« October 27, 2019 - November 2, 2019 | Main | November 10, 2019 - November 16, 2019 »

November 8, 2019

Latest Harvard Law Review SCOTUS issue gives criminal justice its due

As all law geeks know, the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work.  And as all long-time readers know, I have often been disappointed when the November SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work. 

But, providing another exciting sign of the criminal justice times, the latest HLR issue, which is now available online here, gives criminal justice reform its due.  Specifically, the Foreword authored by Dorothy Roberts is titled "Abolition Constitutionalism" and it aspires to provide a "sustained analysis of the relationship between the prison abolition movement and the U.S. Constitution."  And Rachel Barkow has in this issue this lengthy commentary titled "Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing."

In addition, a handful of OT 2018 SCOTUS criminal cases got case comments in this issue:

I know what extra reading I am looking forward to doing over a holiday weekend!

November 8, 2019 in Mandatory minimum sentencing statutes, Prisons and prisoners, Recommended reading | Permalink | Comments (1)

Spotlighting again how the Justice Department is resisting broad applicability of certain FIRST STEP Act provisions

In this post from July, I noted this Reuters article on some of the court skirmishes over the crack sentencing retroactivity provisions of the FIRST STEP Act.  That piece carried this headline: "As new U.S. law frees inmates, prosecutors seek to lock some back up."  Now the Washington Post has this lengthy piece in a similar vein under this headline: "Trump boasts that his landmark law is freeing these inmates. His Justice Department wants them to stay in prison." I recommend the piece in full, and here are excerpts:

The gathering in April was a triumphant celebration of the First Step Act, the most sweeping overhaul of the federal criminal justice system in a generation. Since its passage nearly a year ago, the law has led to the release of more than 3,000 inmates — including [Gregory] Allen, who was convicted of cocaine trafficking in 2001.

The Justice Department, though, had never wanted to let Allen out of prison. In fact, even as he and Trump shared a joyous embrace on television, federal prosecutors were trying to persuade a judge to put Allen back behind bars.

The president has repeatedly pointed to the First Step Act as one of his administration’s chief bipartisan achievements and one for which he is personally responsible. But cases like Allen’s expose a striking rift between the White House allies who supported the law and the Justice Department officials now working to limit the number of inmates who might benefit from it.

“DOJ is pushing against the will of the people, the will of Congress, the will of the president,” said Holly Harris, a conservative activist and leader of the Justice Action Network who worked with Congress and the White House to pass the law. Harris noted that, before the law’s passage, then-Attorney General Jeff Sessions was a vocal critic of reducing prison sentences. His successor, William P. Barr, expressed similar reservations before his appointment.

The First Step Act aims to lessen long-standing disparities in punishment for nonviolent drug offenses involving crack cocaine. Having five grams of crack, a form of cocaine that is more common among black drug users, used to carry the same mandatory minimum sentence as having 500 grams of powder cocaine, which is more common among white drug users.

But federal prosecutors are arguing in hundreds of cases that inmates who have applied for this type of relief are ineligible, according to a review of court records and interviews with defense attorneys. In at least half a dozen cases, prosecutors are seeking to reincarcerate offenders who have been released under the First Step Act.

The department has told federal prosecutors that when determining whether to challenge an application for early release, they should consider not the amount of crack an inmate was convicted of having or trafficking — but rather the amount that court records suggest they may have actually had, which is often much larger.

A Justice spokesman, Wyn Hornbuckle, defended that interpretation, though he declined to discuss the department’s guidance to prosecutors or to say when it was disseminated. He did not respond to questions about the split between the department and the White House allies who pushed for the law. Hornbuckle said that in years past, prosecutors could secure lengthy prison sentences without having to prove an offender had large amounts of drugs. Under today’s laws, he said, those same offenders would probably be charged with crimes involving larger quantities. “The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” Hornbuckle said. “This is a fairness issue.”

In the vast majority of cases reviewed by The Washington Post, judges have disagreed with the Justice Department’s interpretation. Some of the people involved in writing the legislation also disagree, including Brett Tolman, a former U.S. attorney in Utah. He and other supporters of the law note that the text of the legislation does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had. “This is not a faithful implementation of this part of the First Step Act,” said Tolman, who was appointed by President George W. Bush. “At some point, they figured out a way to come back and argue that it wouldn’t apply to as many people.”

Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee, accused the Justice Department at a congressional hearing last month of “trying to sabotage” the law by interpreting it in this way. Sen. Mike Lee of Utah, a key Republican sponsor of the law, declined to comment on the department’s stance on inmate eligibility but told The Post he had concerns about how other aspects of the law are being implemented. “It would be a shame if the people working under the President failed to implement the bill as written,” Lee said in a recent statement to The Post....

“The people that did the deal, including President Trump, wanted to help guys like me,” said Allen, 49, whose case was mentioned in a Reuters story in July about efforts by some prosecutors to clamp down on First Step Act relief. “But on the flip side, you have federal prosecutors who wake up every day trying to keep guys like me locked up.”...

The First Step Act was championed by a bipartisan coalition that spanned the political spectrum, from the conservative megadonor Koch brothers toracial-justice activist Van Jones. The legislation forbids federal jailers from shackling pregnant inmates and grants judges new powers to free sick and elderly prisoners. One of the most consequential parts of the law was the provision allowing federal inmates such as Allen to apply for early release. The mandatory sentencing policies those offenders faced are among the factors that have led the United States to incarcerate more people than any other nation, experts say....

Trump has made criminal justice reform a chief talking point in recent months, and several of his advisers — including Kushner — believe it could play an important role in his reelection bid, said Doug Deason, a prominent donor to the Trump campaign. A senior campaign official added that the Trump campaign plans to tout the First Step Act in the hopes of attracting black voters in key states such as North Carolina and Florida.

The legislation has earned Trump goodwill from unlikely corners, something he craves amid an impeachment inquiry. Last week, he beamed onstage in Columbia, S.C., as he was presented with an award from a bipartisan advocacy group of black elected officials. “I told him, ‘You ought to go and get that award,’” Sen. Lindsey O. Graham (R-S.C.) said in an interview. “There ain’t many people giving you an award these days.”

Backstage, Trump talked up the idea of another such law, asking Steve Benjamin, the city’s mayor, whether he should call it the Second Step Act, the mayor recalled. Yet even as Trump toasts himself for the legislative victory, defense attorneys and advocates are frustrated that the White House is not doing more to ensure that the law is implemented as intended.

“The irony of this administration working against itself is mind-boggling,” said Brittany Barnett, a defense attorney who has worked on several of the First Step Act cases championed by Kardashian. “Especially with lives on the line.”

In the weeks after the bill became law, many federal prosecutors allowed inmate petitions for early release to go unchallenged. Then, at the direction of officials in Washington, prosecutors began to reverse course, court records show. In March, Assistant U.S. Attorney Jennifer Bockhorst asked federal judges in West Virginia to place a hold on more than two dozen applications for relief — some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the Justice Department.

In a brief phone interview, Bockhorst said the government shutdown that began soon after the bill passed and lasted until late January delayed the guidance from Washington. “We didn’t have the benefit of any kind of coordinated position,” she said. Similar reversals took place in New York, where prosecutors agreed in April that certain inmates were eligible — only to change their position in May. In one case, a judge found the reversal striking enough to ask what prompted it.

Prior related post:

November 8, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

November 7, 2019

Any "hot takes" on how a Trump judiciary might be changing sentencing law and practice?

The question in the title of this post is prompted by milestones reached and celebrated by the Trump Administration yesterday.  This Bloomberg article, headlined "Trump Boasts of GOP Success Confirming His Judicial Nominees," provides some background:

President Donald Trump celebrated Republicans’ record on confirming federal judges on Wednesday, saying his administration has done better than any other in terms of “quality and quantity” of judges appointed to the bench....

The president’s comments came as the U.S. Senate is set to confirm Trump’s 45th circuit judge this week.  With that vote, he will have appointed about a quarter of all appeals court judges.

Trump has won confirmation of a total of 158 federal judicial nominees, including Supreme Court justices Brett Kavanaugh and Neil Gorsuch.  The president, who on Wednesday named 10 additional judges he intends to nominate, is likely to see more win approval this year than during the first two years of his presidency combined.

The pace of confirmation far exceeds those of his immediate predecessors, a fact that Trump routinely notes in public comments.  The GOP’s Senate majority leader, Mitch McConnell, has leveraged his party’s control of the chamber to flood the federal courts with Trump’s picks.

The appointments have led to the Third Circuit Court of Appeals -- which hears cases from Pennsylvania, New Jersey and Delaware -- flipping from a majority of judges appointed by Democratic presidents to a majority appointed by Republicans.  By the end of the year, similar changes are likely in the Second Circuit, which includes New York, Connecticut and Vermont, and the Eleventh Circuit, which covers Alabama, Florida and Georgia.

During President Barack Obama’s second term, McConnell held up nominees -- including a Supreme Court vacancy created by Justice Antonin Scalia death in 2016 -- leaving 86 district court vacancies and 17 circuit court vacancies for Trump to fill.  Trump has repeatedly mocked Obama for leaving the positions unfilled....

“Nobody has done more to change the court system in the history of our country than Donald Trump,” McConnell said Monday at a rally in his home state of Kentucky with the president. “And Mr. President, we’re going to keep on doing it.  My motto is: Leave no vacancy behind.”

Because "the court system" plays a fundamentally central role in federal sentencing decision-making, if Prez Trump's nominees are dramatically changing the court system in our country then one might expect to also see a dramatic change in sentencing law and practice.  But I do not sense there has been major change in this arena (though I do not follow lower court rulings in this space quite as closely as I did in the immediate post-Booker days).

Of course, the jury is still out on how Justices Gorsuch and Kavanaugh will impact SCOTUS sentencing jurisprudence as replacements from Justices Scalia and Kennedy.  But SCOTUS decides so few sentencing cases while the circuit courts decide so many, and district judges do all the actual sentencing.  And so I keep gravitating to the idea that a Trump judiciary might well be changing sentencing law and practice.  But does anyone think the Trump judges actually are making a big difference?

November 7, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

"Taking a second look at life imprisonment"

The title of this post is the headline of this notable new Boston Globe commentary authored by Nancy Gertner and Marc Mauer. Here are excerpts:

While there has been a great deal of attention in recent years to the impact of the drug war on growing prison populations, in fact, the main drivers of the prison system now are excessive sentences for violent offenses.

The statistics are troubling.  There are as many individuals [in Massachusetts] serving life sentences as the entire state prison population in 1970, and more than half are black or Latino. Of the 2,000 lifers in the state, about half are not eligible for parole.  Barring executive clemency, they will die in prison after spending decades behind bars.

Since 90 percent of lifers nationally have been convicted of serious violent crimes, supporters of lifelong incarceration argue that incapacitating such people is an effective crime-control mechanism.  In fact, it is the opposite: It is counterproductive for public safety.

Criminologists know that individuals “age out” of crime.  Any parent of a teenager understands that misbehavior, often serious, is all too common at this stage.  FBI arrest data show that the rate of arrest for teenage boys rises sharply from the mid-teen years through the early 20s but then declines significantly. Arrests for robbery, for example, peak at age 19 but decline by more than half by age 30 and by three-quarters by age 40. The same is true for other violent crimes.

The reason is clear.  As teenage boys enter their 20s, they lose their impulsivity, get jobs, find life partners, form families, and generally take on adult roles.  Violent behavior becomes less attractive.

For public safety purposes incarcerating people past age 40 produces diminishing returns for crime control; less and less crime is prevented by incapacitation each year.  This impact is magnified by resource tradeoffs.  National estimates for the cost of incarcerating an elderly person are at least $60,000 a year, in large part due to the need for health care.  With finite public safety resources, these costs are not available to invest in family and community support for the new cohort of teenagers, for whom proactive initiatives could lower the risk of antisocial behavior.

Legislation introduced by Representative Jay Livingstone of Boston and Senator Joe Boncore of Winthrop, along with 34 cosponsors, would help to ameliorate this problem in Massachusetts.  Under the bill’s “second look” provision, individuals serving life without parole would be eligible for a parole review after serving 25 years....

Recently, there has been a bipartisan critique of the effects of mass incarceration, particularly on low-income communities of color.  State policy makers across the country are exploring ways to reduce excessive prison populations without adverse effects on public safety.  The proposed “second look” provision offers one significant alternative.  It should be passed.

November 7, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Lots of capital headlines from the Lone Star State

Texas is always making news when it comes to the administration of the death penalty, and yesterday had a number of notable headlines about a number of notable cases:

An execution: "El Paso death row inmate Justen Grant Hall executed for woman's strangulation in 2002"

A removal from death row: "Bobby Moore's death sentence is changed to life in prison after lengthy court fights over intellectual disability"

Increasing attention to innocence claim for person scheduled to be executed Nov 20: "Texas is about to execute a man for murder. His lawyers say someone else confessed to the crime."

UPDATE:  A helpful reader made sure I did not miss another notable Texas capital headline today:

A stay: "Federal judge delays execution of “Texas Seven” prisoner over claims of religious discrimination"

 

November 7, 2019 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

November 6, 2019

Notable Wall Street Journal commentaries decry injustices highlighted by college admission scandal prosecutions

I have blogged a lot about the college admission scandal prosecutions because they provide a high-profile setting for shinning a bright light on some ugly features of criminal justice in America.  The Wall Street Journal editors this week have been eager to do such light-shinning as evidenced by these two notable new commentaries in its pages:

Authored by William McGurn, "Free Lori Loughlin: The feds are treating the actress as if she and her husband were Bonnie and Clyde." Some excerpts:

If convicted of all the charges federal prosecutors have piled up against them, Ms. Loughlin and her husband could be sentenced to as much as 45 years in prison.  This is nuts.

The same operation that caught Ms. Loughlin also snared dozens of other high-powered people, including CEOs, lawyers and venture capitalists.  They too are accused of paying fixer William “Rick” Singer either to cheat on their kids’ college entrance exams, to present them fraudulently for college admission as athletes, or both.  But Ms. Loughlin’s celebrity status has ensured that she and fellow actress Felicity Huffman remain the face of the scandal for most Americans.

With this difference: While Ms. Huffman pleaded guilty, apologized profusely and served out her sentence (14 days, but released after 12 because it was a weekend) at the Federal Correctional Institution in Dublin, Calif., Ms. Loughlin and Mr. Giannulli are insisting, perhaps unwisely, on taking their case to a jury.  Meanwhile, in the same way the sans-culottes jeered Marie Antoinette on her way to the guillotine, today’s equivalent — Twitter mobs and gossip sheets — are thirsting to see this icon of Tinseltown wealth and privilege cut down to size by a stint in federal prison.

Now, it may well be standard procedure for prosecutors to add new charges when their targets refuse to plead. But does anyone else think it a stretch to argue that two California residents bribing their children’s way into a private California university are committing a crime against the federal government? Or that the statutes she’s accused of violating, such as bribery or money laundering in connection with a program that receives federal funding, were really intended to go after people such as Ms. Loughlin?

All of which has yours truly hoping Ms. Loughlin and her husband prevail. Not because they are innocent. But because the case reeks of overreach, as well as my unease with the idea that the FBI and Justice are the vehicles to deliver fairness in college admissions....

There are many ways to punish Ms. Loughlin. Some of them have already happened even without a conviction: The Hallmark Channel severed all ties; Netflix will film the last season of the reboot “Fuller House” without her; and her daughters were forced to leave USC under humiliating circumstances.  Ms. Loughlin, remember, is a nonviolent first-offender.  By all means, stick her with a fat fine and community service. But it’s just overkill for federal prosecutors to be devoting so much of their time and resources to make sure this woman goes to prison.

Authored by Alan Dershowitz, "Most Plea Bargains Are Unconstitutional: Harsh punishments for defendants who exercise their right to trial violate the Sixth Amendment." Some excerpts:

When is a constitutional right not a right? When you’re punished for exercising it.  If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say.  Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual — even by the Supreme Court.

In my own practice I’ve seen cases in which defendants declined a plea bargain, were convicted, and received sentences more than 10 times as severe as prosecutors had offered them.  A doctor was offered one year if he pleaded guilty to Medicaid fraud and received 11 years at trial.  He rejected the plea offer because he believed he was innocent and had expert testimony to back him up.  In another case, two businessmen accused of financial fraud were offered sentences of seven years and sentenced to 80 years after a trial....

Or consider two actresses charged in the college-admissions scandal. Felicity Huffman received 14 days after waiving a trial. Lori Loughlin could face as long as 45 years (although likely less) if she exercises her right to go to trial. The prosecutor has been clear: “If it’s after trial, we would ask for something substantially higher. If she resolves it before trial, something lower than that.”

In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.”  Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial.  As the Supreme Court put it: “We cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State” (emphasis added).

Yet imagine if the government, instead of directly punishing disfavored speech, accomplished the same objective in a roundabout way by offering a tax rebate for people who waive their First Amendment rights.  Any judge would see through the maneuver.  So why do the courts invoke the same meaningless distinction when it comes to the right to trial?

Because more than 90% of defendants waive the right to trial, usually for fear of the trial penalty.  If the penalty were held unconstitutional, it could overwhelm the system.  But is that a good enough reason to trample a constitutional right?  Under America’s Constitution, rights are the absolutes to which practical considerations must adapt.  We can build more courthouses and appoint more judges and prosecutors to accommodate the right to trial.  We can also decriminalize many actions that are today treated as crimes, beginning with drug use....  

The time has come to end the unconstitutional trial penalty.

November 6, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

"Acquitted Conduct Should Not Be Considered At Sentencing"

The title of this post is the title of this notable recent Law360 commentary authored by Robert Ehrlich, the former governor of Maryland. I recommend the full piece, and here are excerpts:

John Adams famously declared, “Representative government and trial by jury are the heart and lungs of liberty." Indeed, given the role the jury trial plays in our modern criminal justice system.

The jury trial was designed as an indispensable structural check on government. A safeguard the framers of the Constitution considered so paramount to a free people that it was enshrined in the Sixth Amendment.

Trial by jury is essential to preserving liberty because it protects individuals from arbitrary use of government power by allowing the people to act independently of the state. Accordingly, upholding the people’s role in the administration of justice is foundational to upholding the purpose of this procedural guarantee.

Against this background, U.S. Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, recently introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019. The bill seeks to address the insidious practice known as acquitted conduct sentencing, wherein a judge enhances a sentence based on conduct underlying charges for which a defendant has been acquitted by a jury.

You read that correctly. Under current law, federal judges are permitted to sentence individuals based on charges for which a jury found them not guilty....

Lower standards of proof at sentencing — in conjunction with 18 U.S.C. Section 3661, legal precedent and application of the guidelines — means that federal judges may consider a wide array of relevant conduct in determining a defendant’s sentence, including conduct for which underlying charges have been acquitted by a jury. While the Supreme Court determined acquitted-conduct sentencing did not violate the double jeopardy clause in Watts, the court has never addressed whether the Sixth Amendment right to a trial jury prohibits the practice....

The bottom line: Acquitted-conduct sentencing effectively divests individuals of their Sixth Amendment right to trial-by-jury by divesting citizens of their historical and constitutional role in the administration of criminal justice.

While a defendant remains “not guilty” on paper, the sentencing judge’s veto of the jury’s verdict renders the acquittal meaningless for all practical purposes. Consideration of acquitted conduct at sentencing effectively eliminates the democratic role of the jury in the criminal justice system, inverting the power structure to allow government to limit the people rather than people to limit the government.

Acquitted-conduct sentencing is an affront to individual liberty, and judicial or legislative action would be welcome responses to the unconstitutional practice. The Prohibiting Punishment of Acquitted Conduct Act would amend 18 U.S.C. Section 3661 to explicitly preclude federal courts from considering acquitted conduct at sentencing, except as a mitigating factor. Congress should advance this simple reform to restore the Constitution’s basic guarantees of due process and the right to trial by jury.

A few of many recent and prior related posts on the acquitted conduct:

November 6, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

November 5, 2019

Very different looks on criminal justice reform for governors in Oklahoma and New York

As spotlighted in prior posts here and here and here, Oklahoma this week saw a series of interesting and important criminal justice reform efforts culminate in the release of more than 400 prisoners as part of the largest mass commutation in U.S. history (details here).  Thanks to Twitter, I saw this video clip of persons being released from the Eddie Warrior Correctional Center.  Notably, in addition to being greeted by friends and families, the released individuals also saw Governor Kevin Stitt and First Lady Sarah Stitt awaiting their release to congratulate them.

Not long after I saw this video and the heartening involvement of Oklahoma Governor Stitt in this historic criminal justice reform story, I saw this press article discussing the disheartening work of New York Governor Cuomo is a much more discouraging criminal justice story.  The piece is headlined "Gov. Cuomo's Program for More Clemency Applications Appears to Stall, As Prisoners Wait and Hope for a Second Chance," and here are excerpts:

Governor Andrew Cuomo’s program to help more prisoners apply for clemency in New York State appears to be stalled and the Governor’s office is declining to explain why.

In 2017, Cuomo asked lawyers to volunteer to help identify prisoners worthy of his mercy, and assist them in making their best case for a shortened sentence. More than two hundred lawyers stepped up. But two years and thousands of pro bono hours later, Governor Cuomo has neither approved nor denied any of the 107 clemency applications filed through the program.

“It’s discouraging. We’ve put a lot of resources into it.” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, which partnered with Families Against Mandatory Minimums and the State at the Governor’s request. “We put people away for ridiculous amounts of time, often for mistakes they made when they were very young,” Reimer added.

Lawyers involved in the NACDL/FAMM project tell News 4 because there has been no action in these cases, they are reluctant to take on new prisoners. More than 1,600 prisoners are currently waiting to be assigned attorneys through the project. “The idea that you can’t find a single one of those to grant is inconceivable to me. There’s just no greater feeling than giving somebody freedom,” said NYU Law Professor Rachel Barkow and author of "Prisoners of Politics."

The power to commute a prisoner’s sentence rests solely with the Governor. NACDL says the Cuomo administration has been highly cooperative, producing records and helping to vet cases.

Cuomo administration insiders familiar with the clemency review process say the problem is not that these cases are being ignored. Sources with first hand knowledge say the cases submitted by NACDL/FAMM were carefully reviewed by a team of attorneys inside the office of the Counsel to the Governor. They say the team identified a group of worthy candidates for a possible mid-year clemency grant this past Spring, but the Governor did not act.

Timing, they speculated, may have played a role, citing pushback from some law enforcement groups for Cuomo’s role in the early release of Judith Clark in May 2019. Clark was the getaway driver in the deadly 1981 Brink’s robbery and the Governor commuted her sentence to make her eligible for early parole. One person who has discussed the project at length with the Governor’s senior staff described a sense that politically speaking, “the bang was not worth the buck.”

Several sources familiar with the internal review process say the Governor’s office may have been taken aback by the large number of applications lawyers submitted on behalf of prisoners who committed violent felonies. These cases are more politically sensitive for a governor, because it is not uncommon for district attorneys, law enforcement groups and family members of victims to oppose early release.

But Norman Reimer says if the severity of the crimes is the reason for Cuomo’s inaction, that’s not how the governor’s office promised to approach this process. “What I like about Governor Cuomo’s initiative is he didn’t limit it based on the nature of the crime," said Reimer. "We pressed that issue and it was an affirmative decision by them to let the person’s record of rehabilitation speak the loudest, even in violent crimes.”

Governor Cuomo’s office did not respond to repeated requests for an explanation for his inaction on the NACDL/FAMM cases, nor for a breakdown of the clemency grants he has issued. According to public reports, Cuomo has commuted at least 18 sentences in almost nine years, including three in 2018.

Barkow says compared with some other Democratic governors, Cuomo has used his executive clemency powers sparingly. Gavin Newsom of California commuted the sentences of 23 prisoners since September of this year, including prisoners involved in violent felonies....

In last year's primary, the progressive wing of the Democratic party hammered Cuomo for what they considered insufficient criminal justice reforms. “The people who care about these issues want to see real results,” said Professor Barkow. “They want to see that people are walking the walk and not just kind of throwing talk out there.” As for Cuomo’s record on justice issues like clemency and marijuana legalization, Barkow added “It seems like the pattern is to wait and just make sure where the political winds are blowing.”

November 5, 2019 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Is the ‘War on Drugs’ Over? Arrest Statistics Say No"

The title of this post is the title of this new New York Times Upshot piece by Susan Stellin. Here are excerpts:

Despite bipartisan calls to treat drug addiction as a public health issue rather than as a crime — and despite the legalization of marijuana in more states — arrests for drugs increased again last year.

According to estimated crime statistics released by the F.B.I. in September, there were 1,654,282 arrests for drugs in 2018, a number that has increased every year since 2015, after declining over the previous decade. Meanwhile, arrests for violent crime and property crime have continued to trend downward.

Drugs have been the top reason people have been arrested in the United States for at least the past 10 years, and marijuana has been the top drug involved in those arrests. The percentage of drug arrests that have been for possession (instead of for sale or manufacturing charges) has also risen, to 86 percent last year from around 67 percent in 1989. And the majority of drug arrests have involved small quantities.

“We’ve gotten so used to the idea that this is normal to arrest so many people for tiny amounts of drugs, but it’s not normal,” said Joseph E. Kennedy, a professor at the University of North Carolina School of Law who was an author of a paper titled Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests.

Although many arrests don’t result in conviction — some are dismissed and some result in pleas to a lesser offense — any drug conviction can harm employment, housing and educational prospects. And this continues to disproportionately affect African-Americans and Hispanics, even as many conservatives have joined liberals in saying that racial disparities in the criminal justice system need to be addressed....

It’s not clear why drug arrests are rising after a downturn in those arrests from 2006 to 2015. It may reflect in part a tougher enforcement approach begun under Jeff Sessions by the current administration, even with respect to marijuana. Even in states where marijuana is legal, people can still be arrested if they violate state laws like limits on the amount allowed for personal use. And increasing use nationwide — perhaps with an assumption of more leniency — may put more people at risk of arrest. According to the 2018 National Survey on Drug Use and Health, 43.5 million people 12 and older used marijuana in the past year, a number that has risen since 2011.

Public opinion has shifted decisively in favor of marijuana legalization. But Chuck Wexler, executive director of the Police Executive Research Forum, pointed out that 39 states haven’t passed laws making recreational marijuana legal, and that police practices and attitudes toward drugs vary among law enforcement agencies across the nation. “Some departments still see arrest as a measure of productivity, even though many of us see that as outdated,” he said.

Mr. Wexler says the overdose epidemic has contributed to how police departments respond to drugs, particularly in communities that lack diversion programs like the one in Seattle. “Today you have more recognition that you need to get people into treatment, but treatment is expensive and resources aren’t equal around the country,” he said, adding that “in many parts of the U.S., arrest is viewed as the only alternative that they have.”...

Better data collection and reporting about drug arrests would help inform policy as attitudes toward the drug war shift, particularly with respect to marijuana. “Anyone who’s spending money and law enforcement resources on this needs to be keeping track of this data,” said Mr. Kennedy, the U.N.C. law professor. “We have a right to know who we are arresting.”

November 5, 2019 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (1)

Opportunities for law students interested in prison law and prisoners’ rights

Sharon Dolovich, Professor of Law and Director of the Prison Law & Policy Program at the UCLA School of Law, asked if I could post this year's edition of the UCLA Prison Law Summer Job Search Guide.  As Sharon explained to me: "The guide is intended for current law students around the country interested in summer positions working on behalf of incarcerated people. The guide gives the students a one-stop shop of what organizations are hiring."

Download UCLA Prison Law Summer 2020 Job Search Guide

Sharon wisely also suggested I also use this opportunity to note anew Prison Law JD for a new crop of young prisoners’ rights advocates.  Again, from Sharon: "Prison Law JD is the national listserv for current law students or recent law grads who are interested in this field. The purpose is to disseminate information about job and fellowship opportunities, conferences, etc. and also to help build a community of the next generation of prisoners’ rights lawyers.  Students who want to join can email me directly at dolovich @ law.ucla.edu ."

I am so grateful for Sharon's terrific work on these important issues.  I am hopeful this message gets widely shared in all networks so that all law students know of these great resources and opportunities.

November 5, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

November 4, 2019

South Dakota completes execution after delays awaiting final SCOTUS appeals

As reportedin this AP piece, in South Dakota "Charles Rhines was executed by lethal injection at 7:39 p.m., after the U.S. Supreme Court denied to halt his execution despite three late appeals."  Here are more details of the crime and appeals:

Rhines, 63, ambushed 22-year-old Donnivan Schaefer in 1992 when Schaefer surprised him while he was burglarizing a Rapid City doughnut shop where Schaeffer worked. Rhines had been fired a few weeks earlier.  Rhines ambushed him, stabbing him in the stomach. Bleeding from his wound, Schaeffer begged to be taken to a hospital, vowing to keep silent about the crime; instead, he was forced into a storeroom, tied up and stabbed to death.

Steve Allender, a Rapid City police detective at the time of the killing who is now the city's mayor, said Rhines' jury sentenced him to death partly because of Rhines' "chilling laughter" as he described Schaeffer's death spasms. "I watched the jury as they listened to the confession of Charles Rhines on audiotape and their reaction to his confession was appropriate. Any human being would be repulsed by the things he said and the way he said them," Allender told KELO....

Media witnesses to the execution said Rhines appeared calm, and it took only about a minute for the pentobarbital used by the state to take effect. They said when he finished speaking, he closed his eyes, then blinked, breathed heavily and died.

Rhines had challenged the state's use of pentobarbital, arguing it wasn't the ultra-fast-acting drug he was entitled to. A circuit judge ruled it was as fast or faster than other drugs when used in lethal doses and speculated that Rhines wanted only to delay his execution.  The U.S. Supreme Court rejected that appeal, as well as his arguments that he was sentenced to die by a jury with an anti-gay bias and that he wasn't given access to experts who could have examined him for cognitive and psychiatric impairments.

Intriguingly, the appeal concerning access to experts related to the operation of South Dakota clemency process, and it prompted a short statement from Justice Sotomayor respecting the denial or cert.  Here are excerpts from that statement:

In order to assist them in preparing a state clemency application, Rhines’ federal habeas attorneys retained medical experts to evaluate Rhines.  State officials, as well as a state court, refused to grant the experts access to Rhines in prison.  The Federal District Court below also denied Rhines’ request for access....

It is unclear from this record whether an expert evaluation is necessary to Rhines’ clemency application.  Although Rhines’ experts believed there were additional grounds for investigation — including traumatic events that Rhines suffered earlier in his life — Rhines, as the State notes, has already been evaluated by several psychiatric experts in a different context.  For that reason, I do not dissent from the denial of certiorari.  I write separately, however, to note that this Court’s denial of certiorari does not represent an endorsement of the lower courts’ opinions.  I also write separately to emphasize that clemency is not “a matter of mercy alone,” but rather is the “‘fail safe’ in our criminal justice system.”  Harbison v. Bell, 556 U. S. 180, 192 (2009) (quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)).  By closing the prison doors in this context, a State risks rendering this fundamental process an empty ritual.

November 4, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

US Sentencing Commission releases updated "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report"

Late week the US Sentencing Commission released this updated new version of its data report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through September 30, 2019 and for which court documentation was received, coded, and edited at the Commission by October 23, 2019.

These new data from the USSC show that 1,987 prisoners have been granted sentence reductions, and that the average sentence reduction was 70 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.   Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2000 sentences by nearly 6 years, has now resulted in nearly 12,000 prison years saved.

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation.  But these latest data show yet again how this small piece has had big impact in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

November 4, 2019 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Race, Class, and Gender | Permalink | Comments (0)

"Experimental Punishments"

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

The Cruel and Unusual Punishments Clause prohibits, under its original meaning, punishments that are unjustly harsh in light of longstanding prior practice.  The Clause does not prohibit all new punishments; rather, it directs that when a new punishment is introduced it should be compared to traditional punishments that enjoy long usage.  This standard presents a challenge when the government introduces a new method of punishment, particularly one that is advertised as more “progressive” or “humane” than those it replaces.  It may not always be obvious, for example, how to compare a prison sentence to a public flogging, or death by lethal injection to death by hanging. When the new method of punishment is introduced, it is often an experimental punishment whose constitutional status is not immediately clear.

This Article shows how usage over time clarifies the constitutional status of experimental punishments by revealing two types of data that may not be available at the time the punishment is adopted.  First, the degree of stable reception the punishment achieves over time indicates whether society has accepted the punishment as consistent with the overall tradition.  The Eighth Amendment is premised on the idea that long usage is the most reliable method of determining what is cruel and what is not.  The longer a practice is used, and the more universally it is received, the more likely it is to comport with the demands of justice.  On the other hand, failure to achieve long usage may be powerful evidence that a punishment is cruel.  Second, usage over time can reveal more clearly how harsh the effects of the punishment are in comparison to traditional punishments. Innovations in punishment such as long-term solitary confinement, involuntary sterilization, and three-drug lethal injection all appeared “progressive” and “humane” when first adopted, but usage over time has shown their effects to be unjustly harsh in comparison with the practices they have replaced.

November 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

November 3, 2019

Giving Oklahoma its criminal justice reform due

Regular readers will not be surprised to hear more about red-state Oklahoma's interesting and important criminal justice reform efforts, as I have tried to highlight here repeatedly the more-than-okay news from the OK state.  But with record-setting clemency developments (first noted here), the mainstream media is catching up as evidence by these recent pieces:

From the Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"

From US News, "Oklahoma Focuses on Criminal Justice Reform"

From the Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

UPDATE: Here are a few more new pieces from the national media:

From CNN, "462 Oklahoma inmates will be released today in the largest commutation in US history"

From USA Today, "Hundreds of Oklahoma inmates to be freed, the largest mass release in US history"

November 3, 2019 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

"Criminal Justice Reform Is About People, Not Posturing"

The title of this post is the title of this recent Real Clear Politics commentary authored by John Koufos.  I recommend the full piece, and here are excerpts:

It’s a shame that Sen. Kamala Harris sought to politicize a celebration of the historic First Step Act at Benedict College in South Carolina last week.  Criminal justice reform has benefited millions of Americans — most especially the minorities the Democratic presidential candidate says she advocates for.  This reform restores victims, redeems former prisoners and rebuilds communities....

According to the U.S. Sentencing Commission, the First Step Act has overwhelming helped remedy historic injustice to minorities; African Americans make up more than 91% of those released.  It is no secret that minority communities were hurt most by the 1994 Clinton crime bill, which was originally drafted by Sen. Joe Biden.  At Benedict College, the president demonstrated his support for a “second step” of criminal justice reform....

Perhaps the greatest legacy of the First Step Act is its effect on state policy.  States are following the national criminal justice reform trend led by the White House. The president identified recent reforms in Arizona, Florida, Louisiana, Mississippi, Missouri, Michigan, Nevada, Oklahoma, Oregon, and Tennessee, which can be expected to lead to safer streets, increased employment and opportunity, and restored dignity and self-worth.

Goals — and results — like these should not be politicized.  I have seen the commitment of the president and White House first-hand, as part of a bipartisan coalition working on criminal justice reform.  I had the privilege of being in the Oval Office when the First Step Act was signed, and was humbled when the president asked me to speak about criminal justice reform at the White House.  I witnessed Jared Kushner’s leadership, and the commitment of Republican and Democrat legislators.  As I work with governors and state leaders across the country, I see the excitement for criminal justice reform regardless of party.

Criminal justice reform is a nonpartisan idea whose time has come.  President Trump summed it up best at Benedict College when he said: “I knew criminal justice reform was not about politics.  I’m … not sure that what I did was a popular thing or an unpopular thing, but I know it was the right thing to do.”

November 3, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)