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September 13, 2019

Felicity Huffman sentenced to 14 days in college bribery scandal 

Especially in high-profile cases, I have a tendency to predict (i.e., guess) that a judge will be inclined to impose a sentence somewhere in the middle between the two sentencing recommendations put forward by the prosecution and the defense.  Given that federal prosecutors in the Felicity Huffman case urged  one-month sentence, and that her defense team sought no jail time, I suppose I should have predicted this result (as reported by ABC News): "Felicity Huffman sentenced to 14 days in prison for 'Varsity Blues' college scam." 

This USA Today piece provides some highlights from the sentencing hearing and the preliminary "loss" ruling made by by the District Judge that also should ensure a number of the other defendants in this case are feeling better about their likely fate in future sentencings:

U.S. District Judge Indira Talwani sentenced Huffman to [14 days of] prison time as well as a $30,000 fine, supervised release for one year and 250 hours of community service in the case's first sentencing of a parent – a defendant who is also one of the case's most famous.

She was confronted in court by a prosecutor who argued for a prison term and said she had shown "disdain and contempt for the rule of law." But her legal team argued that she should not be treated "more harshly" because of her wealth and fame.

Huffman also apologized again for her actions and reiterated her regrets to her family. "I take full responsibility of my actions and making amends with my crime," she said. "I will deserve whatever punishment you give me."...

Assistant U.S. Attorney Eric Rosen argued forcefully in court, saying "the only meaningful and efficient sanction is prison" and "there is simply no excuse for what she did.”

"With all due respect to the defendant, welcome to parenthood," he said. "What parenthood does not do is it does not make you a felon, it does not make you cheat… Most parents have the moral compass to not step over the line. The defendant did not."

He noted that Huffman did not disengage from her conduct "until the very, very end.” She showed “disdain and contempt for the rule of law,” Rosen said....

Huffman's attorney, Martin Murphy, argued for 12 months of probation and 250 hours of community service for Huffman. He disputed the government’s argument that probation is “not real punishment,” calling that a “penological joke. That is simply wrong and it is wrong as a mater of law. … A sentence of [probation]is real punishment.”

Murphy called for a sentence that treats Huffman like other similarly situated defendants, "not more harshly or more favorably for her wealth....Unlike what the government says, that is not fair."...

The judge issued an order Friday agreeing with the court's probation department, which found no financial losses, and thus no victim, as a result of actions by any defendant, including Huffman. It's a blow to prosecutors, who had argued universities and testing companies suffered damages. Still, Talwani said sentences will account for "consideration of all of the factors" outlined in federal guidelines.

Prior related posts:

September 13, 2019 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (3)

September 12, 2019

"The Democrats’ Shameful Legacy on Crime"

The title of this post is the title of this notable new New Republic piece by Marie Gottschalk.  It carries this subheadline: "Bill Clinton isn't the only one who deserves blame for turning America into a carceral state."  Here are excerpts:

For decades, a growing number of Democrats had been trying to reposition themselves as the party of law enforcement and to lure white voters away from the GOP.  With Senator Joe Biden of Delaware, chair of the Senate Judiciary Committee, urging Clinton to seize control of the issue by “upping the ante,” Democrats and Republicans engaged in a bidding war to see who could be the toughest and meanest sheriff in town.

The $30 billion law [known as the 1994 Crime Bill], passed 25 years ago this month, was the capstone of their efforts.  It included some modest funding for crime prevention programs, such as “midnight basketball,” but its main thrust was a vast array of punitive measures.  The crime bill funded 100,000 new police officers, established a federal three-strikes law, authorized more than $12 billion to prod states to lengthen time served and build new prisons, banned certain assault weapons, created dozens of new death penalty offenses, and ended federal educational Pell grants for inmates.  The crime bill did not significantly lower crime rates; it did, however, help transform the United States into the world’s warden, incarcerating more of its residents than any other country.

The United States has now begun a long overdue national reckoning about the bill — four years ago, Hillary Clinton faced questions about her and Bill Clinton’s complicity in mass incarceration, and Biden has also had to answer for his leading role in engineering the punitive turn taken by the Democratic Party.  But this reckoning still falls far short, partly because deep misunderstandings persist about the wider impact of the bill and other get-tough measures that built the carceral state over the last five decades.

While the Clintons and Biden are guilty as charged, they had many accomplices, some of whom were not the usual suspects.  For years, House and Senate Democrats had been pushing new legislation to curb domestic violence, but it did not come up for a floor vote until the Senate incorporated the measure into the crime bill in fall 1993.  To its credit, the Violence Against Women Act heightened public awareness of sexual assault and domestic violence and provided states and communities with important new resources for crisis centers, shelters, hotlines, and prevention programs.  But VAWA also emphasized law enforcement remedies and included measures that raised serious civil rights concerns — all with the help of many national and local organizations working against rape and domestic violence.  Many of these groups have since had second thoughts about “carceral feminism.”

During her presidential campaign, Hillary Clinton claimed that the crime bill was passed with strong support from African Americans who were clamoring for tough measures to halt rising crime rates.  In reality, African Americans were deeply divided over the legislation and other criminal justice issues.  These divisions have only widened in the 25 years since then, as a new generation of “post-racial” black politicians sought to appeal to white and African American voters by castigating young black men and women as addicts, drug dealers, and common street criminals.  (In one notable example from 2011, then-Mayor Michael Nutter of Philadelphia chastised black fathers as “sperm donors” and “doggone hoodie-wearing teens.”)  With the rise of Black Lives Matter, however, these and other activists are at last calling attention to the ways in which mass incarceration constitutes a new system of social control, one with disturbing parallels to the old Jim Crow era.

This stark reality is now a leading public issue, as it should be.  But it overshadows the deepening impact of the carceral state on other demographic groups.  The incarceration rate for white Americans — about 633 per 100,000 residents — appears relatively low compared to the rates for African Americans (3,044 per 100,000) and Hispanics (1,305 per 100,000), but it is more than ten times the national incarceration rates of certain Western European countries.  All told, half of all adults in the United States — or about 113 million people — have seen an immediate family member go to jail or prison for at least one night.

September 12, 2019 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Council on Criminal Justice produces papers on "The 1994 Crime Bill: Legacy and Lessons"

Via email, I learned the Council on Criminal Justice has a great new set of developing papers and resources taking a close look at the 1994 Crime Bill.  The materials are assembled on this page, and here are highlights:

On September 13, the Crime Bill turns 25.  After a quarter century, it’s as controversial as ever — and as important to understand.

What did the Crime Bill actually do? What does the research say about the impact it had on crime and justice? What lessons does it offer policymakers today?

To help answer these critical questions, the Council commissioned analyses from some of the nation’s most respected crime experts.  Papers examining the major provisions of the bill will be released over the coming months.

Overview and Reflections - Richard Rosenfeld 

Part One: Impacts on Prison Populations - William Sabol 

September 12, 2019 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Jailed for unpaid fines almost a decade after being imprisoned for years for $31 pot sale

This new Washington Post article reminded me of a name and an ugly case from nearly a decade ago.  As the article explains, the matter has not gotten any less depressing.  The headline provides the essentials: "She got 12 years for $31 of pot. Years after her parole, she was jailed for the unpaid court fees."  Here are the dispiriting details:

Sitting in her jail cell this week, Patricia Spottedcrow couldn’t imagine where she was going to get the money she needed for her release.  In 2010, the young Oklahoma mother, who had been caught selling $31 worth of marijuana to a police informant after financial troubles caused her to lose her home, was sentenced to 12 years in prison.  It was her first-ever offense, and the lengthy sentence drew national attention, sparking a movement that led to her early release.

But once she was home free, Spottedcrow still owed thousands in court fees that she struggled to pay, since her felony conviction made it difficult to find a job.  Notices about overdue payments piled up, with late fees accumulating on top of the original fines.  On Monday, the 34-year-old was arrested on a bench warrant that required her to stay in jail until she could come up with $1,139.90 in overdue fees, which she didn’t have. Nearly a decade after her initial arrest, she was still ensnarled in the criminal justice system, and had no idea when she would see her kids again....

Back in 2011, Spottedcrow became an unwitting poster child for criminal justice reform when the Tulsa World featured her in a series about women incarcerated in Oklahoma. Then 25, she had just entered prison for the first time, and didn’t expect to be reunited with her young children until they were teenagers.

At the time of her arrest, Spottedcrow was unemployed and without a permanent home, the paper reported. She was staying at her mother’s house in the small town of Kingfisher, Okla., when a police informant showed up and bought an $11 bag of marijuana.  Two weeks later, he returned to buy another $20 worth of the drug from Spottedcrow.  Both mother and daughter were charged with distribution of a controlled substance, and, because Spottedcrow’s children were at home when the transaction took place, possession of a dangerous substance in the presence of a minor....

The two women both were offered plea deals that would have netted them only two years in prison, the World reported, but Spottedcrow didn’t want her 50-year-old mother, who has health issues, incarcerated.  Because neither had a prior criminal record and they had sold only a small amount of pot, they took their chances and pleaded guilty without negotiating a sentencing agreement, assuming they would be granted probation.

Instead, the judge sentenced Spottedcrow to 10 years in prison for the distribution charge, plus another two years for possession. Her mother received a 30-year suspended sentence so that she could take care of the children.  Kingfisher County Associate District Judge Susie Pritchett, who retired not long afterward, told the World she thought the sentence was lenient.  The mother-daughter pair had been behind “an extensive operation,” she claimed, adding, “It was a way of life for them.”

Spottedcrow said that wasn’t true.  “I’ve never been in trouble, and this is a real eye-opener,” she told the paper at the start of her prison stint.  “My lifestyle is not like this. I’m not coming back. I’m going to get out of here, be with my kids and live my life.”

After the World’s story published in 2011, supporters rallied around Spottedcrow’s cause, urging officials to reconsider her punishment.  At the time, Oklahoma had the highest per capita rate of female incarceration in the country, a title it continues to hold today.  Advocates contended that lengthy sentences like hers were part of the problem, and questioned whether racial bias could have played a role — Spottedcrow is part Native American and part African American.

That same year, a different judge reviewed Spottedcrow’s sentence and agreed to shave off four years.  Then, in 2012, then-Gov. Mary Fallin (R) approved her parole.  Spottedcrow got home in time to surprise her kids when they stepped off the school bus.  The American Civil Liberties Union described her release as a “bittersweet victory,” noting that serving only two years of a 12-year sentence was highly unusual, but the penalty that she received for a first-time, nonviolent drug offense wasn’t out of the ordinary for Oklahoma.

It also wasn’t the end of her troubles.  In 2017, five years after Spottedcrow was released from prison, Ginnie Graham, a columnist for the World, checked into see how she was doing.  The picture that she painted was dispiriting: Spottedcrow’s growing family was living in a motel off the interstate because having a felony drug conviction on her record made it virtually impossible for her to find housing, and she hadn’t been able to find work, either. “I’ve never had Section 8 or HUD, but I need it now,” she said. “I even called my (Cheyenne and Arapahoe) tribe to help, and they didn’t. I called the shelters, and they don’t take large families.”

That same year, at a forum on criminal justice reform, Spottedcrow explained that she couldn’t go back to working in nursing homes like she had done before her arrest because of her felony conviction.  And in a small town like Kingfisher, every other potential employer already knew about her legal woes....

While Spottedcrow struggled to care for her six children, the Kingfisher County Court Clerk’s Office mailed out more than a dozen notices saying she had fallen behind on her payments.  Each letter meant that the court had tacked on another $10 fine, and that another $80 would be added on top of that if the office didn’t get the money within 10 days.  When Spottedcrow first reported to prison, she owed $2,740 in fines.  After her release, she made payments at least every other month according to the World.  But it barely made an impact on her ballooning debt: When she was arrested this week, she owed $3,569.76....

Spottedcrow’s new arrest on Monday brought renewed attention to her nearly decade-old court case. KFOR morning news anchor Ali Meyer, who detailed the saga in a widely shared Twitter thread, noted that cannabis has been a booming industry in Oklahoma ever since the state legalized medical marijuana in 2018, and left it up to doctors to determine who qualified.

On Tuesday afternoon, Meyer posted the number for the Kingfisher County Court Clerk’s Office, which would allow anyone to make payments on Spottedcrow’s behalf.  By Wednesday, seven anonymous supporters had covered not just the $1,139.90 that she needed to get out of jail, but her entire $3,569.76 outstanding balance, the station reported.

Somewhere, Franz Kafka is smiling.

Prior posts on Spottedcrow's case:

September 12, 2019 in Examples of "over-punishment", Offense Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (2)

September 11, 2019

"Violent Crime and Punitiveness: An Empirical Study of Public Opinion"

The title of this post is the title of this new paper now available via SSRN authored by Michael M. O'Hear and Darren Wheelock. Here is its abstract:

Evidence suggests that the public favors tough punishment for individuals who have been convicted of violent crimes, but why?  In order to better understand the factors that contribute to punitive attitudes toward violent crime, or “V-punitiveness,” we analyze data from a recent survey of Wisconsin voters as a part of the Marquette Law School Poll.  In sum, respondents generally supported prison terms for individuals convicted of violent crime, but this support was not unwavering and unconditional.  While analysis of these data identified several variables that correspond with higher levels of V-punitiveness, neither fear of violent crime nor personal experiences were among them.  Instead, V-punitiveness seems more closely tied to broader sets of social beliefs regarding individual responsibility, traditional values, and the like.

Our results suggest that tough responses to violent crime may be supported more for expressive than instrumental reasons.  Thus, efforts to change public policy in this area may need to contend with expressive considerations.  If reformers wish to change minds about legal responses to violent crime, instrumental arguments based simply on “what works” in reducing violent recidivism may come up short.

September 11, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases

This Wall Street Journal piece, headlined "Weighing the Sentencing of Parents in the College-Admissions Cheating Scheme," effectively covers the high-profile hearing yesterday that focused on whether defendants in the college admission scandal cases have produced "loss" in the technical parlance of the guideline sentencing world.  Here are excerpts:

A federal judge prolonged the suspense Tuesday over whether parents who have admitted to cheating to get their children into college will serve time in jail, deciding not to rule following a hearing on sentencing guidelines.

In a packed courtroom, U.S. District Judge Indira Talwani heard arguments in a legal debate that has pitted federal authorities against one another in the high-profile college admissions case.

Federal probation officials have pegged sentencing guidelines for the parents at zero to six months — a range often resulting in probation — finding there was no direct financial loss to any victims. Prosecutors are arguing that some prison time is the way to send a strong message that admission spots at prestigious U.S. universities can’t be bought and have proposed ways of calculating loss.

The government is asking for one to 15 months of imprisonment for the 11 parents set to be sentenced in the coming weeks, including actress Felicity Huffman on Friday. “This was a massive nationwide fraud case fueled through bribery, fraud and corruption,” Assistant U.S. Attorney Eric Rosen told the judge....

In a sign of what’s at stake — prison time or none — defense lawyers for the 15 parents who have pleaded guilty and for the 19 who haven’t admitted guilt filled the gallery of Courtroom Nine, spilling into the empty jury box. Other lawyers dialed into a conference line, though none spoke during the hearing.

A more lenient ruling by the judge could prompt more parents to plead guilty, defense lawyers said, while others might decide to try to clear their names at trial, figuring a light punishment is the worst outcome.

Judge Talwani gave no clear sign of how she’ll rule, but she didn’t reschedule Ms. Huffman’s sentencing currently on the calendar for Friday, suggesting a decision could come soon. She asked a series of often technical questions and indicated that a public airing of the legal dispute was a good thing.

Tuesday’s hearing represented a public clash that has dogged the largest college-admissions scandal ever prosecuted by the Justice Department: Who are the financial victims, and how should the length of any prison terms be decided?

Determining appropriate punishments is complex. Sentencing in federal fraud cases are typically calculated based on direct financial impact, either as loss for the victim or gain for the perpetrator. In plea agreements, the government considered the amounts parents paid to admitted scheme mastermind William “Rick” Singer as a proxy for loss, while also taking into account factors such as how actively parents participated or involved their children.

That means prosecutors are recommending one month of incarceration for Ms. Huffman, a sentence at the low end of the zero-to-six-month range. The “Desperate Housewives” and “American Crime” actress has admitted to paying Mr. Singer $15,000 to fix her daughter’s SAT score. But they are asking for substantially more prison time for some other parents, based on the amounts they admitted to shelling out to Mr. Singer.

Prosecutors say victims include the affected colleges, including the University of Southern California and Georgetown University, and standardized testing agencies. Colleges have been sued, have had to revamp policies and conduct costly internal investigations, they said. “All these events I talked about cost money,” Mr. Rosen said. “Money that came out of the victims’ pockets.”

Probation officials, who prepare influential sentencing recommendations for the court, have so far found that the parents’ conduct caused no clear pecuniary harm, according to a recent memo filed by Mr. Rosen.  In a filing Monday, the lawyer for one parent who has pleaded guilty called the losses alleged by the government either nonexistent or speculative.

I suggest in the title of this post that a ruling on this "loss" matter might not be too consequential for a couple of reasons: (1) for certain defendants, the loss determination may not considerably alter the applicable guideline sentencing range, and (2) Judge Talwani can surely justify above- or below-guidelines sentences in these cases on any number of reasonable 3553(a) sentencing grounds no matter what the final calculated range.  That said, all federal sentencing practitioners know that calculated guidelines ranges still have an important anchoring effect on the work of judges, and so it is not at all surprising that a whole lot of defense lawyers are interested in not losing this "loss" matter.

Prior related posts:

September 11, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death?

As reported in this post from February, Ohio Gov Mike DeWine put a long list of scheduled executions on hold after a lower court had ruled that "it is certain or very likely" that the state's reliance on the drug midazolam in its eceuction protocol "cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride."  Ironically, the Ohio death row defendant, Warren Keith Henness, appealed the district court's decision because it ultimately denied his request for a stay of execution. 

That appeal has not been resolved by  a Sixth Circuit panel in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), and the panel opinion seem almost to be urging Ohio to get it machinery of death up and running again.  Here are extended excepts providing context for, and content from, this short ruling:

In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the merits of an Eighth Amendment challenge to a state’s method of execution, the plaintiff must: (1) show that the intended method of execution is “sure or very likely to cause serious illness and needless suffering,” and (2) “identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. at 2737 (citations, brackets, internal quotations, and original emphasis omitted).

Applying this framework, the district court found that Henness met his burden on Glossip’s first prong but failed to propose a viable alternative method of execution as required by the second. We review each prong separately....

We disagree [with the district court's conclusion on the first Glossip prong].  As an initial matter, neither pulmonary edema nor the symptoms associated with it qualify as the type of serious pain prohibited by the Eighth Amendment.  Consider: midazolam may cause Henness to suffocate.  But the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.”  Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (citations and internal quotation marks omitted). Consistent with this understanding, the Supreme Court recently reasoned that the fact that an inmate sentenced to death by hanging might slowly suffocate to death is not constitutionally problematic.  Id.  Because suffocation does not qualify as “severe pain and needless suffering,” it follows that Ohio’s use of midazolam — which could cause pulmonary edema, i.e., suffocation — is not constitutionally inappropriate.  The district court therefore clearly erred in concluding to the contrary.

Further, the district court erred in finding that Henness met his burden of proving that midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing — at a constitutionally problematic level — the pain caused by the combination of the paralytic agent and potassium chloride.  Indeed, though we have concluded that the combination of those two substances “would cause severe pain to a person who is fully conscious,” we have also recognized that midazolam is capable of altering an inmate’s ability to subjectively experience pain.  See Fears, 860 F.3d at 886, 888 (noting that “experts . . . agree[] that midazolam is sometimes used alone for intubation”). That said, the relevant inquiry is whether an inmate injected with 500 milligrams of midazolam would subjectively experience unconstitutionally severe pain — an inquiry that Henness has failed to prove should be answered in his favor.  To be sure, the bulk of Henness’s evidence focuses on the fact that midazolam is incapable of rendering an inmate insensate to pain.  But “the Eighth Amendment does not guarantee a prisoner a painless death,” so it is immaterial whether the inmate will experience some pain — as noted, the question is whether the level of pain the inmate subjectively experiences is constitutionally excessive.  See Bucklew, 139 S. Ct. at 1124.  And the fact that midazolam may not prevent an inmate from experiencing pain is irrelevant to whether the pain the inmate might experience is unconstitutional. Without evidence showing that a person deeply sedated by a 500 milligram dose of midazolam is still “sure or very likely” to experience an unconstitutionally high level of pain, Henness has not met his burden on this prong, and the district court clearly erred in concluding otherwise....

But even if we were to agree with Henness that Ohio’s method of execution is very likely to cause either of the types of severe pain identified by Henness and the district court, we would still find that Henness has failed to carry his burden under Glossip’s second prong.  This is because Henness’s proposed alternative method — death by secobarbital — is not a viable alternative.  As an initial matter, the record demonstrates that death by secobarbital is not “feasible” because secobarbital can, in some instances, take days to cause death and Henness has failed to propose any procedures detailing how an execution team might deal with such a prolonged execution.  Setting that deficiency aside, Henness’s proposal still fails.  As the Supreme Court recently explained, a state may decline to utilize an alternative method of execution — even if it is otherwise feasible and capable of being readily implemented — so long as the state has a legitimate reason for doing so, and “choosing not to be the first [state] to experiment with a new method of execution is a legitimate reason to reject it.” Bucklew, 139 S. Ct. at 1128-30 (internal quotation marks omitted).  It follows that, because no other state uses secobarbital to carry out an execution, Ohio may decline to implement it.

As a final point, we note that Henness’s last-minute motion to dismiss on mootness and ripeness grounds is without merit. Contrary to his contentions, Ohio has said that it intends to resume executions with this protocol if we approve. See, e.g., Andrew J. Tobias, Gov. Mike DeWine Freezes All Ohio Executions While New Method Developed, Cleveland.com (February 19, 2019), https://perma.cc/2HUL-HBUG (last accessed August 9, 2019). Thus, his challenge is not moot.  And his challenge is ripe — notwithstanding the fact that his execution has been delayed.

In other words, it seems that the Sixth Circuit panel here clearly credits the death row defendant's contention that Ohio's use of midazolam in its lethal injection protocol "may cause Henness to suffocate" and seems to credit the claim that he "will experience some pain."  But, according to the panel, it is fully constitution circa 2019 for the state to opt to "slowly suffocate to death" a condemned defendant as long as that defendant is not "sure or very likely to experience an unconstitutionally high level of pain."  

I am certain that the defendant here will now appeal this matter to the en banc Sixth Circuit and also the Supreme Court, but I will be surprised if this appeal gets heard in full again.  (I will predict here that at least a few Sixth Circuit judges will dissent if and when the full circuit does not take up the case.)  Consequently, I think the fate of Warren Keith Henness and a long list of condemned with execution dates in Ohio now turns on what whether and when Governor DeWine is prepared to order the state's machinery of death to become operational again.

A few (of many) prior recent related posts:

September 11, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Texas completes execution of murderer less than a decade after deadly crime spree

Texas is in the midst of what might be called an execution surge: last night the state completed its third execution in the last month and it has nine more execution scheduled before the end of this year.  This local piece reports on the latest execution, and here are the basics:

On Tuesday, Texas executed Mark Soliz for the 2010 home robbery and shooting death of a North Texas woman.... Soliz, 37, was convicted and sentenced to death in 2012 for the murder of Nancy Weatherly, 61, and the robbery of her Johnson County home, according to court records.  Prosecutors said the murder was part of an eight-day crime spree during which Soliz and another man, Jose Ramos, robbed random people at gunpoint, and Soliz killed another man.

Soliz and his lawyers had long argued that his life should be spared because he had fetal alcohol spectrum disorder, which they claimed is the “functional equivalent” of an intellectual disability, a condition the U.S. Supreme Court has ruled disqualifies individuals from execution.  Both state and federal courts rejected the claim during Soliz’s relatively short seven years on death row.

Shortly after 6 p.m. Tuesday, Soliz was taken into the execution chamber in Huntsville and placed on a gurney.  Soliz was apologetic in his final words, addressing Weatherly's family members. "I wanted to apologize for the grief and the pain that I caused y’all," Soliz said. "I’ve been considering changing my life.  It took me 27 years to do so.  Man, I want to apologize, I don’t know if me passing will bring y’all comfort for the pain and suffering I caused y’all. I am at peace."

He was then injected with a lethal dose of pentobarbital, the only drug used in Texas executions.  He was pronounced dead at 6:32 p.m.

In June 2010, prosecutors said, Soliz and Ramos terrorized residents in the Fort Worth area for eight days before they were arrested on suspicion of one of several crimes, including multiple robberies, carjackings and shootings, another of which was fatal. When police interrogated Ramos about one stolen car, he began talking about another crime — in which he said the two men forced their way into Weatherly’s house in Godley at gunpoint, and Soliz shot her in the back of the head as they robbed her home....

At his trial and in his appeals to state and federal courts, Soliz repeatedly raised the claim that he should not have been executed because of his disorder.  Several defense experts testified before the jury that he was diagnosed with partial fetal alcohol syndrome, which his lawyers claim caused mental impairments like lack of impulse control, serious adaptive learning deficits and hyper-suggestibility.  But the testimony did not keep the jury from handing down a death sentence, and appellate courts did not interfere, partially because the claim was raised at trial and failed....

Texas’ six executions so far this year make up more than a third of the 15 that have taken place in the country.  Of the 17 executions still scheduled in the country through December — including three federal cases — nine are set to take place in the Texas death chamber in Huntsville, according to the Death Penalty Information Center.  Last year, Texas executed 13 men.

September 11, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

September 10, 2019

Previewing another dynamic SCOTUS criminal justice docket

Though we are still nearly a month away from the first Monday in October, it is not too early to start gearing up for what may be another dynamic and interesting Supreme Court Term for criminal justice fans.  Wonderfully, Rory Little has already put together this lengthy preview post at SCOTUSblog under the heading "Overview of the court’s criminal docket for OT 19 — sizeable and significant."  I highly recommend Rory's post in full, and I can excerpt here his intro and conclusion along with a few sentencing-related highlights (with links from the original):

The Supreme Court has already granted review in 50 cases for the term that opens on Monday, October 7.  More will be granted when the court returns for its “long conference” (following the summer recess) on October 1.  By my broad definition (which includes immigration and civil-related-to-criminal cases), 20 of the 50 cases already granted (40%) involve criminal-law or related issues. After consolidations, this represents 16 hours of argument — and 10 of those hours will occur in the first two months.  From this end of the telescope, the cases look important, and a few will certainly have broad impact.

Monday, October 7, will open with two very significant criminal-case arguments, one before and one after lunch (with a patent case sandwiched in the middle).

First, the justices will consider whether a state may (as Kansas has) constitutionally eliminate any defense of insanity to criminal charges.  This presents both due process and Eighth Amendment questions, and involves intricate mental gymnastics regarding the difference(s) between insanity and a permissible defense of lacking criminal mens rea....  After lunch, the court will address the likely far easier question whether the “unanimous verdict” requirement for criminal jury trials under the Sixth Amendment necessarily applies to all the states under the 14th Amendment’s incorporation doctrine....

On October 16, in Mathena v. Malvo, the court will consider the life-without-parole (LWOP) sentence imposed on the juvenile “D.C. sniper,” Lee Malvo, who with an adult partner (since executed) shot and killed 10 people in the Washington, D.C., area in 2002.  The constitutionality of LWOP sentences for juveniles under the Eighth Amendment has bedeviled the court twice previously: Such sentences have been declared unconstitutional when mandatory, but not when discretionary.  This case will examine what exactly that means.  The year-old retirement of Justice Anthony Kennedy, who authored the most recent decision on the issue, makes the outcome difficult to predict....

[A]t least one death-penalty case is almost always on the court’s annual docket.  OT 19 is no exception. In McKinney v. Arizona the justices will address questions revolving around the use and evaluation of mitigating evidence in capital cases....

In Shular v. United States, the justices will once again confront the much-critiqued “categorical approach” to evaluating which state offenses count as predicates for enhanced federal sentencing.

Somewhat refreshingly, the court granted review on a typewritten pro se prisoner petition for certiorari in Banister v. Davis, a habeas case.  Once the court requested a response from Texas, Banister enlisted a former assistant solicitor general and clerk to Justice Sonia Sotomayor to represent him, and the case, although dry, will be significant to the habeas bar....

The Supreme Court’s docket is a bit of an optical illusion: it always looks very different at the start from the way it is perceived by the following July.  Big cases argued in October are decided by early spring and by then are overshadowed by new grants of review, which we now perceive, “if foreseen at all, … dimly.” So stay tuned.  The sense of imminence and uncertainty is one reason the court and its machinations provide such an irresistible attraction!

September 10, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"A Fair Fight: Achieving Indigent Defense Resource Parity"

DefenderParityCoverThe title of this post is the title of this notable new report authored by Bryan Furst, who serves as counsel and the George A. Katz Fellow with the Brennan Center's Justice Program. Here are excerpts from the report's start:

Many of the issues that affect our criminal justice system today — overly long sentences, racial bias, wrongful convictions — are exacerbated by overwhelmed indigent defense systems.  In this moment of bipartisan support for reform, creating resource parity between prosecutors and indigent defenders could help achieve transformative change and lend needed credibility to our criminal justice system....

A functioning adversarial legal system requires two adequately resourced opposing sides.  But American prosecutors, while sometimes under-resourced themselves, are the most powerful actors in the U.S. legal system.  In addition to better funding, there are numerous structural advantages a prosecutor holds that worsen the resource disparity.  For example, harsh mandatory minimums and widespread pretrial incarceration create conditions in which people have essentially no choice but to accept whatever plea deal the prosecutor offers.

Historically, improving the resource disparity for defenders has been politically difficult because of the cost and the fear of looking “soft on crime.”  This might not be as true today, when 71 percent of voters think it is important to reduce the prison population and 66 percent support the use of government tax dollars to provide indigent defense.

In addition, the fiscal costs of indigent defense reform are not nearly as high when one accounts for the savings it can bring.  Issues exacerbated by defender resource disparity — pretrial incarceration, overly long sentences, wrongful convictions — are extremely expensive.  The Prison Policy Initiative estimates that the United States spends $80.7 billion on corrections each year, while pretrial detention alone costs $13.6 billion.  From 1991 to 2016, Texas paid out over $93 million to wrongfully convicted people.

Providing better indigent defense does not always mean spending more money.  State indigent defense systems are often structured in extremely inefficient ways that cost states more than necessary and lead to worse outcomes for people accused of crimes.  Restructuring for those jurisdictions may require an up-front investment but can lead to savings in the long term.

At the heart of defender resource disparity is the chronic underfunding of indigent defense — a phenomenon that is widespread and well-documented.  But fixing the problem will require more than simply increasing funding, and the question demands thinking broadly about the many issues that drive it.  This report identifies five key challenges that contribute to defender resource disparity:

  • Improperly structured indigent defense systems
  • Unsustainable workloads
  • Defender-prosecutor salary disparity
  • Insufficient support staff
  • Disparate federal funding as compared to law enforcement

Many of the solutions presented in this analysis will improve resource parity, requiring increased up-front spending.  Some will produce savings in the long term through cost sharing between indigent defense offices or reduced levels of incarceration, while others, such as mandating open discovery, will cost almost nothing to implement.

This analysis identifies various characteristics of the justice systems that contribute to defender resource disparity and presents solutions to move toward parity.  It seeks to build upon and elevate the work of many others in the multi-decade effort to realize the right to counsel in this country — one of many necessary reforms required to dismantle the systems of mass incarceration.

September 10, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

BJS releases "Criminal Victimization, 2018" reporting increase in violent victimization and decrease in property crime victimization

The federal government collects and reports on crime data in two essential ways: though the uniform crime reporting system run by the FBI (details and publications here) as well as through the Bureau of Justice Statistics' National Crime Victimization Survey. The latest crime data from BJS appear in this new publication titled simply "Criminal Victimization, 2018." Along with this full report, BJS has provided some data highlights via a Press Release and a Summary, and here are excerpts from the one-page summary:

The longstanding general trend of declining violent crime in the United States, which began in the 1990s, has reversed direction in recent years, based on findings from the National Crime Victimization Survey (NCVS), one of two major sources of crime statistics in the United States. Meanwhile, the long-term decline in property crime has continued in recent years.

After declining 62% from 1994 to 2015 (the most recent year in which a 1-year decline was observed), the number of violent-crime victims increased from 2015 to 2016, and again from 2016 to 2018. Among U.S. residents age 12 or older, the number of violent-crime victims rose from 2.7 million in 2015 to 3.3 million in 2018, an increase of 604,000 victims. This overall rise was driven by increases in the number of victims of rape or sexual assault, aggravated assault, and simple assault.

From 2015 to 2018, the portion of U.S. residents age 12 or older who were victims of violent crime increased from 0.98% to 1.18% (up 20%) (see figure).  Over that span, the portion of white persons age 12 or older who were victims of violent crime increased from 0.96% to 1.19% (up 24%), the portion of males who were victims rose from 0.94% to 1.21% (up 29%), and the portion of females who were victims rose from 1.03% to 1.16% (up 13%).....

There was no statistically significant 1-year change in the number of violent-crime victims age 12 or older from 2017 to 2018; however, the number of violent incidents (the number of specific criminal acts involving a victim) rose from 5.2 million to 6.0 million.  Based on the 2018 survey, the offender was of the same race or ethnicity as the victim in 70% of violent incidents involving black victims, 62% of those involving white victims, 45% of those involving Hispanic victims, and 24% of those involving Asian victims....

While violent crime rose in recent years, property crime fell, as the portion of households that were victims of property crime fell from 7.99% in 2014 to 7.27% in 2018, while the portion that were victims of burglary dropped from 1.27% to 1.07%.

September 10, 2019 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

September 9, 2019

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

September 9, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal

Late Friday night, sentencing memoranda were filed in the run up to highest-profile scheduled sentencings of a number of the parents involved in the college bribery scandal.  This ABC News report overviews the basics:

Federal prosecutors are recommending some period of incarceration for the parents in the college admissions scandal.... The government's sentencing memorandum refers to the college admissions scandal as "a kind of Rorschach test for middle class angst about college admissions." The government says some period of incarceration is the only meaningful sanction for these crimes.

Court documents showed prosecutors recommended jail time ranging from one month to 15 months for the defendants named in the memo.  Of the local parents who pleaded guilty to conspiracy to commit mail fraud and honest services mail fraud, Napa Vinyard Owner Agustin Huneeus is facing the longest sentencing recommendation at 15 months. Huneeus paid Rick Singer $300,000 participate in both the college entrance exam cheating scheme and the college recruitment scheme for his daughter.

Next is Marjorie Klapper of Menlo Park with a recommended sentence of four months. Klapper paid Singer $15,000 to participate in the college entrance exam cheating scheme for her son. Peter Sartorio of Menlo Park is facing a recommendation of just one month.  Sartorio agreed to pay Singer $15,000 to participate in the college entrance exam cheating scheme for his daughter.  Actress Felicity Huffman is also facing a one-month recommended sentence. 

The government says they considered the amount of the bribe, whether someone was a repeat player, an active or passive participant in the scheme and whether or not they involved their children.

I had been hoping that the US Attorney's Office in Massachusetts, which has this useful webpage with indictments, plea agreements and other documents publicly available, would also post the government's full sentencing memorandum. So far, all that is posted is a listing of the "Government Sentencing Recommendation" in each case. 

Of course, the defendant receiving the most attention in the press is actress Felicity Huffman, and here is a partial round-up of stories focused on the sentencing recommendations in her case and related matters:

Prior related posts:

September 9, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Senator Kamala Harris releases her plan "to fundamentally transform our criminal justice system"

Via this lengthy new section of her campaign website, Senator Kamala Harris has now joined the ranks of the most prominent candidates for the 2020 Democratic Presidential nomination, in particular Joe BidenCory BookerPete Buttigeig, Bernie Sanders and Elizabeth Warren, by releasing a detailed agenda for criminal justice reform.  As is always the case, the full plan set forth by Senator Harris, which is titled "Kamala’s Plan To Transform The Criminal Justice System And Re-Envision Public Safety In America," merits a full read.  In this space I can only flag the introduction and a few notable sentencing elements (with formatting and links not preserved):

Reforming our criminal justice system is as complex and pressing an endeavor as any other in our lifetime. It is the civil rights issue of our time, and there is perhaps no one more uniquely suited to taking on this issue than Kamala Harris....

At its best, the system serves to hold serious wrongdoers accountable and achieve justice for crime survivors, while helping to build safer and healthier communities.  At its worst, decades of failed policies have created an unjust, unequal, and vastly expansive system that disproportionately harms communities of color and criminalizes individuals just because they are poor. It is long past time to re-envision public safety by strengthening and supporting our communities and drastically limiting the number of people we expose to our criminal justice system.  As president, Kamala will fundamentally transform how we approach public safety....

As president, there are four main levers that Kamala can exercise to change criminal justice policy.  She can: (1) work with Congress and use her executive authority to change law and policy on the federal level; (2) investigate state and local actors through the Justice Department’s Civil Rights Division; (3) empower and incentivize behavior on the state and local level through federal funding; and (4) use her voice as president to advocate for change. And as president, Kamala will exercise every one of these levers to increase public safety, reduce our outsized criminal justice system, and make it fairer and more equitable for all....

End Mass Incarceration and Invest Resources into Evidence and Community-Based Programs that Reduce Crime and Help Build Safe and Healthy Communities

Ending Mass Incarceration. ... Make significant federal investments in policies that would end mass incarceration and especially into evidence-based, non-carceral social supports and programs at the state and local level to improve public safety and reduce violence.  This includes investing in jobs and job training, housing, transportation, food security, education, medical and mental health care, including trauma recovery.

End the “War on Drugs” – One-fifth of the incarcerated population – or 456,000 people – is serving time for a drug charge while another 1.15 million are on probation and parole for drug-related offenses. This is especially the case on the federal level, where nearly half of the prison population are there for drug crimes. So it is past time to end the failed war on drugs, and it begins with legalizing marijuana. Marijuana arrests account for over 50% of all drug arrests. Of the 8.2 million marijuana arrests between 2001 and 2010, 88% were for simple marijuana possession. Worse, despite roughly equal usage rates, Black people are about four times more likely than White people to be arrested for marijuana. Black Americans also make up nearly 30% of all drug-related arrests, despite accounting for only 12.5% of substance users.

Legalizing marijuana. Support states in legalizing marijuana; legalize marijuana on the federal level, expunge convictions, and reinvest in the community....

Sentencing Reforms. Significant reforms must be made with respect to the criminal justice system’s sentencing schemes, including:

  • End mandatory minimums on federal level and incentivize states to do the same.  As a Senator, Kamala is a cosponsor of the Justice Safety Valve Act, which would eliminate all mandatory minimums by letting judges issue sentences below the mandatory minimum.
  • Reform clemency process to form clemency/sentencing review units and significantly increase use of clemency. The clemency process needs to be removed from the Department of Justice where there are inherent conflicts of interest. Specifically, DOJ should not determine whether individuals convicted by their own colleagues should be shortened or commuted.
  • For those who have been sentenced to long prison terms (i.e., 20 years or more), the sentencing review unit would provide for an assessment as to whether it is appropriate and serves the interests of justice for the incarcerated individual to be released or have their sentence shortened after having served 10 years.
  • End federal crack and powder cocaine disparity (reduce from 18:1 to 1:1).

National Criminal Justice Commission. The last time this nation seriously examined the criminal justice system was in 1967 when President Lyndon Johnson created the Katzenbach Commission.  That commission was fueled largely by people’s concern about crime. It’s time for a new national criminal justice commission, fueled by bipartisan support for major criminal justice reforms.  Kamala would form a commission with diverse stakeholders, whose goals would include studying the federal and state criminal justice systems, and providing recommendations within one year.  Her administration would then take action based on those recommendations.  In its 360 degree assessment of the system, pressing issues that need to be addressed include (but are not limited to):

  • Studying individuals incarcerated for violent offenses to provide recommendations via evidence-based findings. Politicians often talk about ending mass incarceration. However, one cannot truly reform the system without studying the effects of how best to hold individuals convicted of violent offenses accountable. While a significant part of the federal system involves those convicted of nonviolent drug offenses, at the state level, more than half of those convicted are there for violent offenses. Moreover, studies show that merely imposing excessively long sentences does not improve results of preventing individuals from re-offending. So what are the best ways to hold violent offenders accountable and prevent re-offending? The commission would study this issue and provide recommendations based on evidence-based findings.
  • Redefining the metrics and data we use to measure success in our criminal justice system. People in the system use terminology such as “recidivism” even though there is no good definition of what that means. And people use data such as rearrests, when that is not an accurate measure of “recidivism” and perpetuates racial disparities, as communities of color are often more heavily policed. Our system needs to have a shared set of metrics and data collection that accurately measures what success means and informs our policymaking.

Reform community supervision.

  • Invest money in states to shorten the length of probation and other forms of community supervision where appropriate and where it serves the interests of justice;
  • Invest money in states to end jail time for technical violations of community-based supervision (reforming parole).

End the use of private prisons. Less than 10 percent of our prison population is held in private facilities, but it is nevertheless still necessary to end the profit motive that drives these private prisons, as it is inhumane to profit off of imprisonment and allow a system that continues to create incentives that are contrary to the goal of helping people rehabilitate themselves and return to the community. Kamala also believes we must end private detention centers for undocumented immigrants....

Invest money in states/localities to end juvenile incarceration in favor of restorative justice programs and wrap-around services, except for the most serious crimes.

End life sentences of children and offer opportunities for sentence reduction to young people convicted of crimes.

  • For example, fight to end de facto life without parole sentences by allowing youth sentenced to more than 20 years in prison for crimes committed before their 18th birthday to petition the original sentencing court for review of their sentence after they have served 10 years.
  • End the transfer of children to adult prisons;
  • End solitary confinement for children;

Make significant federal investment for innovative Back-on-Track programs that provide in-custody and out-of-custody education and comprehensive services to individuals convicted of crimes to reduce recidivism by equipping them with the tools they need to reenter society successfully.

Education, job training, and treatment. Mandate that federal prisons provide educational and vocational training, and mental health and addiction treatment in custody, including diagnosis and treatment of trauma. 

Reentry educational course. Mandate federal prisons to provide a reentry educational course that provides, among other things, information on acquiring identification and their options with respect to housing, education, treatment, and other assistance programs. Invest federal money into this program and incentivize states to provide the same reentry educational course.

Create an advisory board of directly impacted individuals to make recommendations for successful re-entry.

Expungement & Sealing

  • Automatic expungement and sealing of offenses that are not serious or violent after 5 years
  • Ban the box, i.e., remove questions about an individual’s conviction histories until after conditional offers have been made. Individuals reentering society should have a meaningful opportunity to obtain a job and reintegrate into the community.
  • Restore voting rights for all who have served their sentence.
  • End federal bans on formerly-incarcerated individuals (as well as those arrested and not incarcerated) access to public housing, student loans, SNAP, and professional work licenses....

Prosecutorial Accountability Provide explicit authority to the U.S Department of Justice to conduct pattern and practice investigations of prosecutorial offices that commit systematic misconduct. Invest federal funds in data collection and data analysis for greater transparency and accountability. Require federal prosecutors to provide data on their charging, plea bargaining, and sentencing decisions. Provide funding to incentivize state prosecutors to participate in a national reporting program. Invest federal funds to assess prosecutorial priorities. The FBI invests millions of dollars into developing a threat assessment system that helps them set priorities. The same should be done with prosecutors so that they prioritize cases that do the most to promote public safety and justice.

Support for Public Defenders Support for public defenders to instill greater trust and equity in the justice system. Kamala believes we must support our public defender systems, which are straining to uphold the constitutional right to counsel for indigent defendants as required by the U.S. Supreme Court’s landmark Gideon v. Wainwright decision. Her EQUAL Defense Act would create a $250 million grant program to fund public defenders. To receive grants, states and localities must impose workload limits, achieve pay parity between public defenders and prosecutors within 5 years, and collect data on public defender workloads. Increases funding for public defender training. Increases student loan repayment program. Her legislation has been endorsed by Jon Rapping of Gideon’s Promise.

Humane Treatment of Prisoners

  • End the death penalty. Kamala believes the death penalty is immoral, discriminatory, ineffective, and a gross misuse of taxpayer dollars. As San Francisco District Attorney, Kamala declined to seek the death penalty in the prosecution of an individual accused of killing a police officer, despite facing relentless political pressure to do so. End solitary confinement.
  • End solitary confinement, but ensure alternative therapeutic and rehabilitative mechanisms are available to protect the safety of individuals in prisons and of prison staff.
  • End the profiting off of incarceration. Specifically, prohibit prisons from making a profit from charging exorbitant rates for prisoners for telecommunications and commissary/food and supplies in prison.
  • Keeping Families Intact. Ripping families apart creates lasting harm and undermines the goal of building safer and healthier communities. We should strive to maintain family connections. Make it easier for family to visit prisoners
  • The FIRST STEP Act instituted a requirement to allow for federal prisoners to be placed within 500 miles of their post-release residency where possible. Kamala would reduce that distance even more and invest money in states to do the same. Restore parental rights for returning citizens in a timely manner Dignity for Incarcerated Women Act, which Kamala cosponsors would: Require videoconference access free of charge; Provide parenting classes for prisoners who are primary caretaker parents; and Institute a pilot program to allow overnight visits from family members.

A few of many prior recent related posts:

September 9, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

September 8, 2019

More reason to think Justice Gorsuch might help SCOTUS pioneer criminal justice reforms

Regular readers have seen my regular postings about Justice Neil Gorsuch's notable votes in favor of the claims of federal criminal defendants (some of which I have linked below).  His work to date in criminal cases has me thinking that Justice Gorsuch could be a key vote and important voice helping SCOTUS pioneer many needed criminal justice reforms.  And this new USA Today article, headlined "Supreme Court Justice Neil Gorsuch decries lack of access to justice for many Americans," reinforces my hopefulness in this arena.  Here are excerpts:

Lawyers cost too much. Getting to trial takes too long.  Juries promised by the Constitution are rarely used.  And just try counting all the criminal laws on the books.

Those are among the provocative criticisms made by the Supreme Court's youngest associate justice, Neil Gorsuch, in a USA TODAY interview and his new book, "A Republic, If You Can Keep It."

Gorsuch, 52, is convinced that warning — reportedly issued by Benjamin Franklin after the Constitutional Convention — can be met, and the republic will be preserved. But the problems he observes in the justice system and what he describes as the nation's "crisis in civility" are obstacles he would like to see removed....

The book is, like the justice himself, a study in contrasts.  Folksy and self-deprecating, the court's lone westerner came from Colorado in 2017 with rhetorical guns blazing, amply filling the late conservative Associate Justice Antonin Scalia's seat on the bench.  It took him only two terms to lead his colleagues in dissents.

At the same time, Gorsuch has made peace with the court's liberals, often siding with Associate Justices Sonia Sotomayor and Ruth Bader Ginsburg in defense of the "little guy" being surveilled, accused, tried or convicted of a crime.

Gorsuch doesn't offer solutions for all the problems he identifies in the book.  But he expresses confidence that his judicial methodology — strictly following the words in the Constitution and federal laws rather than his preferred policies — is winning the day.  It's a method decried by many liberals as a means to produce conservative results, to which Gorsuch has a simple reply: "Rubbish!"...

Yet Gorsuch is anything but a go-along-to-get-along guy, as made clear by his expressed desire to fix what ails the nation's justice system.

Most Americans can't afford to hire a lawyer —  "I couldn’t afford my own services when I was in private practice," he writes — nor endure months or years of legal wrangling to reach trial. Too often, he says, defendants are forced to cut a deal with prosecutors or accept a judge's ruling rather than face a jury of their peers.

In a span of seven weeks last term, Gorsuch dissented twice from the court's refusal to hear Sixth Amendment challenges to criminal prosecutions.  One involved evidence he said was not subjected to proper testing and cross-examination.  The other involved a decision on restitution based on findings by a judge, not a jury.  He was joined both times by Sotomayor, perhaps the court's most liberal justice....

Still, Gorsuch has been a reliable member of the court's five-man conservative majority in major cases over the past two terms.  Those include 5-4 decisions upholding Trump's ban on travel from several majority-Muslim nations, barring public employee unions from collecting "fair share" fees from non-members, and removing federal courts from policing even the most extreme partisan election maps.

And when Chief Justice John Roberts joined the court's four liberal justices to deny the Trump administration's effort to add a question on citizenship to the 2020 census, Gorsuch joined the other conservatives in dissent.

During the interview, however, he highlighted cases in which he sided with liberals or when the justices' votes were jumbled beyond ideological explanation.  In most years, he notes, about 40% of cases are decided unanimously.  “Get nine people to agree on where to go to lunch!" he dares his inquisitor.  "It happens through collegiality and hard work and persuasion and thoughtfulness.”

A few prior related posts:

September 8, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Study suggests outdoor community service especially effective at reducing recidivism

The harms of solitary confinement and other extreme form of indoor isolation in correctional settings have been widely documented.  But this recent study, titled "The Effect of Horticultural Community Service Programs on Recidivism" and authored by Megan Holmes and Tina Waliczek, spotlights the potential benefits of outdoor community programming for justice-involved individuals.  Here is it abstract and final paragraph:

The average cost of housing a single inmate in the United States is roughly $31,286 per year, bringing the total average cost states spend on corrections to more than $50 billion per year. Statistics show 1 in every 34 adults in the United States is under some form of correctional supervision; and after 3 years, more than 4 in 10 prisoners return to custody. The purpose of this study was to determine the availability of opportunities for horticultural community service and whether there were differences in incidences of recurrences of offenses/recidivism of offenders completing community service in horticultural vs. nonhorticultural settings.  Data were collected through obtaining offender profile probation revocation reports, agency records, and community service supervision reports for one county in Texas.  The sample included both violent and nonviolent and misdemeanor and felony offenders.  Offenders who completed their community service in horticultural or nonhorticultural outdoor environments showed lower rates of recidivism compared with offenders who completed their community service in nonhorticultural indoor environments and those who had no community service.  Demographic comparisons found no difference in incidence of recidivism in comparisons of offenders based on gender, age, and the environment in which community service was served. In addition, no difference was shown in incidence of recidivism in comparisons based on offenders with misdemeanor vs. felony charges.  The results and information gathered support the continued notion that horticultural activities can play an important role in influencing an offender’s successful reentry into society....

Results of this study found those who completed any type of community service had less incidence of recidivism compared with those completing no community service. Results also found that offenders who completed their community service in horticultural or nonhorticultural outdoor environments showed lower rates of recidivism compared with offenders who completed their community service in nonhorticultural indoor environments and those who had no community service. When possible, community service options should be made available to those on probation or parole and include the opportunity for exposure to nature and the outdoors.  Past research (Latessa and Lowenkamp, 2005) found within correctional facilities that rates of recidivism were not affected from standard institutionalized punishment alone. However, basic adult education programs were an effective and promising method for lowering rates of recidivism among adult offender populations (Cecil et al., 2000).  Therefore, participating in horticultural programs on being released from prison or while on probation for the continuation of vocational and/or cognitive-behavioral training championed with community service could provide a sense of meaning and purpose to the individual, which could prove helpful for a successful transition back into society.  Future studies should investigate further the impact of the role of horticulture in the results of this study by comparing nonhorticultural outdoor, horticultural outdoor, and horticultural indoor activities as community service options in a similar study on the impact of recidivism.

September 8, 2019 in National and State Crime Data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

"Why America Needs to Break Its Addiction to Long Prison Sentences"

The title of this post is the headline of this recent Politico commentary authored by Ben Miller and Daniel Harawa." The piece carries the subheadline "Shorter sentences will end prison crowding and even reduce crime," and here are excerpts:

[A] pressing ... problem in our criminal legal system [is the] lack of meaningful mechanisms in place to allow people in prison to obtain release once they have proven to no longer pose a danger to our communities....  We have forgotten that our justice system is supposed to rehabilitate people, not just punish them....  Though some may point to parole as an option, the potential for release on parole has proven slim, with the federal government and 14 states having eliminated it completely.

For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer.  We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence....

[I]f we want to significantly reduce the number of people this country incarcerates, legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety.  But sending people to prison for long periods does not reduce crime. In fact, longer sentences, if anything, create crime.  David Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities.  As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.”  While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering.  For example, U.S. prisons spend $16 billion per year on elder care alone.  Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, we need to pursue every option that would safely reduce our prison population.  One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison.  Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old.  Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

The opposition to any sentence review policy is predictable.  Opponents will decry the danger of releasing “violent” people into the community.  This criticism is straight out of the failed tough-on-crime playbook that created the country’s mass-incarceration crisis in the first place.  It was this same message that pushed legislators and prosecutors for years to enact and seek extreme sentences that have overburdened prisons across the country.  This criticism rings hollow.

Measures that promote sentence review would not automatically release anyone.  Instead, people would be given a chance to show a court that they are no longer a danger to public safety.  A judge — after weighing all relevant circumstances, including hearing from any victims and their families — would then decide whether a person should be released....

Robust sentence review legislation that would help reduce both our prison population and the strain on government budgets must be part of every discussion about criminal justice reform.  Sister Helen Prejean has often said, “People are worth more than the worst thing they've ever done.”  Our policies should reflect the ability of people to change over the course of years — or decades — of incarceration.

September 8, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)