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October 12, 2019

Deep dive into the deep human realities surrounding DC second look laws and policies

A helpful reader alerted me to this great extended article from the Washington City Paper about second look sentencing players and practices in DC. The piece, which I recommend in full, is headlined "How to End a Sentence: Juvenile sentencing reforms have sparked a face-off between the D.C. Council and U.S. Attorney over who should be released, and when."  Here are excerpts:

The [Incarceration Reduction Amendment Act] IRAA allows people who committed violent crimes before they turned 18 to ask a judge for a reduced sentence, as long as they’ve served at least 15 years. A D.C. Council bill introduced in February, the Second Look Amendment Act, would expand the law to include people who committed crimes before their 25th birthdays. An estimated 70 people have asked for a new sentence, and the bill could expand the number of eligible offenders to more than 500, the USAO believes.

This legislation comes as so-called “second look laws” are gaining momentum across the country and follow the precedent set by multiple U.S. Supreme Court rulings curtailing harsh sentences for juveniles. The high court’s decisions rely on a growing body of research showing brain development continues into a person’s mid-20s.

The Model Penal Code, a project of the American Law Institute that provides a template for criminal justice policy makers, suggests that offenders of all ages receive a second look after serving 15 years in prison. The latest version, revised in 2017, explains that America relies on the heavy use of lengthy prison sentences more than any other Western democracy. The U.S. has the highest incarceration rate in the world, despite two decades of falling crime rates.

D.C. Superior Court Judge Ronna Beck agrees that long sentences deserve another look. “I wish there were an opportunity for judges to be able to review everyone’s sentence after a significant period of time,” Beck said during Flowers’ resentencing. “Many people will not qualify for the sentence reduction that you did, but I think that it would be beneficial to our system to be able to have a review like this so that when people have really transformed their lives, as you seem to have done, that there was an opportunity to adjust a sentence that was imposed many, many decades earlier.”

A majority of the D.C. Council supports the Second Look Amendment Act—as does Mayor Muriel Bowser’s administration and Attorney General Karl Racine. But [Jessie] Liu, the Trump-appointed U.S. Attorney, is not a fan. Her office has encountered few IRAA petitions that it likes. Since the original law took effect in 2017, federal prosecutors, who have jurisdiction over felony crimes in D.C., have opposed nearly every request for resentencing.

They’ve argued that offenders are too dangerous to be released, their crimes are too heinous, they haven’t accepted responsibility for their crimes, their release undermines “truth in sentencing,” and that, although prison records showing a dedication to education are admirable, they are to be expected.

At a recent hearing for Mustafa Zulu, a man who spent 20 years in solitary confinement starting when he was 20, Assistant U.S. Attorney Jocelyn Bond argued that Zulu’s “very very impressive” list of educational courses and accomplishments does not outweigh his sins in and out of prison. “Education is not a panacea for violence,” Bond said. “It does not fix someone’s character … It doesn’t change someone’s underlying violent character.”

In September, as part of its campaign opposing the Second Look Amendment Act, the U.S. Attorney’s Office hosted a meeting for the public and a group of advisory neighborhood commissioners. Liu stood against the wall while representatives from her office made their case against the bill, emphasizing the impact on victims and concerns that the Council is expanding the law too quickly without sufficient evidence that those released won’t commit new crimes.

During the meeting, John Hill, a deputy chief and career prosecutor, cited data from the Bureau of Prisons showing a recidivism rate of about 35 percent among people released from 2009 to 2015 who would be eligible under the Second Look Amendment Act. Hill ignored City Paper’s request for the underlying data, and the USAO has refused to release it. Hill also presented incorrect data on D.C.’s incarceration rate, which the office later corrected in a tweet.

Nazgol Ghandnoosh, a senior researcher for The Sentencing Project, a nonprofit organization that promotes criminal justice reform, points out that the BOP’s definition of recidivism includes technical parole violations for missing a meeting or smoking weed. “A recidivism measure that separates these factors from new offenses gives people a better sense of public safety risk,” Ghandnoosh says.

Sarah McClellan, chief of the USAO’s victim witness assistance unit, explained at the September meeting that the new law reactivates trauma for victims and their families, many of whom have spoken passionately in opposition to offenders’ release.  At least two advisory neighborhood commissioners have published editorials opposing the second look bill, including Darrell Gaston, whose 15-year-old godson, Gerald Watson, was gunned down earlier this year. Malik Holston, 16, is charged with first-degree murder in Watson’s death.

October 12, 2019 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

October 11, 2019

Terrific ABA review of SCOTUS criminal work during Oct 2018 Term

Download (6)LawProf Rory Little regularly prepares for the American Bar Association an end-of-Term review of the Supreme Court's work in criminal cases.  A decade worth of this terrific work is available at this link, and just recently added there is this 48-page accounting of the October 2018 Term.  The whole document is terrific, and here is the start of the first section under the heading "Brief Overview of the 2018-19 Term, Criminal Cases" (emphasis in original):  

As far as criminal cases go, there are two “big stories” from the past Term, one descriptive and the other substantive impact of the Term’s “big” cases. Let’s do the descriptive first.

This was the first Term in which two new Justices appointed by President Trump served together. Justice Gorsuch was appointed at the end of the Term before last, so this was his second full Term. Justice Kavanaugh served almost all of this Term; his confirmation was slightly delayed (as you may recall), so he actually first took the bench on Monday, October 8, the second week of the Term.  Still, the big question was, how would these two new Justices affect the Court?

What we now know is that, contrary to the general picture of the prior Term, the Justices divided in a remarkably large number of different variations.  Overall, there were 67 argued cases, plus 5 summary reversals, for a total of 72. I count 26 of the 72 as “criminal law and related,” or 24 of the 67 argued.  Of the 72, there were 20 decisions decided by a 5-4 vote -- and of these, there were 10 different variations of which Justices made up the five. This is an unusually high number. It seems that the current Justices are still trying to find their way, and (happily) are not cemented to always-predictable results.  I count 10 of the 5-4 decisions as criminal; in five of those the “liberal” bloc prevailed. If we think of the four liberal Justices as Ginsburg, Breyer, Sotomayor and Kagan, the question becomes: who was the fifth Justice? Interestingly, it was Gorsuch in three, Roberts in one, and Alito in one. (Kavanaugh was not the fifth vote in any 5-4 liberal criminal win, but he did write the strong majority opinion in Flowers, see below, a pro-defendant Batson death penalty decision.)

Justice Gorsuch’s pro-defense votes in at least four cases (Davis and Haymond, plus dissents in Gamble and Mitchell) indicate that he continues the “libertarian” streak that his predecessor Justice Scalia sometimes exhibited.  At the same time, Justice Gorsuch’s majority opinion in Bucklew, a death penalty case in which he boldly wrote that “last-minute stays should be the extreme exception,” demonstrates a strong pro-government position on capital punishment. Interestingly, despite their common appointment source, Justices Gorsuch and Kavanaugh did not always agree (they had only a 56-70% overall agreement rate), and were on opposite sides in six or more criminal cases. Is there a lesson here? Wait and see, is my advice.

Substantively, because 23 of the 67 argued cases (or 25 of the 72 total) were criminal lawor-related decisions, we can see that over a third of the docket is “criminal.” This is about normal for the Supreme Court’s docket. With 25 criminal-and-related decisions, of which I’d say 17 were “pure criminal,” there is a lot to digest (as the following 38 pages demonstrate).  Only a few highlights can be summarized here.

What was the “biggest” criminal law decision of the Term?  Of course it depends on your interests, and perhaps your ideology.  Certainly the Gamble case, affirming the “separate sovereigns” exception to the Sixth Amendment’s Double Jeopardy Clause despite calls for overruling it, was big news.  Meanwhile, the Timbs decision makes it clear that the Eighth Amendment’s “no Excessive Fines” Clause applies fully to the States. (In a similar vein, next Term the Court will decide whether the Sixth Amendment’s unanimous jury requirement is similarly “incorporated,” in Ramos v. Louisiana). Meanwhile, the Fourth Amendment decision in Mitchell suggests that a majority is ready to broaden the concept of “exigent circumstances” as a categorical exception.  And finally, the Haymond decision extends Apprendi to the revocation of supervised release, which Justice Alito in dissent calls “revolutionary;” and the decision in Rehaif demonstrates a strong commitment to requiring mens rea for every factual element of an offense (in that case, knowledge that one belongs to a class of persons prohibited from possessing firearms).

October 11, 2019 in Recommended reading, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

October 10, 2019

Seeking fresh perspectives on reentry and recidivism challenges

Brent Orrell, a fellow at the American Enterprise Institute, has this notable new Hill commentary under the headline "Rethinking pathways to reentry." I recommend the piece in full, and here are excerpts:

[A] declining prison population necessarily means that thousands of individuals are taking the arduous road back from prison to their communities.  For many, this road ends up looking more like a roundabout than a highway, with more than 80 percent being arrested again less than a decade after release. Much has been tried to reduce recidivism but little has been shown to have significant positive effects.  Over the past year, the American Enterprise Institute convened a group of scholars to delve into this problem, bringing together more than two dozen program evaluators, criminologists, and researchers to discuss what works and what does not in helping formerly incarcerated individuals successfully leave prison and reintegrate back into their communities.

Our research report sought to distill some insights into the state of research and practice in reentry with the goal of identifying fresh perspectives for policymakers, researchers, and practitioners working in the field. Many of these ideas will be more fully developed as part of a volume to be published in early 2020.  While the working group did not seek to develop a consensus, it did identify several critical areas of focus for advancing the work of the corrections and reentry fields.

First, it is crucial that programs operating within correctional systems and at the community level become more rigorous in their program designs. Correctional systems and reentry programs at the community level need clearly defined theories of change that lay out a strategic conceptual framework, detailed steps for reaching the desired outcomes, and metrics for determining success.  In criminal justice and reentry, causality is hard to establish and measure, and such theories would help.

Second, researchers need to focus more time and energy on program implementation. Many correctional institutions and local criminal justice systems are either unequipped or uninformed or both about how to put a particular program model into practice. The result is a mashup of partially implemented programs that bear little resemblance to the models they are based on....

The report also highlights the importance of accurately gauging the needs of incarcerated individuals and their criminogenic risk factors.  The best research shows that tailored services produce better outcomes than “one size fits all” programs that run the risk of providing individuals either too little or too much help.  To effectively align services with individual needs, correctional staff must understand criminogenic risk factors and align services to mitigate them.  These assessments might be expensive and time consuming, but the benefits outweigh the costs.

Finally, new research indicates that people may stop committing crimes suddenly rather than desist on a slow age related curve, a model that has governed our criminal justice expectations for decades. There is evidence that even those who seem most likely to recidivate make choices to become crime free, quickly reducing or eliminating the likelihood of rearrest.  While there is uncertainty about how to produce this shift, the research suggests that reentry programs should be oriented to support those who have made or are close to making the transition.

All levels of government, along with many private and philanthropic organizations, have invested billions of dollars in trying to solve the recidivism puzzle.  To date, the effect has been disappointing.  This report and the volume that will be published next year are an effort to plot multiple pathways toward possible solutions.  Some of these pathways focus on making existing approaches more effective while others seek to innovate entirely new solutions.  The bottom line is that the status quo is neither sufficient nor sustainable. For the sake of the thousands of men and women who return home from prison each week and the families and communities who receive them, we can and must do better.

The full American Enterprise Institute report discussed in this commentary is available at this link under the title "Rethinking reentry: An AEI working group summary."

October 10, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Marshall Project reviews where 2020 Democratic Prez candidates stand on various criminal justice reform issues

The folks at The Marshall Project has put together this attractive and handy guide reporting and organizing all the position of the 2020 Democrats on criminal justice. I recommend the resource, and here are the issues on which positions are assembled:

How would you reform the bail system?

Should people in prison have the right to vote while they are incarcerated?

Should marijuana be legalized nationwide?

Should sentencing include mandatory minimums?

Do you support the death penalty?

Do you support decriminalizing illegal border crossings?

October 10, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

October 9, 2019

Another notable (but ultimately disappointing) ruling about sentence reductions under § 3582(c)(1)(A) after FIRST STEP Act

As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

But in order for § 3582(c)(1)(A) to have a significant impact, federal judges will need to fully embrace and give full effect to their new authority to "reduce the term of imprisonment" whenever and wherever they find that "extraordinary and compelling reasons warrant such a reduction."  I have flagged here and here and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But now I have to note a notable new ruling in which a notable judge seems to conclude there are "extraordinary and compelling reasons" to warrant a sentencing reduction, but then still decides not to grant a reduction for reasons that do not seem justified by the provisions of § 3582(c)(1)(A).

This new ruling comes in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), and it is authored by Senior District Judge Robert Pratt.  Notably, Judge Pratt was the district judge in the Gall case who gave full effect to the Booker ruling and whose non-incarcerative decision there was ultimately vindicated by SCOTUS.  In this new Brown case, Judge Pratt writes an extended, thoughtful opinion about compassionate release and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act.  In so doing, Judge Pratt states that "much about Defendant's situation is extraordinary and compelling" and yet still "the Court concludes it cannot exercise its discretion to grant release at this time."

The Brown opinion explains the basis on which Daniel Brown claims his situation is "extraordinary and compelling": (a) his behavior for a dozen years in prison was "exemplary," (b) he "suffered a botched surgery while incarcerated" (though he can still care for himself in prison) (c) "his daughter is without a parent" (though an adult who cares for herself) and (d) "he faces a sentence far longer than he would ever receive under modern law."  This last point is a function of Brown having received an extra 300 months (25 years!) because of stacked 924(c) gun counts that would no longer stack now after the FIRST STEP Act.  On this point, Judge Pratt further notes that the judge who originally sentenced Brown "concluded the additional 300 months' imprisonment from the second § 924(c) count was 'far greater than was necessary to achieve the ends of justice'."  And for good measure, as Judge Pratt notes, Brown's "co-defendant, who eventually ran his own drug operation, was released in April 2018."

This all sure seems to me to be "extraordinary and compelling reasons [that] warrant a reduction" under 18 U.S.C. § 3582(c)(1)(A), and Judge Pratt essentially says as much.  But, disappointingly, after making a strong factual record on Brown's behalf, Judge Pratt declines any reduction of Brown's original 510-month sentence with this reasoning: 

In this case, compassionate release nevertheless is premature because even if the First Step Act applied retroactively, Defendant would still be in prison.  With a lone § 924(c) count, Defendant still faced 210 months in prison.  ECF No. 118.  Even rounding up to the nearest month and including good conduct credits, Defendant has served 167 months. That is a long stretch by any measure, and perhaps more than appropriate for Defendant's crimes.  Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an “extraordinary and compelling reason” for compassionate release.  Thus, despite discretion to consider a broad range of factors, the Court declines to grant Defendant's motion at this juncture.

This reasoning seems deeply misguided to me: Daniel Brown has not moved in this case for the First Step Act to be applied retroactively, because (disappointingly) Congress has not provided for the Act to be applied retroactively.  Rather, Brown has moved for a sentence reduction under § 3582(c)(1)(A) because Congress has provided for judges to be able to "reduce [his] term of imprisonment" if and whenever a judge finds "extraordinary and compelling reasons warrant such a reduction."  Judge Pratt suggests Brown has made such a showing and he even suggests that Brown has already served more time than is appropriate for his crimes.  But, still, Judge Pratt refuses to use the legal tool available to him to reduce Brown's sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.

Critically, though 18 U.S.C. § 3582(c)(1)(A) is often called a "compassionate release" provision, there is no requirement in the statute that a judge order a sentencing reduction in the form of a "time served" sentence.  All the statute says is that a judge is authorized to "reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that extraordinary and compelling reasons warrant such a reduction."  If Judge Pratt's concern was that section 3553(a) factors did not justify reducing Brown's sentence below 210 months, he still could have granted him relief by reducing his sentence from 510 to 210 months.

Because Judge Pratt used terms like "not yet" and "at this juncture" and "at this time," I am hopeful that Judge Pratt could and would entertain a renewed § 3582(c)(1) from Brown in four years when he has served 210 months of imprisonment.  Notably, there is no clear law right now about whether and when there are limits on how many times a defendant can bring a motion for sentence reduction pursuant to § 3582(c)(1)(A).  But since I think the law clearly supports granting his motion now, I am disappointed Judge Pratt did not exercise his discretion in this case in a manner similar to how he did in Gall.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

UPDATE:  I was able to secure a copy of the ruling in Brown, which can be accessed here: Download Brown Compassionate release

October 9, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Might as well face it, "we're addicted to jail"

156aa1d654fcab80912437f490d1ce5eWith apologies to Robert Palmer, this recent Hill commentary by David Oscar Markus has me wanting to riff on a rock classic:

Whoa, you like to think that we're a nation that's free, oh yeah
It's closer to the truth to say we can't let people be
You know you're gonna have to face it, we're addicted to jail

The last phrase of my tortured lyric here is the headline of the Hill commentary that should be read in full.  Here are its closing flourishes:

We issue jail sentences like candy, to address every known problem that we have.  Drug problem — jail.  Using your family member’s address to get your child into a better school — jail.  Paying college athletes — jail.  The United States jails more people than any other country in the world.  We have higher incarceration rates than Russia, Iran, and Iraq — by a lot.  We tolerate innocent people sitting in jail when we only suspect that they might have done something wrong, as one man did for 82 days when he brought honey into the United States.  82 days.

Even though oversleeping doesn’t seem to be a rampant problem, the judge in Deandre [Somerville]’s case admitted that he was trying to solve a broader jury “misconduct” issue with jail.  This is not how it should be.  The jail solution has become much worse than the diseases it was trying to cure. So what do we do about it?

One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary.  As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one).  A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government.  Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan.  Ohio State fans would never tolerate it.  And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.

In many cases, former prosecutors have never represented a person sentenced to jail.  They have never visited a client in jail.  They have never explained to a family — while the family cried — that their loved one is going to be taken from them.  As prosecutors, they have only put a lot of people in jail.  And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.

We have many problems in this great country, and our addiction to jail is high on the list.

October 9, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

"The Brain in Solitude: An (Other) Eighth Amendment Challenge to Solitary Confinement"

The title of this post is the title of this new paper recently posted to SSRN authored by Federica Coppola.  Here is its abstract:

Solitary confinement is not cruel and unusual punishment.  It is cruel and unusual if one or more of its accompanying material conditions result in a wanton and unnecessary infliction of pain upon an individual.  This requirement is met when such conditions involve a “deprivation of basic identifiable human needs” to an extent that they inflict harm or create a “substantial risk of serious harm” and they are enacted with “deliberate indifference” by prison personnel.  With limited exceptions, the Supreme Court and lower federal courts have perpetuated a narrow application of these standards. 

In particular, Courts have often discounted the generalized mental pain caused by extreme isolation.  Accordingly, Courts have often neglected the duration of solitary confinement as an autonomous aspect of constitutional scrutiny.  Growing neuroscientific research has emphasized that social interaction and environmental stimulation are of vital importance for physiological brain function.  It has further highlighted that socio-environmental deprivation can have damaging effects on the brain, many of which may entail irreversible consequences.  Drawing on these insights, this article suggests that solitary confinement is in and of itself cruel and unusual punishment even under the current standards.  Avenues for a profound rethinking of solitary confinement regimes are presented and discussed.

October 9, 2019 in Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (0)

October 8, 2019

US Attorney in college admission scandal makes plain how trial penalty works even for celebrity actresses

In various settings, we often hear expression of concern that celebrity criminal defendants may receive a different form of justice than us regular folk.  But this recent article reporting comments by the US Attorney in charge of the college admission prosecutions, headlined "Lori Loughlin faces 'substantially higher' prison sentence than Felicity Huffman if convicted, U.S. attorney confirms," provides a useful and usefully candid reminder that celebrity defendants are subject to being penalized for exercising their trial rights just like all other defendants. Here are excerpts from the piece (with two sentences emphasized):

Andrew Lelling, whose office is prosecuting the Operation Varsity Blues case, gave a rare interview over the weekend praising "classy" Felicity Huffman ahead of prison. He also confirmed that Lori Loughlin faces a "substantially higher" amount of time behind bars if convicted.

The Boston prosecutor, who was appointed U.S. attorney by President Trump in 2017, was asked why he proposed a prison sentence of only one-month for Huffman, who pleaded guilty to one charge of fraud conspiracy. During an interview with On the Record on WCVB Channel 5, Lelling called Huffman "probably the least culpable of the defendants who we've charged in that case."

"One of the things we looked at was money involved. She spent about $15,000 to have her daughter get a fake SAT score," he explained. "She took responsibility almost immediately.  She was contrite, did not try to minimize her conduct. I think she handled it in a very classy way and so, at the end of the day, we thought the one-month was proportional."

Ultimately, Huffman was sentenced to 14 days in prison, 250 hours of community service and a fine of $30,000. "I think the two weeks she actually got was also reasonable, we were happy with that," Lelling said. "I think it was a thoughtful sentence."

Lelling said a person receiving a lesser sentence after pleading guilty is "almost always" the outcome. "If people take responsibility for their conduct and they take responsibility for their conduct early on, then it will probably go better for them," he shared.  "What I value in the Felicity Huffman sentence is that I think it sent a clear message to the other parents involved that there really is a good chance that if you're convicted of the offense, you are going to go to prison for some period of time because the least culpable defendant who took responsibility right away, even she got prison."

Lelling was asked specifically about Lori Loughlin and her husband, Mossimo Giannulli, who are accused of paying around $500,000 to get their daughters into USC as crew recruits, even though neither rowed. He confirmed what legal experts speculated to Yahoo Entertainment last month — that Loughlin will spend more time in prison than Huffman if convicted.

"If she's convicted... we would probably ask for a higher sentence for her than we did for Felicity Huffman," Lelling said. "I can't tell you exactly what that would be. The longer the case goes, let's say she goes through to trial, if it is after trial, certainly, we would ask for something substantially higher. If she resolved it before trial, something lower than that."

Loughlin and Giannulli are some of the parents implicated in the college admissions scandal that are fighting the charges against them. They pleaded not guilty to two charges: conspiracy to commit money laundering; and conspiracy to commit mail and wire fraud and honest services mail and wire fraud.  They were hit with an additional charge when they didn't agree to a plea deal....

Loughlin, Giannulli and the other parents fighting federal charges are due back in court in January.

I do not want to unduly bash US Attorney Lelling for his candor here, especially because I think he merits praise for a lot of his work in these cases (and especially for only seeking a month in prison for Felicity Huffman).  Moreover, he does a reasonable job giving a reasonable spin to the best arguments for a "plea discount" at sentencing when he talks of the importance of being contrite and of the sentencing value of having defendants "take responsibility for their conduct early on." 

But I find it grating when US Attorney Lelling says his office will see a "substantially higher" sentence the "longer the case goes" for Lori Loughlin; it suggests that more is at work here than just rewarding remorse for those who are contrite.  Of course, to those familiar with the day-to-day realities of the criminal justice system, there is no surprise to seeing that potential exercise trial rights coming with a potentially significant sentencing price.  In the end, US Attorney Lelling is just being candid and honest about how the system really works for both celebrity and non-celebrity defendants.  But the fact that the trial penalty is so common and impacts more than just commoners still does not make it any less distasteful.

October 8, 2019 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Reviewing SCOTUS arguments on insanity defense and non-unanimous juries

As noted in this recent post, yesterday the Supreme Court kicked off its new Term with oral arguments in two very interesting criminal justice cases: Kahler v. Kansas on whether the Constitution permits a state to abolish the insanity defense, and Ramos v. Louisiana on whether the 14th Amendment fully incorporates for states the Sixth Amendment's guarantee of a unanimous jury verdict.  Here are the oral argument transcripts in Kahler and in Ramos.

Based on various reviews of the arguments, it sounds as though the defendant is likely to prevail in Ramos and perhaps not in Kahler.  Here is a round-up of some reviews:

From the AP, "Court seems ready to require unanimous juries as term opens"

From SCOTUSblog, "Argument analysis: Justices open new term with questions and concerns about insanity defense"

From SCOTUSblog, "Argument analysis: Justices weigh constitutionality of non-unanimous jury rule"

From Slate, "The Supreme Court Looks Poised to Outlaw Split Jury Verdicts"

From USA Today, "Supreme Court, trying to remain above the partisan fray, opens 2019 term with a debate about insanity"

October 8, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Offline: Challenging Internet and Social Media Bans for Individuals on Supervision for Sex Offenses"

The title of this post is the title of this new article authored by Jacob Hutt now available via SSRN.  Here is its abstract:

Tens of thousands of people across the United States are subject to bans on their Internet and social media access due to sex offense convictions.  This Article explains why, even for those on parole and probation, such bans are frequently over-broad, imposed on the wrong people, and are now ripe for challenge in light of the Supreme Court’s 8-0 decision in Packingham v. North Carolina

The first flaw with these bans is their mismatch between crime and condition.  They are imposed on individuals whose criminal records have no relation to online predatory activity or manipulation of minors.  The second flaw is their extreme over-breadth.  Rather than merely proscribing speech with minors or access to certain online forums, they cordon off the Internet itself, ostracizing offenders to an offline society.  While these flaws rendered Internet and social media bans constitutionally problematic before the Packingham decision, the Supreme Court’s imprimatur on free speech for individuals convicted of sex offenses could — and should — lead the way to future legal challenges of these bans.

October 8, 2019 in Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (1)

October 7, 2019

Series of state court stays slows down Texas machinery of death

Texas has completed seven executions in 2019 through the end of September, and it had four more executions scheduled for October. But, as of late last week, state courts in Texas have halted the executions of three of the condemned prisoners who were facing October execution dates. Here are links to press reports on these three stays:

From the Texas Tribune, "Texas court halts the execution of Stephen Barbee to consider U.S. Supreme Court precedent: The Texas Court of Criminal Appeals issued a stay in Barbee's case. He was scheduled to be executed Oct. 2."

From the Texas Tribune, "Judge halts execution for man convicted of killing two Henderson County deputies: Randall Mays was scheduled to be executed Oct. 16, but the judge removed the death warrant amid questions that Mays may not be mentally competent to be put to death."

From the Dallas Morning News, "Texas Seven's Randy Halprin has execution stayed after attorneys allege judge was anti-Semite: Halprin, one of seven men who escaped from the John B. Connally Unit on Dec. 13, 2000, was scheduled to die Thursday for his role in the slaying of Irving police officer Aubrey Hawkins." 

Because Texas has five more executions already scheduled for the rest of 2019, the state is still likely on pace for another double-digit execution year. But it now seems likely that the state will have fewer executions than the 13 it had last year, and it is now possible that the US as a whole will end up with fewer total executions in 2019 than occurred in 2018.

October 7, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another update on Chicago "stash-house sting" litigation showcasing feds ugly drug war tactics

Via a series of posts last year, I was able to report updates from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this 2017 post, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic. 

I now see that the Chicago Tribune has this new lengthy article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison." which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full, and here are excerpts:

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison. He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decadeslong prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary.

Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.

The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling. While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

While the cases hadn’t been thrown out of court, Alison Siegler, the Federal Criminal Justice Clinic’s founder, noted in an April report to the 7th Circuit Bar Association that "the U.S. Attorney’s Office and the ATF have entirely stopped bringing stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere in the country.”

Some prior related posts:

October 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

So many cert denials, and lots of Davis and Rehaif GVRs, in first big SCOTUS order list of OT19

The Supreme Court this morning has released this 78-page order list that resolves lots and lots of the cases that pile up at the Court during its summer recess.  The list of cases in which certiorari has been denied runs dozens of pages, and I was a bit surprised that this order list does not have any statements from any Justices about any of these denials.  (In all likelihood, any cases the Justices thought debatable have been relisted for possible comment in later order lists.)

The order list start with a long list of cases in which "certiorari is granted, [t]he judgment is vacated, and the case is remanded" to the relevant Court of Appeals." The vase majority of the GVRs cite the Supreme Court's work in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here) and Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here).  These GVRs are not surprising, as I wondered aloud in this post back in June about the likely mess and challenge that Davis and Rehaif  surely presented for lower courts.  As is their custom, the Justices are eager to send cases back to the lower courts to start the clean up effort.

October 7, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

October 6, 2019

Lots of SCOTUS previews as a new Term starts with a criminal bang

Tomorrow morning is the first Monday in October, which means the start of Supreme Court oral arguments kicking off a new Term for the Court. This ABA Journal piece, headlined "SCOTUS opens new term with criminal law cases addressing insanity defense and unanimous juries," highlights how the Term start with extra intrigue for criminal justice fans. This piece starts this way:

The U.S. Supreme Court has several blockbuster cases in its new term — on gay and transgender rights, federal immigration enforcement and gun regulation. But before it gets to any of those, the court on the first day of the term will take up two criminal law cases raising significant questions, even though only a handful of states are affected by each.

In Kahler v. Kansas, the first case up for argument on Oct. 7, the question is whether the U.S. Constitution permits a state to abolish the insanity defense. Only four states besides Kansas—Alaska, Idaho, Montana, and Utah—do not recognize that defense.

In Ramos v. Louisiana, the justices will consider whether the 14th Amendment fully incorporates against the states the Sixth Amendment’s guarantee of a unanimous jury verdict.

“Both of these cases speak to a larger lesson,” says Brian W. Stull, a senior staff attorney with the American Civil Liberties Union. “The court, with justices on the left, center, and right, has been vigilant in insisting at a minimum on the common-law protections that defendants enjoyed at time of the founding.”

SCOTUSblog has these previews of Kahler and Ramos:

Bloomberg Law has this preview article looking at a number of the criminal cases for the term under the headline "Bridgegate, D.C. Sniper Feature in Packed SCOTUS Criminal Term."  Here is how it starts:

An action-packed U.S. Supreme Court term kicks off Oct. 7, and the criminal docket has a little something for everyone—the insanity defense, the D.C. sniper, the death penalty, the Fourth Amendment, and the New Jersey corruption saga known as “Bridgegate.”

These disputes and others mark the latest crime and punishment tests for the Roberts Court, which, after Justice Brett Kavanaugh replaced Justice Anthony Kennedy, is on more solid conservative footing.

But criminal cases can scramble the usual 5-4 line-ups, and in Kavanaugh’s first full term — Justice Neil Gorsuch’s third — court watchers are eager to see how the justices tackle these weighty questions.

October 6, 2019 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Association of Restrictive Housing During Incarceration With Mortality After Release"

The title of this post is the title of this disconcerting new research by multiple authored just published via JAMA Network Open.  Here is its abstract:

Importance Restrictive housing, otherwise known as solitary confinement, during incarceration is associated with poor health outcomes.

Objective To characterize the association of restrictive housing with reincarceration and mortality after release.

Design, Setting, and Participants This retrospective cohort study included 229 274 individuals who were incarcerated and released from the North Carolina prison system from January 2000 to December 2015.  Incarceration data were matched with death records from January 2000 to December 2016.  Covariates included age, number of prior incarcerations, type of conviction, mental health treatment recommended or received, number of days served in the most recent sentence, sex, and race.  Data analysis was conducted from August 2018 to May 2019.

Exposures Restrictive housing during incarceration.

Main Outcomes and Measures Mortality (all-cause, opioid overdose, homicide, and suicide) and reincarceration.

Results From 2000 to 2015, 229 274 people (197 656 [86.2%] men; 92 677 [40.4%] white individuals; median [interquartile range (IQR)] age, 32 years [26-42]), were released 398 158 times from the state prison system in North Carolina.  Those who spent time in restrictive housing had a median (IQR) age of 30 (24-38) years and a median (IQR) sentence length of 382 (180-1010) days; 84 272 (90.3%) were men, and 59 482 (63.7%) were nonwhite individuals.  During 130 551 of 387 913 incarcerations (33.7%) people were placed in restrictive housing.  Compared with individuals who were incarcerated and not placed in restrictive housing, those who spent any time in restrictive housing were more likely to die in the first year after release (hazard ratio [HR], 1.24; 95% CI 1.12-1.38), especially from suicide (HR, 1.78; 95% CI, 1.19-2.67) and homicide (HR, 1.54; 95% CI, 1.24-1.91). They were also more likely to die of an opioid overdose in the first 2 weeks after release (HR, 2.27; 95% CI, 1.16-4.43) and to become reincarcerated (HR, 2.16; 95% CI, 1.99-2.34).

Conclusions and Relevance This study suggests that exposure to restrictive housing is associated with an increased risk of death during community reentry.  These findings are important in the context of ongoing debates about the harms of restrictive housing, indicating a need to find alternatives to its use and flagging restrictive housing as an important risk factor during community reentry.

October 6, 2019 in Detailed sentencing data, Prisons and prisoners | Permalink | Comments (0)

Encouraging new data on reduced arrests for low-level offenses (while national crime rates continue to decline)

This new Wall Street Journal article gets my week off to an encouraging start.  The full headline of the piece sets for the essentials: "Arrests for Low-Level Crimes Are Plummeting, and the Experts Are Flummoxed: Data collected from U.S. cities revealed declines in driving and alcohol-related violations, disorderly conduct, loitering and prostitution." Here are excerpts:

Major police departments around the country are arresting fewer people for minor crimes, according to a growing body of criminal justice data. New statistical studies show a deep, yearslong decline in misdemeanor cases across New York and California and in cities throughout other regions, with arrests of young black men falling dramatically.

New York City’s misdemeanor arrest totals have fallen by half since peaking in 2010, with rates of black arrests sinking to their lowest point since 1990. The arrest rate for black men in St. Louis fell by 80% from 2005 to 2017, a period that saw steep declines in simple assault and drug-related offenses. In Durham, N.C., arrest rates for blacks fell by nearly 50% between 2006 and 2016.  While racial disparities in enforcement persist, researchers say they are surprised by the downward misdemeanor trend, which pushes against ingrained assumptions about overpolicing in urban areas.

At the moment, experts can only speculate about what’s behind the decline.  It is expected to be the subject of more study that could yield better understanding in the future. Some say the falling arrest rates signal a fundamental shift in crime prevention. The shrinking misdemeanor system, they say, is evidence that police departments are pulling back on sweeping quality-of-life enforcement and focusing instead on “hot spots,” neighborhood strips and streets with clusters of gun violence and gang activity.

The decline, some experts say, could also be driven by technologies like the internet and mobile phones that help to keep social interaction off the streets and inside homes. The growing decriminalization and legalization of marijuana has also contributed, they say.  “The enforcement powers of the police are being used far less often,” said Jeremy Travis, a former president of John Jay College of Criminal Justice in Manhattan. It is a “very deep reset of the fundamental relationship between police and public.”

Millions of Americans are swept into the misdemeanor system every year, but only recently have scholars sought to dig into the numbers of low-level crime. Criminal data and research have focused on violent felonies like rape and murder and more serious drug-dealing offenses, while statistics on misdemeanors have been notoriously inconsistent and spotty.

Historically, few jurisdictions made it possible to track how many people were arrested for crimes like turnstile jumping, disorderly conduct, marijuana possession, shoplifting, trespassing, drunken-driving and fist fight assaults.  Federal investigations into policing practices in Ferguson, Mo., and Baltimore, and scrutiny of aggressive policing tactics like “stop-and-frisk,” helped to raise the visibility of misdemeanor justice and its impact on poor minority communities.  Most defendants charged with petty offenses serve little or no time behind bars but pay court fines and fees or get their cases conditionally dismissed.

Researchers saw misdemeanors as another unchecked, racially unbalanced police power creating barriers to housing, employment and education.  With millions of dollars in grants, a network of scholars led by John Jay collected data from several cities and released reports over the past year.  Other studies revealed similar patterns.  A December report by the Public Policy Institute of California found that misdemeanor rates in California declined by close to 60% between 1989 and 2016.  Los Angeles police made 112,570 misdemeanor arrests in 2008 and 60,063 by 2017, largely driven by declines in driving and alcohol-related offenses, according to John Jay’s research network.

A forthcoming paper by law professors at George Mason University and the University of Georgia also found sizable arrest declines in rural Virginia, San Antonio and other jurisdictions.  Other indications include shrinking caseloads reported by the National Center for State Courts and arrest tallies by the Federal Bureau of Investigation showing steady declines in disorderly conduct, drunkenness, prostitution and loitering violations....

Compared with the felony system, misdemeanor enforcement is much less sensitive to actual crime rates and more influenced by changing political and cultural winds, says Alexandra Natapoff, a University of California-Irvine law professor.

In addition to the great news that we are finally gathering better data on misdemeanor systems, it is even greater news that we are using it less. In this post some months ago, I spotlighted LawProf Alexandra Natapoff's terrific book highlighting how much harm and punishment can come with the misdemeanor process.  And, though not mentioned in the WSJ article, I think it critical to note that the reduction in low-level arrests has come at the same time as a great reduction in violent and property crimes over the last decade (details here on latest FBI crime data).  I think we all ought to hope and aspire for a world with less crime and less punishment, and that seems to be what we are starting to achieve in recent years.

October 6, 2019 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)