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September 27, 2019

"Housing and Recidivism: The Critical Link to Reducing Louisiana’s Bulging Prisons"

The title of this post is the title of this new paper by Angela Decoteau recently posted to SSRN. Here is the abstract:

Louisiana has one of the highest incarceration rates in the United States in part because it has a high recidivism rate.  One of the reasons ex-offenders return to jail is that they cannot find adequate housing after serving their time.  As an inexperienced property manager of a mobile home park in rural Louisiana, the author gained an awareness of the re-entry hurdles ex-offenders face, in a most unexpected way.  The park refused any potential resident who had a criminal background.  One day a small unassuming man walked into the office, crumbled criminal background check in hand.  His rejection certain, he nevertheless pulled out a large three-ring binder. “I know I’ve messed up in my life, but I’ve turned it around, and here’s my proof.”  The author sat in silence as he paged through numerous certificates and glowing letters from prison guards, employers, and teachers both during and after his incarceration.  The author was able to secure a waiver of the policy, and he became one of the best tenants the park ever had.

This Article explores housing problems faced by the formerly incarcerated.  It continues with a discussion of the problems faced by property managers in considering ex-offenders’ applications. Louisiana’s antiquated criminal system denies the formally incarcerated any easy means to prove the extent of their rehabilitation.  To further complicate matters, property managers are denied access to the very information they most need to assess applicants’ qualifications.

The Article recommends a three-pronged approach: (1) expand the criminal record to include communication about the ex-offender’s behavior while incarcerated; (2) allow web access to property managers regarding justice of the peace housing judgments; (3) and enact legislative changes that would protect the formerly incarcerated from discrimination.

September 27, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (3)

SCOTUSblog online symposium previews "Bridgegate" political corruption case

Though there are other cases to be argued earlier in the coming Supreme Court Term that are sure to be of interest to sentencing fans, I suspect more than a few folks in the white-collar bar are especially excited for Kelly v. United States, a high-profile political fraud case on the SCOTUS docket this Term.  I know the great folks at SCOTUSblog are focused on this case, as they put together an online symposium this week with a lot of leading white-collar crime voices.  Here are the links, with all recommended reading:

September 27, 2019 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

September 26, 2019

Senators Durbin and Grassley introduce "Prohibiting Punishment of Acquitted Conduct Act of 2019"

I am so very pleased to be able to blog about a new effort to prohibit the ugly practice of using "acquitted conduct" in the federal sentencing system.  Specifically, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, today introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

  • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
  • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Long-time readers know I have been a long-time opponent of federal courts' use of acquitted conduct at sentencing (e.g., here is a post from 11 years ago on the issue, which itself links to more than a half-dozen prior posts on the topic).  I have also been involved in preparing briefs assailing the use of acquitted conduct in a number of circuit courts, and I was especially proud of this amicus brief that I prepared in support of certiorari in the Antwaun Ball case reference above.  So, I am fully supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing.

Thankfully, lots of other folks are also supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing, as revealed by these new policy group postings:

From Americans for Tax Reform, "ATR Joins Coalition Supporting the Prohibition of Punishing Acquitted Conduct"

From the Cato Institute, "Addressing the Gross Injustice of Acquitted Conduct Sentencing"

From FreedomWorks, "Support the Prohibiting Punishment of Acquitted Conduct Act, S. 2566"

From the National Association of Criminal Defense Lawyers, "Nation’s Criminal Defense Bar Lauds Newly Introduced 'Prohibiting Punishment of Acquitted Conduct Act of 2019'"

September 26, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Next parent up in college admission scandal sentencing also gets four months in federal prison

As reported in this Boston Globe piece, a "Los Angeles man who paid $400,000 to get his son into Georgetown as a fake tennis recruit in the college admissions cheating scandal was sentenced Thursday to four months in prison."  Here are some of the details:

Stephen Semprevivo, 53, learned his fate in US District Court in Boston.  He’ll also have to serve two years of supervised release, perform 500 hours of community service, and pay a $100,000 fine, though prosecutors said the court “may offset [Semprevivo’s] fine with restitution to be determined at a later hearing.”

Semprevivo pleaded guilty in May to a sole count of conspiracy to commit mail fraud and honest services mail fraud. “I deserve to be punished,” Semprevivo said Thursday during brief remarks before Judge Indira Talwani sentenced him. “I am fully responsible.”...

The government had sought a 13-month prison term for Semprevivo, a former Cydcor Inc. executive. On Thursday, Assistant US Attorney Kristen A. Kearney reiterated several points contained in the government’s previously filed sentencing memorandum, in which prosecutors said Semprevivo showed “chutzpah” by suing Georgetown after his guilty plea in an effort to block the school from expelling his son.

“He tried to retain the fruits of his fraud,” Kearney said.  “The defendant’s audacity is breathtaking.” The lawsuit was ultimately withdrawn, and Semprevivo’s son was booted from campus.

Kearney also bristled at the contention from Semprevivo’s lawyers that he was a victim of Singer, who they said manipulated their client into participating in the scheme.  “The defendant was no passive wallflower or Singer’s puppet,” Kearney said, noting Semprevivo had his son write an e-mail to then-Georgetown tennis coach Gordon Ernst, telling Ernst he was eager to play for him, when in fact he didn’t play competitive tennis.

Semprevivo, Kearney said, “was not doing what was best for his son” but instead sought the “Holy Grail” of a Georgetown degree: “In other words, bragging rights.”...

David E. Kenner, a lawyer for Semprevivo, said during Thursday’s hearing that his client feels “great shame and terrible remorse” for bringing his son into the fraud.  At one point, Kenner said the case didn’t involve “an African-American tennis player” getting replaced by a “white tennis player,” which seemed to puzzle Talwani, who said she wasn’t sure why Kenner brought up race.  Ultimately, Talwani said, “one student [Semprevivo’s son] got an offer letter” to attend Georgetown “instead of a different student.”

Kenner conceded the point, telling Talwani that Semprevivo’s crime wasn’t “victimless,” citing “the people who didn’t get the spot that Mr. Semprevivo’s son got.”  Talwani told Semprevivo from the bench, “I don’t criticize you for being taken in” by Singer, who offered parents a so-called side door to get their children into elite schools via bribery. However, Talwani asked, “What makes your children entitled to a side door?”

She said she believes that Semprevivo is remorseful and ordered him to surrender to authorities on Nov. 7.

Prior related posts:

September 26, 2019 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (0)

Thoughtful commentary on the back-end realities and challenges of the criminal justice system

This week I have seen a number of important and thoughtful commentaries about important aspects of the back-end of modern criminal justice systems.  Here are two I recommend with brief excerpts:

From Joe Griffin and Arthur Rizer in the Tulsa World, "Probation and parole violations — often for technical offenses — are filling Oklahoma prisons, and it's time to do something about it":

A 2017 report drafted by the Council of State Governments shows roughly 24% of Oklahoma prison admissions were due to probation violations. That translates to roughly 3,000 people behind bars. Of those 3,000, more than half are in prison for a technical violation, such as staying out past curfew or missing a meeting. The annual cost to incarcerate these individuals is approximately $32 million.

If someone violates their terms of supervision, there should be consequences. Even more, if one poses a legitimate danger to the community, prison may be the best solution. But is sending a large number of individuals to prison who violate only the technical aspects of their supervision effective for public safety or fiscally responsible?

From J.J. Prescott and Sonja Starr in the Detroit News, "Clean-slate legislation strengthens Michigan":

For years, Michigan has offered certain offenders a chance to set aside their criminal records through expungement. But this path has been long, narrow and rocky at best, so few people have been able to take advantage of it. Now, the state Legislature is considering adopting a package of new bills to expand set-aside access. We strongly urge it to do so.

We recently conducted a major study of the effects of Michigan’s set-aside procedure. We found that while very few people with records get set-asides, those who do have great outcomes. In particular, we find that expungement is associated with large improvements in employment opportunities. Wages increase by close to 25% in just a year as people who had been unemployed became able to find stable work.

We also find nothing to suggest that granting someone a set-aside puts the public at risk, as skeptics have sometimes suggested. Those who receive set-asides are less likely to commit a new crime than the general adult population of Michigan. The rate of serious or violent re-offending is almost zero.

UPDATE: I just saw this AP article in this same vein headlined "Prosecutor aims to help people clear records of drug crimes." It starts this way:

Thousands of people in Utah’s largest county would be able to clear their records of drug crimes under a push announced Tuesday that advocates say goes further than many similar efforts around the nation.

The move by Salt Lake County District Attorney Sim Gill, which is expected to be approved by a judge, could make about 12,000 people eligible to expunge their records and remove obstacles to getting jobs, housing and education, he said. “Having a criminal record is the modern-day equivalent of being forced to wear a scarlet letter,” Gill said. “If we’re going to have any meaningful reform, we must first make sure when you have paid your debt to society these barriers are eliminated.”

The push comes amid a wave of criminal justice reforms in the U.S. A number of states and cities have moved to allow people with marijuana-related convictions to clear their records in places where the drug has been legalized.

In Utah, one of the most conservative states in the country, the GOP-dominated Legislature has passed a law allowing many misdemeanor crimes to be automatically expunged for people who stay out of trouble for a set period.

The move by Gill, a Democrat, would turn thousands of felony convictions into misdemeanors, allowing them to be automatically wiped away when the new state law goes into effect next year.

The plan goes further than many reforms elsewhere in the country because it includes a wide range of drug-related convictions, some dating back two decades, said Miriam Krinsky, executive director of the group Fair and Just Prosecution, which works with prosecutors around the country on criminal justice reform. The Utah effort is extraordinary, she said. Gill’s office sorted through drug-related convictions from 1997 through 2015, looking for people with misdemeanors and low-level drug possession felonies who had stayed out of trouble for at least five years.

September 26, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (1)

September 25, 2019

"How Mandatory Minimums Enable Police Misconduct"

The title of this post is the title of this notable new New York Times commentary authored by Scott Hechinger. I recommend the piece in full, and here are excerpts:

Police departments rightfully get blamed for the crisis in violent and corrupt policing. The recent firing of Daniel Pantaleo, the New York Police Department officer who strangled Eric Garner to death, lied about it, kept his job for five years and got terminated only after international pressure and the recommendation of a Police Department judge, underscores why.

But the near impossibility of getting fired is only part of the crisis of impunity. An overlooked but significant culprit is mandatory minimum sentencing.

In criminal courts throughout this country, victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing in exchange for plea deals. They do so because the alternative is to risk the steep mandatory minimum sentence they would face if they went to trial and lost. Prosecutors use the fear of these mandatory minimums to their advantage by offering comparatively less harsh plea deals before pretrial hearings and trials begin.

The result is not only the virtual loss of the jury trial — today, 95 percent of convictions come from guilty pleas instead of jury verdicts — but also the loss of the only opportunity to confront police misconduct in criminal proceedings.  In New York City, for example, less than 5 percent of all felony arrests that are prosecuted have hearings to contest police misconduct. For misdemeanor arrests that are prosecuted — a third of which are initiated by the police — less than .5 percent of cases go to a hearing.  A guilty plea also has the effect of insulating police from any civil rights lawsuit asserting false arrest because a plea of guilty serves as an admission that the officers’ arrest was justified....

The framers of the Constitution envisioned a far different system.  They knew well from British rule that the government’s power to stop, search, detain, accuse, judge and punish people suspected of committing crimes presented unique risks for abuse.  While they did not envision plea bargaining or the kind of policing we have today, three of 10 amendments in our Bill of Rights — the Fourth, Fifth and Sixth — when read together, collectively describe the view that government power should be vigorously challenged, without fear of reprisal or punishment, at every turn when it threatens the liberty of individuals. This original intent becomes meaningless if defendants cannot seek and receive judicial protection.  As the United States Supreme Court warned nearly 60 years ago in the landmark Mapp v. Ohio: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”...

We must abolish mandatory minimum sentences.  Aside from denying individualized justice and driving mass punishment, they usurp the role of the jury, coerce guilty pleas and, yes, insulate police misconduct. But as Jacob’s case underscored, even in the rare cases where officers are forced to testify and a judge finds them unbelievable, there is no mechanism to ensure that they are halted from being able to contribute to future prosecutions.

Fortunately, there is a growing national conversation among forward-thinking district attorneys and prosecutors to take police accountability more seriously.  District attorneys like Larry Krasner in Philadelphia and Kim Gardner in St. Louis have developed “do not call” lists of officers whom they refuse to rely upon based on previous findings of incredibility or misconduct.  If more prosecutors start rejecting arrests from bad officers, a strong message can be sent and their ability to continue hurting people can be stymied.

Prosecutors must also end the practice of the “hearing penalty,” where a plea offer made is forever lost once the hearing starts.  A plea offer, once made, should not depend on a person’s having the audacity to exercise their constitutional rights.  A system that provides no disincentive for misbehavior and no accountability for those with the greatest responsibility and the power to take away a person’s liberty is profoundly dangerous.

September 25, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (2)

Texas completes its seventh execution of 2019 with killing of triple killer

As reported in this local article, a "Texas death row inmate with claims that he was intellectually disabled was executed Wednesday at the Huntsville 'Walls' Unit for stabbing his two stepsons during an attack more than 12 years ago in their North Texas home that also killed his wife." Here is more:

Robert Sparks, 45, was apologetic to his family for the September 2007 slayings of 9-year-old Harold Sublet and 10-year-old Raekwon Agnew in their Dallas home.

“I am sorry for the hard times and what hurts me is that I hurt y’all,” Sparks said in his last statement.  He was declared dead at 6:39 p.m., approximately 23 minutes after the lethal process began.

Prosecutors say Sparks' attack began when he stabbed his wife, 30-year-old Chare Agnew, 18 times as she lay in her bed.  Sparks then went into the boys' bedroom and separately took them into the kitchen, where he stabbed them. Raekwon was stabbed at least 45 times.  Authorities say Sparks then raped his 12- and 14-year-old stepdaughters.

His attorneys fought his appeal until the final minute, arguing that the jury specifically relied upon “the false testimony of prosecution expert A.P. Merillat when sentencing him to death.  The appeal also claimed that the courtroom bailiff wore a syringe tie on the date of jury deliberations, “creating an unacceptable risk of impermissible factors coming into play at trial.”

Notably, as revealed in this SCOTUS order, Justice Sotomayor thought this claim about a syringe tie justified stopping his execution.  Here is her dissent from the Supreme Court's denial of a stay for Sparks:

The allegations presented in this petition are disturbing.  On the day the jury began punishment deliberations in petitioner Robert Sparks’ capital murder trial, one of the bailiffs on duty in the courtroom wore a black tie embroidered with a white syringe — a tie that he admitted he wore to express his support for the death penalty.

That an officer of the court conducted himself in such a manner is deeply troubling.  Undoubtedly, such “distinctive, identifiable attire may affect a juror’s judgment.” Estelle v. Williams, 425 U.S. 501, 504–505 (1976).  The state habeas court, however, conducted an evidentiary hearing but did not find sufficient evidence to conclude that the jury saw the tie. I therefore do not disagree with the denial of certiorari.  I nevertheless hope that presiding judges aware of this kind of behavior would see fit to intervene in future cases by completely removing the offending item or court officer from the jury’s presence.  Only this will ensure the “very dignity and decorum of judicial proceedings” they are entrusted to uphold. Illinois v. Allen, 397 U.S. 337, 344 (1970).  The stakes — life in this case, liberty in many others—are too high to allow anything less.

September 25, 2019 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

"Execution of Youth under Age 21 on the Date of Offense: Ending with a Bang or a Whimper?"

The title of this post is the title of this new article authored by Hollis Whitson and Eric Samler now available via SSRN. Here is its abstract:

Consistent with the scientific evidence that proves that adolescent brain development continues well into the third decade of life, the Supreme Court may be foreshadowing the day when an actual or de facto categorical ban will bar the death penalty for offenders who were under the age of 21 years old on the date of the offense.  For almost two decades, death sentences and executions of such persons have been in steep decline — in absolute numbers and in geographical concentration. Over the same period, the minority percentage of those impacted has increased.  The authors joins the American Bar Association and other voices that have called for a categorical ban on execution of persons who were under the age of 21 years old at the date of offense.

September 25, 2019 in Assessing Graham and its aftermath, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3)

September 24, 2019

Next parent sentenced in college admission scandal gets four months in federal prison

As reported in this New York Post piece, headlined "Businessman gets 4 months for bribing his son’s way into USC," the second parent sentenced in the college admissions scandal will be spending somewhat longer in prison than Felicity Huffman. Here are details:

A Los Angeles businessman who paid $250,000 in bribes to get his son into USC — lying that the kid was an international water polo star — landed four months behind bars Tuesday.

Devin Sloane, a 53-year-old water treatment company owner, had pleaded guilty in May to conniving with college admissions scamster Rick Singer and crooked University of Southern California officials to get his son into the top college....

The dad had put his son in a Speedo and swim cap and posed him with a water polo ball in the family’s backyard pool for photos to help create a fake athletic profile for the kid in the summer of 2017. With the help of his dad’s accomplices, the teen was then marketed to the university as an acclaimed international player with “the youth junior team in Italy” who participated in tournaments from Greece to Serbia and Portugal, the feds said.... The teen had never played the sport competitively.

Federal prosecutors in Boston said in court papers that Sloane also “bragged about misleading a USC development official to cover up the quid pro quo — using his dead mother as a prop for a fake donation — and even expressed outrage when high school counselors dared to question why a student who did not play water polo was being recruited to play college water polo.”

The feds had sought a year and a day in prison for Sloane, whom they said showed “moral indifference” during the scam. His lawyers argued for no jail time, instead offering that Sloane could do community service by working with kids at a private school.

Before sentencing Sloane, Judge Indira Talwani scoffed, “That’s about as tone-deaf as I’ve heard. The independent school kids are not the victims in this case,” according to WGBH-TV.

In addition to the four-month prison term, Sloane must complete 500 hours of community service and pay a $95,000 fine.

Sloane is the second parent to be sentenced in the scandal. The first, actress Felicity Huffman, received 14 days behind bars for her $15,000 bribe. Assistant US Attorney Eric Rosen said in court before Sloane’s sentencing that the dad was different from Huffman because the actress didn’t tell her daughter about the bribe scheme, thus avoiding directly involving her, while Sloane “literally threw his kid into the family pool,” according to a Law360 newswire reporter.

Rosen also noted the difference in the size of the bribes in each case.... But Sloane’s lawyers argued to Tuesday that their client didn’t completely understand that the money he was paying was a bribe.

Prior related posts:

September 24, 2019 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Tennessee AG seeking to make his state even more like Texas with respect to capital punishment

This new AP article, headlined "Tennessee Seeks Execution Dates for 9 Death Row Inmates," explains why the Volunteer State is on a path to become the new Texas in the arena of capital punishment thanks in part to efforts by the state's Attorney General.  Here are the basics:

Tennessee's attorney general has asked the state Supreme Court to set execution dates for nine death row prisoners, bucking a national movement away from capital punishment. Attorney General Herbert Slatery quietly filed the request on Friday with no explanation, and the state Supreme Court later posted it on its website on Tuesday.

"The Tennessee Constitution guarantees victims of crime the right to a 'prompt and final conclusion of the case after the conviction of sentence,'" Slatery said in a statement Tuesday in response to a request for comment from The Associated Press.

Slatery's motion came the same day he publicly announced he would challenge a Nashville Criminal Court's decision to commute the death sentence of black inmate Abu-Ali Abdur'Rahman's to life in prison after concerns were raised that racism tainted the jury selection pool.  Slatery argued in his appeal that the court's order "circumvented established legal procedures."

Assistant Federal Public Defender Kelley Henry said she was surprised by the request when she received it in the mail on Monday. Seven of the nine men included in Slatery's motion are represented by the public defender's office.  "Each case is unique and represents a number of fundamental constitutional problems including innocence, racism, and severe mental illness," Henry wrote in a statement on Tuesday. "We will oppose the appointed attorney general's request."

In Tennessee, the attorney general can request execution dates once juries have delivered death sentences and inmates have exhausted their three-tier appeals process in state courts and the U.S. Supreme Court.  The state Supreme Court then schedules the executions. It has not yet scheduled the nine Slatery requested but has scheduled two others for the coming months.

Tennessee has executed five people since it resumed executions about a year ago. The state was second only to Texas in the number of executions it carried out in 2018, the fourth consecutive year in which there have been fewer than 30 executions nationwide. Tennessee executed three people last year; Texas put to death 13....

In Tennessee, executions are carried out through lethal injection unless the drugs are unavailable, in which case the electric chair is used. Additionally, death row inmates who were convicted of crimes before January 1999 can choose the electric chair or lethal injection.  Tennessee put 56-year-old Stephen West to death by electric chair last month. West was convicted of the 1986 kidnappings and stabbing deaths of a mother and her 15-year-old daughter. He also was convicted of raping the teen.

September 24, 2019 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement

This lengthy new Politico piece portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead. The full headline summarizes the essential: "Trump snubs Jared Kushner’s signature accomplishment; The president thinks criminal justice reform is a political loser, and hasn't been shy about saying so."  Here are some extended excerpts:

When President Donald Trump huddled with campaign aides in the late spring to discuss his bid for reelection, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s historic passage of the First Step Act — a sweeping criminal justice reform bill that eluded previous administrations and has earned celebrity support.

Kushner reiterated the positive selling points of that bill during the Oval Office meeting as Trump campaign officials and White House aides ticked through the president’s achievements, wondering which would resonate most with his adoring base.  But Trump wasn’t interested and told Kushner he didn’t think his core voters would care much about a bipartisan deal for which he’s since accused Democrats of trying to steal credit. “It was clear he thinks it’s a total dud,” said a person familiar with the meeting. “He made it abundantly clear he doesn’t think it’s worth talking about.”

Kushner, whose own father spent more than a year in federal prison, worked closely with Democratic and Republican senators to get the criminal justice reform bill over the finish line last year — often telling his tough-on-crime boss it was worth expending political capital to seize a rare opportunity to overcome the deeply partisan divide on Capitol Hill and solidify his image as a pragmatic deal-maker.

But now, Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s really mad that he did it.  He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Indeed, for months, the president has glossed over his son-in-law’s signature legislative achievement at his campaign rallies. If he brings up criminal justice reform, it’s almost always to mock his predecessors for their inability to get it done. Otherwise, as he did at his three most recent campaign events, he skips it entirely, indulging in long-winded rants about unresolved issues like trade and immigration instead of plugging one of the few bipartisan triumphs of his administration.

The subject’s notable absence from Trump’s 2020 stump speech offers a raw look at the president’s political instincts, which strongly veer toward partisan fights and away from the soaring appeals to national unity of past White House incumbents. And it lacks appeal to his base of rural and older white voters, who often respond better to hard-line rhetoric on the topic of law and order.

The nub of the issue for Trump, say White House officials, congressional aides and friends of the president, who were granted anonymity to speak candidly on the matter, is that he no longer sees criminal justice reform as a résumé booster heading into 2020.  He brings it up at official events, in response to reporters, and to religious groups — and it was a key part of Trump’s State of the Union address in January, when he welcomed home the first inmate to be released under the First Step Act — but it’s far from a permanent fixture of his reelection campaign.

“It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it,” said one White House official, adding that some Trump aides questioned why the president — who once declared himself “the law and order candidate” — endorsed the First Step Act in the first place....  In response to this story, a White House official said, “This false premise is another convoluted contradictory, media-manufactured joke. The president is clearly proud of all of his record-setting accomplishments — including the landmark bipartisan Criminal Justice Reform that data shows will save money, reduce crime and make communities safer.”

During the Oval Office meeting this spring, Trump complained that Democratic co-sponsors of the First Step Act skipped the bill signing at the White House last December (Sen. Sheldon Whitehouse of Rhode Island was the only Democrat to attend) and have refused to give him credit for passing prison reform when his immediate predecessor couldn’t, according to two people with knowledge of the meeting.  He’s said as much publicly in recent days, tweeting earlier this month: “I got it done with a group of Senators & others who would never have gone for it. Obama couldn’t come close.”

The tweet came after NBC’s Lester Holt omitted any mention of Trump’s role in advancing criminal justice reform during a televised town hall on the network. The president felt the televised special was disingenuous and thought singer John Legend, who participated in it, “paraded himself out like he was the great savior of criminal justice reform,” according to a senior administration official....

“He’s been telling Jared, ‘I got nothing from that,’” a person close to the White House said of criminal justice reform, adding that the president feels duped by claims that his popularity has grown and that he is frustrated with Kushner’s attempts to “jawbone” the issue into every speech he delivers.  “Jared has got all these stats like ‘every rapist in Florida is now going to vote Republican,’” quipped the person close to Trump.  “Trump doesn’t believe it and he’s mad Jared sold him this thing,” the same person said. (The First Step Act gives only certain nonviolent offenders a chance to shorten their sentences, and excludes sex offenders from early release.)

Kushner has claimed publicly that more nonviolent ex-felons in Florida, where they recently became eligible to vote, are registering as Republicans than as Democrats. In a rare television appearance in April, he told Fox News’ Laura Ingraham that he found that statistic “very pleasing” and one “that will surprise a lot of people when they see the new coalition that President Trump is building.”  But it is unclear how Kushner and his team procured such data. As of March, more than 2,000 formerly incarcerated felons had registered to vote in Florida, according to a study by the Brennan Center for Justice, which did not disclose the new registrants’ party affiliations. An aide to Kushner did not provide details on the source of the data in time for publication.

Some Trump allies argue that Kushner, who continues to monitor implementation of the First Step Act, is unlikely to persuade media personalities and Democratic lawmakers who support either to credit Trump with working across the aisle to get the measure passed.

“Van Jones was happy with Trump for a day. That’s all Trump got,” said the person close to Trump, referring to the liberal CNN pundit and former Obama adviser, who once described the First Step Act as “a Christmas miracle.”  Jones did attend a White House summit on prison reform this April — months after the bill passed — and recently met with Kushner to discuss its impact.  Jones, who co-founded the bipartisan criminal justice reform nonprofit #cut50, noted that he’s continued to sing Trump’s praises on the topic, including in a recent interview with CNN in which he celebrated Trump’s role in signing the First Step Act into law.... “There’s always been a bunch of people in the building, they didn’t like it before, during or after, and they’ve always been able to leak out anonymous bullshit quotes that then very quickly have egg on their faces because Trump does something else positive in this direction or throws in another line in a speech,” said Jones, who confirmed that Trump has been frustrated with the lack of credit he’s received....

Some Trump allies worry that the more the president talks about criminal justice reform, the more vulnerable he becomes if a prisoner released early under the restructured sentencing guidelines is ever accused of committing another crime.  When Republicans battled over criminal justice reform last fall, a small group of conservative senators who ultimately opposed the bill warned Trump of the dire consequences he could face if an inmate who won early release became a repeat offender.  “You let people out of jail early, commute sentences, something bad happens because of this effort [and] it’s going to be one more egg on their face — or even worse, blood on their hands,” said a former Senate Republican staffer.

Another GOP aide pointed to a negative ad campaign Republican gubernatorial candidate Eddie Rispone recently launched against Louisiana Gov. John Bel Edwards over his support for statewide sentencing reform. The ad accuses Edwards of putting “dangerous” and “violent” ex-felons “back on our streets where they robbed, attacked, [and] murdered.” A person familiar with the ad buy said it was prompted by the September arrest of a Louisiana man on burglary charges who was released early last year as part of a parole reform bill passed by the state Legislature in 2016. “Any smart political person would not go out bragging that they let criminals out of jail,” the GOP aide said.

This reporting is quite interesting, but not really all that surprising in light of Prez Trump's personal and political history. It also has me wondering whether Attorney General William Barr, who seems to be in good with Prez Trump and does not seem inclined to be a big fan of the FIRST STEP Act, might be having some influence on how the Prez thinks about these issues. Most fundamentally, this story serves as yet another reminder of just how fragile political support for criminal justice reform can be and how critical it can be to get reform work done whenever a window of opportunity is open.

September 24, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

How many have lost their right to vote due to the war on drugs?

Today, Tuesday, September 24, 2019, marks National Voter Registration Day.  This website provides this account of this notable special day:

National Voter Registration Day is a national holiday celebrating our democracy. It was first observed in 2012 and has been growing in popularity every year since.... The holiday has been endorsed by the National Association of Secretaries of State (NASS). It is further supported by the National Association of State Election Directors (NASED), the U.S. Election Assistance Commission (EAC), and the National Association of Election Officials (The Election Center).

Every year millions of Americans find themselves unable to vote because they miss a registration deadline, don’t update their registration, or aren’t sure how to register. National Voter Registration Day wants to make sure everyone has the opportunity to vote. On Tuesday September 24, 2019 volunteers and organizations from all over the country will “hit the streets” in a single day of coordinated field, technology and media efforts. National Voter Registration Day seeks to create broad awareness of voter registration opportunities to reach tens of thousands of voters who may not register otherwise....

What It Will Accomplish

  • Registering Voters: In 2018 over 800,000 voters used National Voter Registration Day to register to vote across all 50 states.
  • Mobilizing Volunteers: Each year the holiday’s growing number of local partners engage upwards to 10,000 local volunteers.
  • Educating Voters: Millions of voters need to register and re-register every year. By utilizing new technology and leveraging partners, we’ll educate Americans in all 50 states about how to register, sign up for election reminders, check their registration online, get mail ballots, learn about early voting and more.
  • Uniting for a Common Purpose: National Voter Registration Day is a day of civic unity. It’s an opportunity to set aside differences and celebrate democracy and the rights and opportunities we all share as Americans.

Though I am ever eager to "celebrate democracy and the rights and opportunities we all share as Americans," I never want to lose sight of the unfortunate reality that not all adult Americans share in the rights and opportunities of voting because of widespread felon disenfranchisement laws.

The Sentencing Project recent published this helpful primer on felony disenfranchisement, which includes these disconcerting statistics:

As of 2016, 6.1 million Americans were prohibited from voting due to laws that disenfranchise citizens convicted of felony offenses....  An estimated 3.1 million people are disenfranchised due to state laws that restrict voting rights even after completion of sentences....

Felony disenfranchisement policies have a disproportionate impact on communities of color.  Black Americans of voting age are more than four times more likely to lose their voting rights than the rest of the adult population, with one of every 13 black adults disenfranchised nationally.  As of 2016, in four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five black adults was disenfranchised. In total, 2.2 million black citizens are banned from voting.

Because I view any and all forms of felony disenfranchisement to be inconsistent with a robust commitment to democracy, I generally oppose any and all forms of felony disenfranchisement.  But, as the question in the title of this post indicates, I found myself recently thinking and wondering about just how many votes have been lost as a result of the modern drug war.  Though only about 20% of all incarcerated persons are imprisoned for a drug offense, I suspect that a higher proportion of those disenfranchised for a felony may be drug offenders.  Calculating an exact number of disenfranchised persons with a drug felony wold be quite hard, but it is easy to be concerned that robust American voting "rights and opportunities" are another casualty of the modern drug war.

September 24, 2019 in Collateral consequences | Permalink | Comments (3)

September 23, 2019

Gearing up for the next round of sentencings in college admissions scandal

This new Los Angeles Times article, headlined "Prosecutors in college admissions scandal fighting for prison time for parents," reports on arguments and analyses in the run up to the federal sentencings of other persons who have pleaded guilty in the high-profile college admissions scandal. Here are highlights:

Shortly before she sentenced Felicity Huffman this month to two weeks in prison for her role in the college admissions scandal, a judge settled a lingering legal dispute.  Prison sentences for parents who admitted to taking part in the scheme would not be based on how much money they paid to take part in the scam, U.S. District Judge Indira Talwani ruled.

The ruling didn’t impact Huffman because the $15,000 she paid to rig her daughter’s college entrance exams was far less than what others shelled out.  But starting this week, Talwani will sentence 10 more parents, and her decision dealt a blow to prosecutors, who tried to convince her that higher payments should mean longer sentences.

The parents and their attorneys, meanwhile, have been left with mixed signals from the judge.  On the one hand, her ruling means parents could receive significantly lower prison sentences or avoid prison altogether.  On the other, Talwani’s decision that Huffman should spend some time incarcerated is a sign she’ll come down as hard or harder on other parents, experts said.  “She would need a very compelling reason to give someone with the same or more culpability less time,” said James Felman, an attorney and expert on white-collar sentencing norms who isn’t involved in the case.

The prosecution doubled down after their defeat.  In an effort to salvage the prison sentences they maintain are warranted in the case, they are trying a new tack.  Rather than staking the rationale for incarceration to the five- and six-figure sums parents paid to access the bribery and cheating operation run by college admissions consultant William “Rick” Singer, the government wants Talwani to punish them for the deviousness and audaciousness of their crimes.

Under the new approach put forth in court papers filed by Assistant U.S. Atty. Eric Rosen, parents who took elaborate, deliberate steps to sneak their kids into a school or tried to cover their tracks afterward would be more culpable than someone who simply wrote Singer a check.

Rosen’s gamble will be tested this week when Talwani sentences two Los Angeles businessmen in court hearings Tuesday and Thursday.  Up first is Devin Sloane, an executive at a water technology company who has admitted paying Singer and an alleged accomplice $250,000 to get his son into USC by misrepresenting the teen as a talented water polo player who deserved a spot on the school’s team.

Before Talwani made her ruling, Rosen asked the judge to sentence Sloane to one year in prison.  The prosecutor did not budge from the request in a new filing last week, even though the judge’s order means Sloane — and all of the parents Talwani sentences — are eligible for sentences ranging from no time in prison to six months incarcerated under federal sentencing guidelines that judges consult.

Rosen argued in his recent filing that a year in prison was still the appropriate penalty, pointing to what he called Sloane’s “moral indifference during the fraud, and his lack of remorse afterward.”...  Rosen also revived the idea that the size of Sloane’s payment should have some bearing on his sentence, despite Talwani’s ruling.  He wrote that while the $250,000 sum is “an imperfect measure of blameworthiness,” it still amounted to an “indication, however rough, of the lengths he was willing to go to obtain the illegal fruits of a fraud scheme.”

Nathan Hochman, an attorney for Sloane, countered with a lengthy written plea, making a case for why Talwani should spare the 53-year-old father from prison.  Hochman portrayed Sloane as a stand-up, well-intentioned father who got caught up in the pressure cooker of the college application process and made a regrettable decision.  Far from eschewing responsibility, Hochman said Sloane owned up to his crime soon after he was arrested in March.  Instead of prison, Hochman urged to Talwani to give Sloane probation and 2,000 hours of community service.

Attorneys for Stephen Semprevivo, who will be sentenced Thursday, asked Talwani to spare him prison as well, saying probation and 2,000 hours of community service would suffice.  Semprevivo, they wrote in a court filing, was a “victim” of Singer, a “master manipulator” who coaxed and eventually coerced Semprevivo into going through with the fraud.

Rosen rebuffed that portrayal, saying the Los Angeles business development executive should spend 13 months in prison for conspiring with Singer to bribe a Georgetown tennis coach to recruit his son, who didn’t play tennis, at a cost of $400,000.  Rosen laced into Semprevivo for making his son “an active participant in a long-term federal crime” and making the decision to file a lawsuit against Georgetown in an attempt to keep the school from annulling his son’s credits.

Prior related posts:

September 23, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Highlighting (just some of) the many challenges of gathering good criminal justice data

This new Los Angeles Times editorial, headlined "Police, prosecutors and courts are keeping California’s criminal justice data a secret," provide a useful reminder of an evergreen reality — namely that good criminal justice data is ever elusive.  Here are excerpts:

A quick flip through the statute books could leave the false impression that California has the nation’s most transparent criminal justice system, the most comprehensively compiled and carefully analyzed crime data, the most penetrating public access — even without a new bill on its way to Gov. Gavin Newsom’s desk.

Since the 1950s, California law has required the state Department of Justice to collect names, numbers and other key facts from every state and local agency dealing in any way with crime, criminals or “juvenile delinquents.”  In the 1970s, lawmakers set standards for sorting and sharing justice data among courts, police, prosecutors, jails and prisons.  In 2016, a new law required the state attorney general to post basic criminal statistics online....

Yet retrieving useful information about California’s justice system is nearly impossible.  More than half of all arrest records fail to show whether the suspect ultimately was convicted, so police can’t tell whether the person they just stopped has a serious felony record.  Innocent people might sit in jail while courts or probation departments try to track down complete rap sheets that really ought to be available with a couple keystrokes.  Violent felons may be left free to buy guns despite being legally barred from doing so. Potential employers can’t tell the difference between a job applicant with a criminal past and one who was once mistakenly arrested.

Meanwhile, inadequate numbers and other data leave the public with no idea whether criminal justice reforms or other new laws are working as they were intended, or whether their courts, cops, prosecutors, probation departments and public defenders are working efficiently and effectively.

How can a state that requires so much information-gathering be so in the dark about its justice system?  In part, it comes down to lack of resources and lack of technological know-how.  Some courts and county agencies (barely) meet their legal requirements by sending paper records to the Justice Department, which then must transcribe the documents into its own data system.  Other agencies have some tech savvy but use systems or software that are incompatible with one another or are no longer supported by the companies that developed them.  And standards for collecting data vary around the state, so all that carefully compiled information has limited utility....

One problem that sets California apart is scale.  The state is huge, and so are the numbers of arrests, dismissals, convictions, sentences, probation orders.  It takes money and expertise to manage all those records.  But it may also be that criminal justice agencies have little enthusiasm for opening their operations to public scrutiny. For example, until recently the California Department of Corrections and Rehabilitation prohibited researchers from publishing findings that officials believed might reflect poorly on the department, according to an April 2019 report by the Stanford Criminal Justice Center and Measures for Justice (an organization seeking to improve justice data collection practices).

The same may be true of other agencies.  A district attorney, for example, has a political incentive to jealously guard data about conviction rates, reversals on appeal and the like.  Judges are wary of being graded on how swiftly cases move through their courts or how many African American defendants, for example, are convicted in their courtrooms, and how long their sentences are compared with convictions and sentences for white defendants.

Assembly Bill 1331, whose fate now rests with Newsom, would close some of the current gaps in criminal history records by tightening reporting requirements for law enforcement agencies and courts.  It would require release of anonymized information to research agencies, which would then be able to sift through data to discover trends or biases.  It would promote better and faster sharing of information among public agencies.

It’s a step forward, and it deserves Newsom’s signature.  But like all those older laws on California’s books, it won’t solve the state’s criminal justice information problem without serious buy-in by courts, police and other participants in the system.  They will have to more fully embrace — on their own or through public and political pressure — their role in producing useful data.

September 23, 2019 in Data on sentencing, Who Sentences | Permalink | Comments (0)

September 22, 2019

"Justice sometimes needs a do-over"

The title of this post is the headline of this Washington Post commentary authored by James Forman Jr. Here are excerpts:

The D.C. Council is considering the Second Look Amendment Act, which builds on the Incarceration Reduction Amendment Act of 2016 (IRAA).  That law allows people convicted of serious crimes before they turned 18 to ask judges to review their sentences after they have served 15 years.  The proposed law expands eligibility for sentence review to all those who committed crimes before age 25 and have served at least 15 years in prison....

The core idea behind this is that everybody — including people in prison — grows and matures with time. Social science research shows that most people who commit violent crimes do so while they are young....

Of course, some people in prison remain a threat.  That’s why D.C.’s Second Look Amendment Act would not give judges carte blanche to shorten every sentence that comes before them.  Instead, the law instructs them to consider a long list of factors, including evidence of maturity and rehabilitation, medical and mental health reports, prison disciplinary records, victim impact statements and the views of the U.S. attorney’s office.

The Second Look Amendment Act offers a promising corrective to the harsh — and ineffective — practices once commonplace in courthouses across America.  But while the law has the support of the majority of the city’s elected officials, the unelected U.S. attorney is leading a campaign to scuttle it.

I’m not surprised by this opposition.... But I am disappointed by the office’s willingness to mislead the public in making its case.  Consider one of its central criticisms of IRAA and the Second Look Amendment Act: It says that the laws eliminate a judge’s ability to consider the nature of the crime when deciding whether to reduce a sentence.  In fact, the laws do nothing of the kind.  Though a change to IRAA this year removed “the nature and circumstances of the offense” from a list of factors that judges must consider, nothing in the law prevents judges from engaging in such consideration, and several provisions still in force effectively require them to do just that.

Don’t take my word for it.  The U.S. attorney’s office has made this very point in court.  Last month, when prosecutors opposed a sentence reduction in the case of United States v. Momolu Stewart, the U.S. attorney’s office told the judge that he must consider the defendant’s crime because it is “essential context for evaluating other factors that remain relevant under the IRAA.” It appears that the U.S. attorney’s office wants to have it both ways. In court, prosecutors tell judges they are logically bound to consider the crime, while in the press and community meetings, they frighten voters by telling them that the law doesn’t allow that.

The Second Look Amendment Act gives the D.C. Council a chance to restore a measure of fairness to a criminal system often lacking it.  Standing up to the U.S. attorney’s office may not be easy, but the D.C. Council did so when it rejected that office’s scare tactics and eliminated mandatory minimums for drug offenses in the 1990s. That decision now is universally admired.  If the council is willing to embrace reason over fearmongering again, I am confident the Second Look Amendment Act will be recognized as another proud accomplishment.

September 22, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)