home, more than half in Michigan are still waiting to go before a judge to learn their fate, according to a Free Press analysis.  That means nearly 200 inmates are waiting for a judicial review.

“We are not resolving cases at the rate that you would hope, given that the United States Supreme Court said these sentences should be rare," said Tina Olson, an attorney with the Michigan State Appellate Defender Office (SADO), whose office is representing roughly two-thirds of the state’s cases.

In 2012, the court ruled in Miller v. Alabama that juveniles should no longer be sentenced to mandatory life terms, citing developmental differences in the teenage brain, as well as the ability for rehabilitation.  The high court doubled down on the decision in January 2016, ruling in Montgomery v. Louisiana that the Miller opinion should be applied retroactively.

While the 2016 Montgomery decision should have resulted in a clear-cut path for juvenile lifers, the system remains speckled with question marks.  And since the opinion left the application of the ruling up to each state, there is little agreement on what this process should look like.  Take, for example, Philadelphia County in Pennsylvania, which had almost as many juvenile lifers as the entire state of Michigan.  It is expected to complete all but 10 of its resentencing cases by the end of the summer.  Not a single juvenile lifer in the county has been given a new life sentence so far.

By and large, prosecutors in Michigan defend the slower process, contending they are thoughtfully weighing each case.  "We tried to take a serious look at the criteria set forth in Miller, and put those factors into play when making those decisions on each case," said Kent County Prosecutor Christopher Becker, whose office was responsible for making sentencing recommendations for 23 defendants.  Thirteen were originally recommended for continued life sentences — one was subsequently re-evaluated and changed to a term of years.

"I don’t think there is anything wrong with the pace," he said, explaining that a good number of the state's juvenile lifers have not yet served 25-years — the minimum requirement for resentencing — and therefore getting them before a judge is not as paramount.  Only four of the 23 juvenile lifers in Becker’s county, for example, have served 25 years so far.

While the state has made progress around resentencing — as of July 1, 86 of the state’s 354 juvenile lifers had been released, a 300% increase since fall 2017 — defense attorneys and a new crop of progressive prosecutorial candidates are raising questions.  Olson, and others like her, point to the fact that in July 2016, when Michigan prosecutors had to submit their resentencing recommendations, they, as a whole, requested continued life sentences for 66% of the state’s juvenile lifers — a figure that appears incongruous with the Supreme Court’s ruling that the sentence should just be reserved for "the rare juvenile offender whose crime reflects irreparable corruption."

While prosecutors have been able to walk back and change recommendations for continued life, and judges can rule against a prosecutor's recommendation, the original sentences more or less placed defendants on a slower track, as those originally recommended for a resentencing (known as a term of years) were prioritized in the process.  The 66% that were slotted for continued life were, therefore, de-prioritized.

Under Michigan state law, a recommendation of term of years goes directly to a judge for sentencing, while a recommendation of continued life is a much more time-consuming legal process that can involve a hearing, evidence and witnesses.  For several years, Michigan criminal justice players were debating whether these hearings should be heard by a judge or a jury — an uncertainty that, until the Michigan Supreme Court weighed in last summer, prompted many prosecutors to place such cases on hold.

And so, while there are several factors that have contributed to the slow resentencing process — clunky bureaucracy, disagreements over procedures, and a lack of an official database tracking the process — the original resentencing recommendations have been highlighted as a major contributing factor. The first in a litany of interconnected holdups.

August 19, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

August 18, 2019

Senator Bernie Sanders releases criminal justice reform plan under banner "Justice and Safety for All"

A number prominent candidates for the 2020 Democratic Presidential nomination, in particular Joe BidenCory Booker and Pete Buttigeig, have put forth major criminal justice reform plans in recent months.  The latest to join their ranks in Senator Bernie Sanders, who today released this extended plan with lots of reform rhetoric and more than a few notable concrete proposals.  I recommend reading the full plan, and here are excerpts with just some of the some rhetoric and some particulars that especially caught my attention:

Due to the historical legacy of institutional racism in this country, mass incarceration disportionately falls on the shoulders of black and brown people in America. In fact, black Americans are incarcerated at five times the rate of white Americans, and even though people use drugs like marijuana at roughly the same rates across all races, black Americans are nearly four times more likely to be arrested for marijuana possession than white Americans. These disparities pervade every aspect of the criminal justice system. Black Americans, and especially young black men, are more likely to be stopped by the police, subjected to excessive force, arrested, and jailed than whites.

When Bernie is president, we will finally make the deep and structural investments to rebuild the communities that mass incarceration continues to decimate. We must move away from an overly-punitive approach to public safety and start focusing on how to safeguard our communities, prevent the conditions that lead to arrests, and rehabilitate people who have made mistakes....

Right to Counsel

In 1963, the Supreme Court decided Gideon v. Wainwright, guaranteeing all felony defendants counsel, yet today 90 to 95 percent of criminal cases are decided by a plea deal, too often without the defendant playing an active role.

Across the United States, more than 80 percent of felony defendants cannot afford a privately retained lawyer and have to rely on state-administered public defenders or court-appointed counsel. Yet in states across the country, public defenders have far too many clients and too few resources to offer adequate representation. Despite the often heroic efforts of public defenders and other appointed counsel, the workload makes it impossible to provide the quality of representation that each defendant deserves.  77 percent of black Americans and 73 percent of Latinos in state prisons had a public defender or court-appointed counsel, yet 75 percent of county-based public defender offices have exceeded the maximum recommended limit of cases received per attorney.

America must not be a country where only the rich enjoy the protections of the Fifth Amendment. We must not have a court system that offers “the best justice money can buy.” We must guarantee all Americans their Sixth Amendment rights.

As president, Bernie will:

  • Triple national spending on indigent defense, to $14 billion annually.
  • After a review of current salaries and workload, set a minimum starting salary for all public defenders.
  • Create and set a national formula to assure populations have a minimum number of public defenders to assure full access to constitutional right to due process.
  • Establish federal guidelines and goals for a right to counsel, including policies that reduce the number of cases overall.
  • Create a federal agency to provide support and oversight for state public defense services.
  • Authorize the Department of Justice to take legal action against jurisdictions that are not meeting their Sixth Amendment obligations.
  • Cancel all existing student debt and cancel any future student debt for public defenders through the Public Service Loan Forgiveness Program....

Ending Mass Incarceration and Excessive Sentencing....

As president, Bernie will:

  • Abolish the death penalty.
  • Reverse the Trump administration’s guidance on the use of death penalty drugs with the goal of ending the death penalty at the state level.
  • Stop excessive sentencing with the goal of cutting the incarcerated population in half.
  • End mandatory sentencing minimums.
  • Reinstate a federal parole system and end truth-in-sentencing. People serving long sentences will undergo a “second look” process to make sure their sentence is still appropriate.
  • End “three strikes” laws. No one should spend their life behind bars for committing minor crimes, even if they commit several of them.
  • Invigorate and expand the compassionate release process so that people with disabilities, the sick and elderly are transitioned out of incarceration whenever possible.
  • Expand the use of sentencing alternatives, including community supervision and publicly funded halfway houses. This includes funding state-based pilot programs to establish alternatives to incarceration, including models based on restorative justice and free access to treatment and social services.
  • Revitalize the executive clemency process by creating an independent clemency board removed from the Department of Justice and placed in White House....
  • Legalize marijuana and vacate and expunge past marijuana convictions, and ensure that revenue from legal marijuana is reinvested in communities hit hardest by the War on Drugs....
  • Raise the threshold for when drug charges are federalized, as federal charges carry longer sentences....
  • Institute a full review of the current sentencing guidelines and end the sentencing disparity between crack and cocaine.

 

A few of many prior recent related posts:

August 18, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

North Carolina Supreme Court holds mandatory lifetime GPS monitoring for some sex offenders violates Fourth Amendment

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.  Here is part of the start of the majority opinion (authored by Justice Earls) in this latest version of Grady:

The United States Supreme Court has determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders, which involves attaching an ankle monitor “to a person’s body, without consent, for the purpose of tracking that individual’s movements,” constitutes a search within the meaning of the Fourth Amendment.  Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). The Supreme Court remanded the case for an examination of “whether the State’s monitoring program is reasonable — when properly viewed as a search.” Id. at 1371....

In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional.  The Court of Appeals reversed, but only as to Mr. Grady individually.  We conclude that the Court of Appeals erroneously limited its holding to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies equally to anyone in Mr. Grady’s circumstances.  Cf. Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that state statutes mandating a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to a specific group, namely juveniles who did not commit homicide).

In North Carolina, “SBM’s enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime trackers.’ ” State v. Bowditch, 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010).  Mr. Grady is in the third of these categories in that he is subject to SBM for life and is unsupervised by the State through probation, parole, or post-release supervision.  Additionally, Mr. Grady is a “recidivist,” which makes lifetime SBM mandatory as to him without any individualized determination of the reasonableness of this search.  Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14- 208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are in the third Bowditch category and who are subject to mandatory lifetime SBM based solely on their status as a “recidivist,” we modify and affirm the opinion of the Court of Appeals.

And here is a paragraph from the start of the dissenting opinion authored by Justice Newby:

Using the remand as an opportunity to make a broad policy statement, the majority, though saying it addresses only one statutory classification, recidivist, applies an unbridled analysis which understates the crimes, overstates repeat sex offenders’ legitimate expectations of privacy, and minimizes the need to protect society from this limited class of dangerous sex offenders.  The majority’s sweeping opinion could be used to strike down every category of lifetime monitoring under the SBM statute.

August 18, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Enduring examinations of the data and dynamics of modern mass incarceration

Professor John Pfaff's important book on modern criminal justice systems in the United States, Locked In: The True Causes of Mass Incarceration - and How to Achieve Real Reform, was published more than 2.5 years ago.  But the data and themes covered in this book remain quite timely, as well evidenced by two new pieces published this week.  The first is by Pfaff himself in Politico under the headline "What Democrats Get Wrong About Prison Reform." A paragraph from the start of this piece provides highlights: 

Drug crime is not what’s driving the high prison population in the United States.  It’s crimes of violence.  And this omission has consequences. It means that any “solution” is unlikely to achieve its intended goal and in the meantime society will continue to suffer long-term damage — physical, psychological and economic — from a persistent cycle of unaddressed violent crime.

The second is this much longer treatment of these important subjects in the Federalist Society Review under the title "Two Views on Criminal Justice Reform: The Author and a Critic on Locked In." This document has two terrific pieces: (1) an "An Interview with Professor John Pfaff" curated by Vikrant Reddy, and (2) "Refreshing Candor, Useful Data, and a Dog’s Breakfast of Proposals: A Review of Locked In by John Pfaff" authored by Kent Scheidegger. Here is how Scheidegger's review of Pfaff gets started:

John Pfaff gives us two books under one cover in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.  In the first book, he tells us that nearly everything we have been told about so-called mass incarceration by his fellow “reform” advocates is false.   His candor is a breath of fresh air. He convincingly makes the case with a mound of useful data.

The second book, in contrast, is thinly supported and heavily influenced by Pfaff’s predispositions.  He tells us that high incarceration rates are caused primarily by overcharging prosecutors, though his data do not rule out alternative hypotheses.  He claims that the election of tough prosecutors is caused by the “low-information, high salience electorate,” not by informed people who genuinely and justifiably disagree with him on priorities.   The primary ingredients in his stew of solutions are tools to save the ignorant masses from themselves by making our society less democratic and our criminal justice decision-makers less responsible to the people.  Other intriguing possibilities raised by his data go unexplored.

Pfaff does not define what he means by “reform,” but he appears to use that term for policies that have the single-minded purpose of reducing the number of people incarcerated.  Obviously, that is not the sole or universally accepted meaning of the term in criminal justice. The Sentencing Reform Act of 1984 definitely did not have that purpose.  In this review, I will put the word “reform” in quotation marks when used in Pfaff’s sense.

August 18, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)