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February 23, 2019

Latest Manafort sentencing memorandum from Special Counsel pulls few punches

As reported in this Politico article, a "federal judge should consider giving former Trump campaign chairman Paul Manafort a sentence that would send him to prison for at least 17 and a half years, special counsel Robert Mueller said in a court filing made public Saturday."  Here is more from the article about the filing and the legal context now:

Manafort faces a pair of sentencing hearings in the coming weeks in Virginia and in Washington where judges will determine what punishment he should face in two separate criminal cases brought by Mueller’s office involving tax fraud, bank fraud, unregistered lobbying for a foreign government and witness tampering.

The latest submission from Mueller accuses Manafort of a bold, brazen and wide-ranging series of crimes carried out over decades and continuing while Manafort was managing the Trump campaign in the summer of 2016, although prosecutors seemed to avoid mentioning the president directly in their new filing....

The new court submission in Washington released on Saturday makes no explicit recommendation about how much prison time Manafort should serve, but urges U.S. District Court Judge Amy Berman Jackson to consider making the longtime political consultant and lobbyist serve a total sentence in the roughly 17-to-22-year range by making her sentence consecutive to one a Virginia judge is expected to impose ahead of her early next month.

Jackson has the power in her case to sentence Manafort to up to ten years: the maximum allowed by law for the conspiracy and obstruction of justice crimes he pleaded guilty to before her last year as part of plea deal.

Last week, Mueller’s prosecutors told U.S. District Court Judge T.S. Ellis in Alexandria that sentencing guidelines applicable to Manafort’s case there call for him to serve between 19 and a half and 24 and a half years in prison. The prosecution team also made no explicit recommendation for a sentence in that case, beyond urging that the punishment be “serious” and adequate to deter others from similar conduct.

In theory, Ellis could sentence Manafort to as long as 80 years in prison on the charges of tax fraud, bank fraud and failing to report foreign bank accounts that he was convicted of at a high-profile jury trial last August.

The full 25-page filing (with a few redactions) is available at this link. Here is part of its introduction:

Based on his relevant sentencing conduct, Manafort presents many aggravating sentencing factors and no warranted mitigating factors. Manafort committed an array of felonies for over a decade, up through the fall of 2018.  Manafort chose repeatedly and knowingly to violate the law— whether the laws proscribed garden-variety crimes such as tax fraud, money laundering, obstruction of justice, and bank fraud, or more esoteric laws that he nevertheless was intimately familiar with, such as the Foreign Agents Registration Act (FARA).  His criminal actions were bold, some of which were committed while under a spotlight due to his work as the campaign chairman and, later, while he was on bail from this Court. And the crimes he engaged in while on bail were not minor; they went to the heart of the criminal justice system, namely, tampering with witnesses so he would not be held accountable for his crimes.  Even after he purportedly agreed to cooperate with the government in September 2018, Manafort, as this court found, lied to the Federal Bureau of Investigation (FBI), this office, and the grand jury.  His deceit, which is a fundamental component of the crimes of conviction and relevant conduct, extended to tax preparers, bookkeepers, banks, the Treasury Department, the Department of Justice National Security Division, the FBI, the Special Counsel’s Office, the grand jury, his own legal counsel, Members of Congress, and members of the executive branch of the United States government.  In sum, upon release from jail, Manafort presents a grave risk of recidivism. Specific deterrence is thus at its height, as is general deterrence of those who would engage in comparable concerted criminal conduct.

Some prior related posts:

February 23, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"There's a gender imbalance in many African-American neighborhoods. Mass incarceration is largely to blame."

The title of this post is the sub-headline of this new Governing piece with the main headline "Where Have All the Black Men Gone?." Here is an excerpt:

Governing reviewed the latest population estimates for all black adults ages 18 to 64 in Census tracts where they totaled at least 2,000. In those neighborhoods, there were only a median of 81 black men for every 100 black women. The imbalance was greatest in 380 neighborhoods, where there were fewer than two adult black men for every three adult black women under age 65. In contrast to the numbers for adults, Census estimates show that nationally, there are marginally more African-American boys than girls under age 18....

The single biggest driver behind the absence of many black men is mass incarceration. A few academics have held up ratios of black men to women as a proxy for incarceration. Despite recent declines in prison populations, disparities remain massive. African-American males are imprisoned in state and federal facilities at six times the rate of white men, and about 25 times that of black women, according to figures from the Bureau of Justice Statistics.

Black men, underrepresented in the overwhelming majority of neighborhoods, are instead heavily concentrated in relatively few places, and those tend to be home to prisons. We identified 79 such Census tracts with more than twice as many black men as women....

The ramifications of all this are far-reaching. Partners and families of the “missing men” face a host of negative social and economic consequences, such as a shortage of income and assets.  Huge numbers of women have ties to incarcerated family members: One in every 2.5 black women has a family member in prison, more than three times the number for white women, according to a Scholars Strategy Network report.  For children, research suggests growing up with an incarcerated parent increases the likelihood of learning disabilities, behavioral problems and other challenges.

February 23, 2019 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (1)

Another call to fix good-time credit after FIRST STEP good-time credit fix

David Oscar Markus has this new Hill commentary headlined "A small next step for criminal justice reform: Fix good time credit." Here are excerpts:

The current federal system awards good time credit — 15 percent — for all prisoners who behave.  That means for every year done in prison, you receive 54 days off in good time credit.

For a long time, the Bureau of Prisons only gave 47 days of credit, but the First Step Act told BOP that 15 percent was really 15 percent and prisoners should get the full 54 days.  Even with this directive, BOP has refused to give this credit, saying that there is an error in the statute, and has asked for Congress to reiterate that it really wants the 54 days of credit applied.  This is completely absurd, and both parties agree that this should be fixed immediately.  In addition to fixing the 54-day issue, there is one additional modest (and hopefully non-controversial) proposal that should be included.

As it stands, federal prisoners only receive good time credit if they are sentenced to more than a year of prison.  That means that if you are sentenced to a year and a day, you will receive 15 percent off with good time and serve about 10 months; however, if you receive a sentence of exactly one year in prison, no such good time credit will be applied, and you will serve that year day for day.

That means that the prisoner who receives a longer sentence of a year and a day will serve less time than someone who is sentenced to a year or 11 months.  It makes no sense.  Those who are sentenced to the lowest sentences — the lowest-risk offenders — should get the most benefit for good time, not the other way around.

Prior related posts:

February 23, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

February 22, 2019

Why I am certainly hoping, but not really expecting, Timbs to end up being a big deal

As reported here, on Wednesday the US Supreme Court has handed down its opinion in Timbs v. Indiana.  I was not at all surprised that the Justices decided unanimously that the Excessive Fines Clause of Eighth Amendment applies to the states, but I have since been surprised that some press coverage suggests that this ruling in a very big deal.  For example, consider this piece from Slate by Mark Joseph Stern, headlined "The Supreme Court Just Struck a Huge, Unanimous Blow Against Policing for Profit."  The piece's first paragraph seems to reflect way too much excitement as a result of a small and expected decision:

The Supreme Court struck an extraordinary blow for criminal justice reform on Wednesday, placing real limitations on policing for profit across the country.  Its unanimous decision for the first time prohibits all 50 states from imposing excessive fines, including the seizure of property, on people accused or convicted of a crime.  Rarely does the court hand down a ruling of such constitutional magnitude — and seldom do all nine justices agree to restrict the power that police and prosecutors exert over individuals.  The landmark decision represents a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far.

This paragraph strikes me as off in both spirit and particulars.  For starters, there is nothing really "extraordinary" about the Supreme Court deciding that the states are subject to the Excessive Fines Clause of Eighth Amendment given that just about every other significant provision of the Bill of Rights applies to the states.  Moreover, even before Timbs, all 50 states were in various ways already prohibited from imposing excessive fines given that, as the Timbs opinion notes, "all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality." 

Had the Justices gone on to clearly and directly rule that seizure of Tyson Timbs' Land Rover SUV constituted an excessive fine for his low-level drug dealing (as lower courts in Indiana had found), then I would agree that Timbs is a rare "ruling of such constitutional magnitude."  But the Justices in Timbs spoke only to the threshold incorporation issue, and so I do not see the ruling to "represent a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far."  That said, the widespread praise the opinion has received from across the political spectrum does make me hopeful that lower courts over time will be emboldened by Timbs to find more economic sanctions excessive.  But this other reporting on the opinion, headlined "Court Decision Doesn’t Guarantee Radical Changes to Fines and Property Seizures," better captures my sense that Timbs is as much as an opportunity missed as a "landmark decision."

In this context, it bears here noting a comment from LawProf Michael Mannheimer on Facebook: "Remember that they held the Cruel and Unusual Punishments Clause to be incorporated nearly sixty years ago.  And they've held how many non-capital sentences to be cruel and unusual?"  The answer is, of course, only a couple of hundreds of millions of non-capital sentences have been found unconstitutional in the era of mass incarceration. Recall that in Harmelin v. Michigan in 1991, the Supreme Court upheld a mandatory life without parole sentence for mere possession of a large quantity or drugs.  During oral argument in Timbs, some Justices seemed to struggle with the notion its jurisprudence might say forfeiture of an SUV violates the Eighth Amendment for selling drugs, but forfeiture of a lifetime of liberty for possessing drugs does not.

I sincerely hope and want to believe it is possible future Excessive Fines Clause jurisprudence is not as toothless as the Cruel and Unusual Punishments Clause has been for prison terms. Indeed, I hope that Timbs prompts the Justices to be thinking more about the importance of the Eighth Amendment's role in checking government excess in punishment, and that this thinking prompts them to grant cert in US v. Rivera–Ruperto, the extraordinarily compelling Cruel and Unusual Punishments case now before the Court which presents the Justices with an extraordinary opportunity to consider overruling Harmelin.

A few prior related posts:

February 22, 2019 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Brennan Center produces policy brief on "Ending Mass Incarceration: A Presidential Agenda"

2019_02_21_10AMJusticeAgendaforCandidates-1The Brennan Center for Justice yesterday released this notable new 16-page policy brief authored by Ames Grawert, Bryan Furst, and Cameron Kimble under the title "Ending Mass Incarceration: A Presidential Agenda."  Here is its introduction:

For many voters, the past two years have brought a new awareness of profound, continuing injustices in American society.  Among them is the civil rights crisis of mass incarceration.  Even with recent reforms, more than two million Americans remain behind the bars of jails or prisons.  Black men and women are imprisoned at roughly six times the rate of their white counterparts. The overuse of incarceration perpetuates economic and racial inequality, two issues at the top of the public concern.

Going into the 2020 election, contenders for the Democratic nomination — and the Republican incumbent — must have a plan to meet these challenges, or risk being out of step with the American people.

This report delineates how that can be done, outlining policies that would slash America’s incarceration rate, put people back to work, and reduce racial disparities in the process, while keeping the country safe.  These solutions can be a transformative piece of a presidential campaign and help define a new president’s legacy.

Some consensus for these changes already exists.  Late last year, Congress ended years of deadlock over federal sentencing reform by passing the FIRST STEP Act, which will reduce some of the most extreme and unjust sentences in the federal criminal code.  These changes will put families back together, make prison more humane, and help restore trust in law enforcement.

But the bill also raises the bar for any candidates seeking the Oval Office.  President Trump is already treating the act as a signature accomplishment, touting it among his top achievements in his State of the Union address.  Candidates who are serious about combating racial and economic injustice — and want voters to know it — will have to think bigger.

Rather than focusing on individual reforms, candidates for the presidency should commit to tackling some of the most pervasive and damaging parts of our criminal justice system, including overly punitive sentences, bail practices that favor the rich, and drug policies that unfairly target people of color.  These aren’t intractable problems, but they do call for sweeping changes, far more than what has been introduced to date. And enacting these in Washington can also spur more states to take action.

Incremental reforms will not make the history books.  The time for bold action is now, and this report outlines precisely the type of transformative solutions that candidates can champion to define their campaign or cement their legacy.

The report includes a number of large and small action items, all of which are interesting and important and all of which I hope get robustly discussed on the campaign trail.  The report has all prompted me to start a new blog category: "Campaign 2020 and sentencing issues."

February 22, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

February 21, 2019

"Juvenile Life Without Parole in North Carolina"

The title of this post is the title of this new paper available via SSRN and authored by Ben Finholt, Brandon Garrett, Karima Modjadidi and Kristen Renberg.  Here is its abstract:

Life without parole is “an especially harsh punishment for a juvenile,” and as the U.S. Supreme Court noted in Graham v. Florida.  The United States is the only country in the world that imposes juvenile life without parole sentences. Many of these individuals were sentenced during a surge in LWOP sentences in the 1990s.  In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, juvenile LWOP sentencing has declined.  This Article aims to empirically assess the rise and then the fall in juvenile LWOP sentencing in a leading sentencing state, North Carolina, to better understand these trends and their implications.

We examine the cases of 94 people in North Carolina who were sentenced to LWOP as juveniles.  Their ages at the time of the offense ranged from 13 to 17.  Of those, 51 are currently serving LWOP sentences (one more is currently pending a new trial).  These cases are detailed in the Appendix.  In North Carolina, JLWOP sentencing has markedly declined.  Since 2011, there have been only five such sentences.  Of the group of 94 juvenile offenders, 42 have so far been resentenced to non-LWOP sentences, largely pursuant to the post-Miller legislation in North Carolina.  Over one third of the juveniles sentenced to LWOP, or 32 individuals, were not the killers, but were convicted under a felony murder theory. 

These sentences are concentrated in a small group of counties.  A total of 61% or 57 of the 94 juvenile LWOP sentences in North Carolina were entered in the eleven counties that have imposed more than three such sentences.  We find an inertia effect: once a county has used a JLWOP sentence they have a higher probability of using a JLWOP sentence again in the future.  In contrast, homicide rates are not predictive of JLWOP sentences. 

We ask whether it makes practical sense to retain juvenile LWOP going forward, given what an unusual, geographically limited, and costly sentence it has become.  In conclusion, we describe alternatives to juvenile LWOP as presently regulated in states like North Carolina, including a scheme following the model adopted in states like California and Wyoming, in which there is period review of lengthy sentences imposed on juvenile offenders.

February 21, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

U.S. Commission on Civil Rights Public to hold public briefing on "Women in Prison: Seeking Justice Behind Bars"

As detailed in this press release, "On Friday, February 22, in Washington, DC, the U.S. Commission on Civil Rights will hold a public briefing to evaluate civil rights of women in prison, including deprivations of women’s medical needs that may violate the constitutional requirement to provide adequate medical care for all prisoners; implementation of the Prison Rape Elimination Act; and the sufficiency of programs to meet women’s needs after release."  Here is more:

The Commission will examine consequences of discipline practices in women’s prisons and the impact on families when women are placed far from home or parental rights are terminated despite their caregiving role.

Chair Catherine E. Lhamon said, “The United States has close to one-third of the world’s total incarcerated women, even though our country only has 5% of the world’s women. I look forward to receiving testimony about the experiences and conditions of confinement for women in prison, so the Commission can offer recommendations regarding adequate safeguards for the civil rights of incarcerated women.”

Commissioners will hear from women who have experienced incarceration, state and federal corrections officials, academic and legal experts, and advocates. Members of the public will be able to address the Commission in an open comment session. The Commission will accept written materials for consideration as we prepare our report; submit to womeninprison@usccr.gov no later than March 25, 2019.

The press release indicates all the witnesses scheduled to speak during these four panels:

Panel One: Overview of Women in Prison: Statistics, Constitutional Protections, Classification, and Family Disruption

Panel Two: An Analysis of Women’s Health, Personal Dignity, and Sexual Abuse in the U.S. Prison System

Panel Three: Review of Treatment of Women While Incarcerated

Panel Four: Rehabilitative Opportunities for Women in Prison & Life After Prison

This briefing will be live-streamed at this link, and the panelists' submitted written testimony are available here.

February 21, 2019 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

Making a robust case for "Sending Our Prisoners to College"

Over at The American Conservative, Nila Bala and Emily Mooney have this lengthy new commentary titled "Sending Our Prisoners to College: Just think of it as an up-front investment, one that will pay dividends down the road." I highly recommend the piece in full, and here are excerpts:

At the heart of conservative thinking are the tenets of individual dignity, public safety, family values, and fiscal prudence.  Yet far too often, society fails to apply these principles to the criminal justice system.  As a result, our current correctional system is failing all of us. It is clear that something must change.

Generally speaking, our correctional facilities do too little to prepare prisoners for their lives beyond prison walls.  Not surprisingly, recidivism rates are disturbingly high.  An estimate from the Bureau of Justice Statistics indicates that almost three fifths of those released from prison will be convicted of a new offense within five years of their release....

No one should be shocked by these results; prisons are dehumanizing places that do not produce favorable outcomes for incarcerated individuals, families, or communities. If we want prisoners to treat others with human dignity when they re-enter society, we must practice these principles in our treatment of them....

We have a choice to make: we can let incarcerated individuals sit behind bars — isolated and idle — or we can take steps to provide education to incarcerated individuals who, as a result, will be more employable, stable members of our society when they are released.

The idea of educating incarcerated individuals has been met with strong opposition from those who question why Americans should be taxed so that those behind bars — who have done something wrong — receive a benefit.  This sentiment led to the elimination of Pell Grants for prisoners in 1994.  Pell Grants exist to provide all students with financial need with aid for college.  Without financial support from these grants, the number of postsecondary prison programs plummeted from 772 programs to just 8 within three years.

By the late 2000s, individuals on both sides of the aisle began to recognize that prison systems were not stopping the continuing tide of crime.  A more effective solution was needed to address the growing prison population.  Finally, in summer 2015, the U.S. Department of Education announced the Second Chance Pell Pilot Program as part of the Experimental Sites Initiative.  This program allowed some colleges to apply to pilot the use of Pell Grants to increase access to postsecondary education in correctional facilities, with the federal government evaluating the academic and life outcomes of those who received postsecondary education.

We are now over two years into the experiment.  It is still too early to assess the initiative’s impact on recidivism rates.  However, removing barriers has increased enrollment: from fall 2016 to fall 2017, enrollment at Second Chance Pell experimental sites increased by 236 percent.  As of fall 2017, over 954 postsecondary credentials have been awarded, giving incarcerated individuals a better chance of obtaining employment through career technical certificates as well as two- and four-year degree programs.  Both the Trump administration and many leaders in the Republican Party have expressed interest in the program.

Given these promising signs, policymakers should consider expanding postsecondary education programming to prisoners nationwide.  Such programming brings gains for both prisoners and public safety, rebuilds families, is fiscally prudent, and acknowledges the individual dignity of those in prison....

Education has a transformative effect on incarcerated individuals and how they view themselves.  It affords individuals a glimpse at a new world of opportunities that they may not have been exposed to prior to incarceration.  In the classroom, prisoners are seen as individuals worthy of investment; their teachers and coursework engender a sense that they have something to offer to society.  Postsecondary courses take otherwise dead time and use it to engage prisoners in productive activity....

Practically speaking, postsecondary courses give incarcerated individuals something to do and help corrections personnel create a structured routine for participants.  These factors reduce the chance that prisoners will fill their time with less productive (and potentially criminal) activities.  Ultimately, postsecondary education can make the difficult job of corrections both easier and safer — for staff as well as those behind bars.

The transformative effects of postsecondary education do not stop behind prison walls; they also bring meaningful benefits to public safety.  A recent study found that earning a postsecondary degree while incarcerated may reduce an individual’s chances of re-arrest by 14 percent and their chances of a return to prison due to a new offense by 24 percent.  Though selection bias may come into play (i.e., students who choose to enroll in education programs may have characteristics that also make them less likely to re-offend), research has continued to identify such programming as a cost-effective model for increasing public safety....

Many people, and especially conservatives, have an instinctual bias against paying for prisoners’ education.  Yet the reality is we already pay a high cost — fiscal, social, and personal — because we do not educate most prisoners.  Indeed, the cost of an education is insignificant when compared to the costs our society suffers from criminal activity. Postsecondary education may require an upfront investment, but it’s one that will reduce the fiscal burden of government in the long run.

Our correctional system is in crisis.  Ten thousand individuals are released from prison every week, many of whom are wholly unprepared for the world they will enter. Our public safety, families, and economy are undermined when released individuals resort to crime.  We have tried building more prisons, increasing sentences, and making confinement more punitive.  But time and again, this “tough on crime” approach has not worked.  Instead, it has proven not only a fiscally wasteful policy that threatens public safety and family cohesion, but an affront to basic human dignity.

Supporting prison education does not mean being “soft on crime.”  Rather, it is one of the clearest, cheapest, and most effective methods to get control over crime and make our correctional facilities safer.  It paves the way for new family legacies based on education, productive labor, and prosperity, creating positive generational effects for years to come.

Conservatives should lead the way on repairing our broken criminal justice system.  Study after study has identified the provision of postsecondary education in prisons as a promising approach to preventing crime and to facilitating future economic opportunity.  The Second Chance Pell Pilot Program has created an opportunity to provide much-needed educational programs to incarcerated individuals. And, by expanding access to prison education programs, we can move toward an approach that embraces redemption, compassion, and second chances — and benefits society as a whole.

February 21, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

February 20, 2019

"Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail"

The title of this post is the title of this notable new research from Aurelie Ouss and Megan Stevenson now available via SSRN.  Here is the abstract:

Recent criminal justice reform efforts have focused on electing progressive prosecutors to implement change, such as the reduction of cash bail as a requirement for pretrial release.  However, critics worry that removing cash bail will decrease accountability and increase failure-to-appear in court.

We test this by looking at the effects of the No-Cash-Bail reform policy initiated by Philadelphia’s recently elected District Attorney, Larry Krasner.  Under this policy, the DA’s office stopped requesting cash bail for defendants charged with a large variety of different offenses, both misdemeanor and felony.  This policy led to an immediate 23% increase (12 percentage points) in the fraction of eligible defendants released with no monetary or other conditions (ROR), and a 22% (5 percentage points) decrease in the fraction of defendants who spent at least one night in jail, but no detectable difference for longer jail stays.  The main effect of this policy was therefore to reduce the use of collateral to incentivize court appearance.

In spite of this large decrease in the fraction of defendants having monetary incentives to show up to court, we detect no change in failure-to-appear in court or in recidivism, suggesting that reductions in the use of monetary bail can be made without significant adverse consequences.  These results also demonstrate the role of prosecutors in determining outcomes over which they have no direct authority, such as setting bail.

February 20, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (0)

Lots worth reading from lots of sources for criminal justice fans

Especially in the midst of a busy week, I sometimes come to realize that I will not get a chance to blog separately about a bunch of new pieces and commentary that have been brought to my attention.  I sometime deal with realization through a round-up post.  This is one of those posts:

February 20, 2019 in Recap posts, Who Sentences | Permalink | Comments (0)

"Mandatory Minimums, Crime, and Drug Abuse: Lessons Learned, Paths Ahead"

The title of this post is the title of this "Policy Brief" from The James Madison Institute authored by Greg Newburn and Sal Nuzzo.  I recommend the brief in full, and here is an excerpt from the final section of the paper titled "Lessons for the Future":

In the 1970s, frustrated with an intolerable crime wave and unprecedented drug abuse, New York, Michigan, and Florida tried a new solution.  Their theory was clear: harsh mandatory sentences would scare drug users into getting clean, deter would-be drug dealers from entering the trade, and incarcerate kingpins and major players who could not then continue to bring drugs into the state.  Leaders in each state were confident that their proposed solution would finally be the one that worked.

More than 40 years later, New York and Michigan recognized that the solution in which their leaders had such sincere confidence could no longer be justified by evidence, data, or experience, and repealed their mandatory minimum drug laws.  Those repeals were possible only after policymakers were honest about the failure of their solution to deliver on its promises.

In fact, dozens of states nationwide have reformed or repealed mandatory minimum laws over the past 15 years.  Georgia, Alabama, and Mississippi all have exceptions to mandatory minimum drug trafficking laws.  Texas has never used mandatory minimum drug laws, and, like Florida, is currently enjoying a near 50-year crime low.  (Florida’s drug overdose death rate was 62 percent higher than Texas’ between 1999 and 2017.)  Louisiana repealed its mandatory minimum drug laws in 2017, with the support of the state’s prosecuting attorneys....

Florida, however, has so far refused to join the emerging consensus in favor of mandatory minimum drug law reform.  In spite of overwhelming evidence, Florida still clings to the same solution to drug abuse that has failed the state for 40 years, and continues to ignore the costly unintended consequences of its continued reliance on this failed strategy. Like New York and Michigan, attempts to reform Florida’s mandatory minimum drug laws are invariably met with dire predictions of doom and gloom, and Chicken Little-style warnings that without mandatory minimums Florida risks inviting 1970s-level crime once again.

February 20, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (0)

Supreme Court rules unanimously in Timbs that Excessive Fines Clause of Eighth Amendment applies to the states (and says little else)

The Supreme Court this morning made quick work of the contention by the state of Indiana in Timbs v. Indiana, No. 17-1091 (S. Ct. Feb 20, 2019) (available here), that it is not bound by the Excessive Fines Clause of the Eighth Amendment.  In a short unanimous ruling authored by Justice Ginsburg explains why "the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming."  Here is a key passage from the start of he Timbs opinion:

The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?  Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminallaw-enforcement authority.  This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted).  The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.

Notably, the Court in Timbs does not address the subsequent issue of whether seizure of Tyson Timbs' Land Rover SUV Timbs constituted an excessive fine (as lower courts in Indiana had found). The Supreme Court was just content to resolve this incorporation issue.

Notably, Justice Gorsuch issued a concurring opinion and Justice Clarence Thomas issued an opinion concurring in the judgment in Timbs, and they are both writing separately to engage the issue of just how the Excessive Fines Clause should be incorporated against the states.  Justice Thomas makes, through an extended opinion, this fundamental incorporation point that he has raised before: "Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with 'process,' I would hold that the right to be free from excessive fines is one of the 'privileges or immunities of citizens of the United States' protected by the Fourteenth Amendment."  Justice Gorsuch engages in a short opinion stating "As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. " 

February 20, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

New Ohio Gov puts halt to all executions until Ohio develops new execution method

As reported in this local article, headlined "Gov. Mike DeWine freezes all Ohio executions while new method developed," the Buckeye state is yet again in a capital holding pattern because it governor is troubled by the state's current execution method. Here are the details:

Gov. Mike DeWine said Tuesday that there will be no more executions in Ohio until a new method of carrying them out can be developed and deemed constitutional by the courts.

“As long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio,” DeWine told reporters at an Associated Press forum in Columbus. “That would not be right, at least in my opinion.”

Pressed on whether he personally supports the death penalty, DeWine paused. Seeming to choose his words carefully, he then said he was a sponsor of Ohio’s current capital punishment law, which took effect in 1981. “It is the law of the state of Ohio. And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty. But I’m not going to go further down that path any more today,” he said.

DeWine, a Republican, ordered a review of Ohio’s death penalty protocols last month after a federal magistrate judge wrote that Ohio’s method of carrying out executions would subject a condemned Ohio prisoner to “severe pain and needless suffering.” Judge Michael Merz wrote Ohio could proceed with the execution, since the inmate, Warren Henness, did not produce an alternative that is ”available,” “feasible,” and can be “readily implemented,” required under a 2015 United States Supreme Court ruling that upheld lethal injection.

DeWine delayed Henness’ execution from Feb. 13 to Sept. 12 while the review was underway. But on Tuesday, he declined to place a timetable on how long it might take for a new execution method to be developed, for it to be legally challenged and then found constitutional by the courts. “I’ve dealt with the court system a long time, and I think it’s whenever you think you can figure out how fast or slow something’s going to take, you’re wrong,” he said....

Ohio’s method of execution is to inject the condemned with a combination of three drugs: midazolam (as a sedative), a paralytic drug, and potassium chloride to stop their heart. Death penalty opponents have challenged similar methods in other states, saying they are unconstitutional because they cause cruel and unusual punishment.

In his January opinion, Mertz, the federal magistrate judge, agreed with arguments made by Henness’s lawyers, writing that “it is certain or very likely” that the state’s prescribed dose of midazolam “cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride” or the “severe pain and needless suffering that is certain or very likely to be caused by the pulmonary edema which is very likely to be caused directly by the midazolam.”

DeWine’s review marks the second time in five years Ohio has searched for a new method of execution. The state changed the drugs it uses for lethal injection after the January 2014 execution of Dennis B. McGuire took more than 25 minutes.

Ohio had some two dozen execution dates scheduled over the next four years, but I think they are all now functionally on hold pending development of a new execution method. And, reading between the lines, I get the sense that Governor DeWine would be just fine if the state official did not try all that hard to devise a new execution method anytime soon.

A few (of many) prior recent related posts:

February 20, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

February 19, 2019

SCOTUS via 6-3 vote rules Texas yet again misapplied its Eighth Amendment jurisprudence prohibiting the execution of those with intellectual disability

In the middle of this lengthy new SCOTUS order list, which has lots of cert denials and individual opinions about cert denials, is one notable Supreme Court opinion on the merits in Moore v. Texas, No. 18–443 (S. Ct. Feb. 19, 2019). The start and last substantive paragraph of the 10-page per curiam opinion for the Court provides the basics:

In 2015, the Texas Court of Criminal Appeals held that petitioner, Bobby James Moore, did not have intellectual disability and consequently was eligible for the death penalty.  Ex parte Moore, 470 S.W.3d 481, 527–528 (Ex parte Moore I).  We previously considered the lawfulness of that determination, vacated the appeals court’s decision, and remanded the case for further consideration of the issue.  Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18).  The appeals court subsequently reconsidered the matter but reached the same conclusion.  Ex parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II).  We again review its decision, and we reverse its determination....

We conclude that the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.  And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court.  We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.

Chief Justice Roberts has this one-paragraph concurrence in the case:

When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U.S. 304 (2002), lacked clarity.  Moore v. Texas, 581 U.S. ___, ___–___ (2017) (slip op., at 10–11).  It still does.  But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here.  On remand, the court repeated the same errors that this Court previously condemned — if not quite in haec verba, certainly in substance.  The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits.  That did not pass muster under this Court’s analysis last time.  It still doesn’t.  For those reasons, I join the Court’s opinion reversing the judgment below.

Justice Alito, joined by Justices Thomas and Gorsuch, pens a three-page dissent with concludes this way:

The Court’s foray into factfinding is an unsound departure from our usual practice.  The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore.  I would deny the petition for a writ of certiorari.  I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question.  I therefore respectfully dissent.

There is a whole lot here to notice, but I think especially important and notable is the fact that the newest Justice, Justice Kavanaugh, is with the majority of the Court and not the dissenters here. Because of the Chief Justice's vote, Justice Kavanaugh is not technically a swing vote in this capital case.  But his vote still reveals that, unlike Justices Alito and Thomas (and even seemingly Justice Gorsuch), Justice Kavanaugh may be more inclined to scrutinize state capital practices than certain of his conservative colleagues.

February 19, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

A detailed accounting of many steps for everyone to follow-up on the FIRST STEP Act

Mark Holden has this new commentary at The Crime Report headlined "The First Step Act: It’s Only a ‘First Step’."  I recommend the piece in full, and here are excerpts:

Signed into law during the closing days of 2018, the bipartisan First Step Act expands rehabilitative programming, modifies some mandatory minimum laws to provide more proportional sentencing, and provides a second chance to people like [Matthew] Charles who’ve worked hard to transform their lives while in prison.... The law is also acting as a catalyst for states that haven’t yet reformed their criminal justice systems.

But as important as the law is, additional steps are needed to improve our criminal justice system.  To bring about transformative change, policymakers at all levels must act.  The private sector, civic organizations and community leaders must also do their part to ensure that the formerly incarcerated can find work, housing and access the tools they need to succeed after being freed....

Congress should apply three of the law’s sentencing changes retroactively, to help people who received overly harsh sentences under outdated policies and pass other front-end reforms that prioritize prison beds for dangerous criminals while addressing low-level, nonviolent offenses through treatment and other programs that better serve this population.

In addition, Congress should codify the Supreme Court ruling that requires prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case.  Lawmakers can also address our over-incarceration epidemic by clarifying criminal intent standards and working to rein in our bloated federal criminal code and regulatory code, under which virtually anyone can be charged with a crime.

The Trump administration can act on its own to reform the executive clemency process to create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.

States can parallel many of these federal actions by removing barriers for people with criminal records. More “Clean Slate” laws, like the one enacted in Pennsylvania last year, will create second chances for people by unblocking them from jobs, housing, and education.

States could also increase the transparency of their criminal justice systems through more data collection and enhanced due process protections for citizens.  Across the country individuals are incarcerated awaiting trial without considering other factors like the potential for flight risk, or whether the individual poses a threat to public safety, while others are incarcerated due to excessive fees and fines, and technical violations....

Businesses can help transform lives and enable people to contribute to their communities by hiring qualified candidates with criminal records.  I’m proud to work for Koch Industries, which hires people with criminal records and recently signed the Getting Talent Back to Work pledge with the Society for Human Resource Management to end outdated, non-inclusive hiring practices.

Finally, groups like Hudson Link for Higher Education, Safe Streets & Second Chances and The Last Mile can provide incarcerated people with skills and identify obstacles that prevent them from succeeding after their release....

We believe, as Winston Churchill did, in “an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man.” We all share a moral imperative to help find and unlock that treasure, to unleash the potential in everyone.

If we all do our part, we can bridge the partisan divide and build on the great foundation provided by the First Step Act. It’s time to take the next steps on criminal justice reform, this year and beyond.

February 19, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

February 18, 2019

"A World of Steel-Eyed Death': An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty"

The title of this post is the title of this new article now available via SSRN authored by Michael Perlin, Talia Roitberg Harmon and Sarah Chatt. Here is its abstract:

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process — in many ways, the most scandalous — is the inadequacy of counsel so often provided to defendants facing execution.  By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients.  This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation.  Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled — either by serious mental illness or by intellectual disability.  Some of the decisions in these cases — rejecting Strickland-based appeals — have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has — prior to this article — undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities.  We do this here.  In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland).  As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way.  First, we discuss the background of the development of counsel adequacy in death penalty cases.  Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear — on the surface — to bolster it in this context.  We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning.  Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.”  Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

February 18, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?

In this post on Friday, I mentioned that I consider the statutory changes to the so-called compassionate release provisions in federal law to the "sleeper provisions" of the FIRST STEP Act.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now," reviews some basics of the changes made by the FIRST STEP Act, and on page 3 one finds this account of what I think is a very big deal:  "The most significant change to compassionate release is that the Act provides prisoners the power to file a motion for compassionate release if they can demonstrate they have tried and failed to convince the BOP to do so for them.  Before passage of the First Step Act a denial by the BOP was not appealable."  In other words, courts rather than the BOP are now ultimately to decide who may merit a reduced "term of imprisonment" under 18 USC 3582(c)(1)(A)(i).

To focus on the statutory language, prior to the FIRST STEP Act, a federal judge under 3582(c)(1)(A)(i) needed to first receive a "motion of the Director of the Bureau of Prisons" in order to have authority to "reduce the term of imprisonment [based on] extraordinary and compelling reasons [that] warrant such a reduction."  The BOP was notoriously stingy about filing such motions (with only about .01% of inmates benefiting), and the program was, in the words of the Justice Department's Inspector General, "poorly managed and implemented inconsistently."  Now persons in federal prisons still need to request the support of BOP for such a motion, but courts can now consider a sentence reduction "upon motion of the defendant" based on a claim that "extraordinary and compelling reasons warrant such a reduction" if BOP refuses move the court or 30 days after making the request.  Importantly, the US Sentencing Commission has set forth a (reasonably expansive) policy statement concerning criteria for compassionate release via USSG 1B1.13, but it will now be fundamentally the province of the federal courts to develop jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).

I plan to do a series of posts explaining why I think a number of different criteria ought to meet the (textually vague) requirements of "extraordinary and compelling reasons."  For this first post in this series, I will focus on suggestions by the Justice Department's Inspector General when he testified on this issue back in 2016 before the US Sentencing Commission.  Specifically, in testimony to the USSC, IG Michael Horowitz suggested that BOP make inmates eligible for consideration for compassionate release starting at age 50.  According to the latest BOP data, there are currently nearly 35,000 persons in federal prison aged 51 or older.  Of course, the IG did not call for early release of all post-50 prisoners, but he did urge:  "Within that larger pool of eligible aging inmates, we believe the BOP could further identify more aging inmates whose offenses, criminal histories, conduct in prison, and release plans make them suitable candidates for compassionate release, resulting in reduced overcrowding and cost savings to the Justice Department and the BOP."  As explained above, it would seem that it is now appropriate for the courts, and not just BOP, to take an active and ongoing role in deciding who among the 35,000 are "suitable candidates for compassionate release."

Importantly, ill prisoners as well as elderly prisoners should be ready candidates for compassionate release (and these two groups surely overlap).  The latest BOP data here on medical placement shows that more than 5000 federal prisoners are in "care level" 3 or 4 facilities, and "Care Level 4 facilities are reserved for inmates who require daily nursing care or therapy."  As the IG explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps "reduce overcrowding in the federal prison system" and can "result in cost savings for the BOP" and in turn the federal taxpayer.

Even if we imagine only 10 percent of elderly and ill federal inmates are "suitable candidates for compassionate release," we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.  I fear, because these provisions are unfamiliar, that courts may not start making robust use of compassionate release right away.  But I hope they will, and I especially hope that federal prisoners and their advocates will press this important new frontier for federal sentencing improvements. 

A few prior related posts:

February 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

February 17, 2019

"Paul Manafort should not be sentenced to 20 years in prison"

The title of this post is the headline of this new Hill commentary authored by David Oscar Markus. Here are excerpts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.

Make no mistake, the sentencing range is that high only because Manafort had the audacity to make the government actually prove its case at a trial. Does going to trial warrant a sentence 15 years longer than his co-defendant, Rick Gates? Rick Gates hasn’t been sentenced yet, but his sentencing range is around 5 years. And he will most likely get a sentence much lower than that because of his cooperation. His lawyers will certainly ask for probation as have numerous other cooperators in the Special Counsel’s cases.

Some will respond that Gates should get less time than Manafort because he is less culpable and decided to cooperate. That’s of course true. But that doesn’t mean that Manafort should get 20 years simply because he had the temerity to go to trial.

The truth is that being less culpable becomes a minor factor when the trial penalty comes into play. There are many examples of the least culpable defendant getting the highest sentence solely because of the trial penalty. One such victim of the trial penalty was James Olis, a securities fraud defendant who worked at Dynegy Corporation in Houston, Texas. Olis was sentenced to 24 years in prison after trial, while his boss who testified against him received about a year.

Before trial, Olis had been offered 6 months in exchange for pleading guilty and cooperating. Olis’ lawyer, David Gerger, predicted: “If there’s a 20-year penalty for going to trial, then innocent as well as guilty people will simply decide they have to give up their right to a trial.” He was right. The case was ultimately reversed, and Olis was resentenced to 6 years. Until the reversal, prosecutors in Houston expressly mentioned Olis to any fraud defendant who wouldn’t plead. The line went something like this: “You can plead or risk ending up like Olis.”  Prosecutors in every district have their own “Olis line.”

Some prior related posts:

February 17, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?

The question in the title of this post is prompted by an interesting on-going story out of Norfolk, Virginia which I have blogged about over here at my marijuana blog.  This recent local article reports on these particulars:

The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court.

On Tuesday, prosecutors under Commonwealth’s Attorney Greg Underwood went to court for at least the third time to try to drop or dismiss misdemeanor marijuana charges. Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, he’s said.

For the third time, a judge rebuffed them, and told prosecutors she’s not alone, but joined by her seven colleagues. “We are of one mind on this,” Circuit Judge Mary Jane Hall said.

The decisions adds to the confusion about whether it’s OK to have a small amount of weed in the city. Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them....

Underwood’s change on marijuana possession is part of his larger effort to bring what he calls criminal justice reform to Norfolk. In a Jan. 3 letter to judges, the police chief and other public safety officials, he announced he would support ending cash bail in many cases and seeking more equal sentences between prostitutes and their clients.

In 2016 and 2017, more than 1,560 people have been charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi told the judge in court Tuesday. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black. This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

On Tuesday, Hall denied Fatehi’s motion to dismiss charges against Zemont Vaughan. The 24-year-old Norfolk man, who is black, had been convicted in a lower court in October, but on Tuesday, he went to the higher Circuit Court to appeal that conviction.

Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them. Not this time.

Hall told Fatehi she and the other seven judges think the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws. The judge said Fatehi made an “extremely compelling case” with his statistics on racial disparities, but should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Fatehi countered: Underwood is exercising the executive power voters gave him when they elected him the city’s top prosecutor. Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources. In contrast to the misdemeanor possession charges, Underwood’s lawyers will keep prosecuting people accused of trafficking or dealing marijuana. “This is an exercise of our discretion,” Fatehi said.

Fatehi said Underwood is thinking about asking the state Supreme Court to reverse the judges’ decisions, adding that he’s “very close” to making a decision.

It seems like an indisputable given that a judge cannot legally make a prosecutor bring a charge.  But once a charge has been brought, and perhaps especially once a conviction has been obtained, I can envision plausible bases for wanting to preserve some formal judicial authority to refuse to allow charges to be dropped or dismissed in some extreme circumstance.  For example, refusing dismissal could seem justified if a judge had a reasonable basis to believe that the prosecutor had been bribed to dismiss certain charges or if a judge concluded that dismissals were driven by some kind of unconstitutional motive.  The judges here are arguably asserting that these dismissals are constitutionally suspect, but that seems like a stretch on these facts. (Indeed, I wonder if Commonwealth’s Attorney Underwood might try to defend his dismissals by saying he is worried about constitutional infirmities concerning who gets arrested and charged by police for marijuana offenses.  Surely a prosecutor must have broad authority to seek dismissal of charges that he believes may be infected with constitutional problems.)

Whatever one thinks of the legal basis for judges refusing dismissals here, I also wonder how this will continue to play out practically.  Will judges in this jurisdiction seek to appoint another prosecutor to pursue charges that the local prosecutor seeks dismissed?  Do they have authority to do so and is there any other way for these cases to proceed absent such an appointment? If and when these cases are on appeal, might the defendants seek amicus support from Commonwealth’s Attorney Greg Underwood or at least a formal statement from him saying he believes the cases should no longer proceed?

February 17, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"On probation until 2053? Sentencing disparities, lack of guidelines get long look at Minnesota Legislature"

The title of this post is the headline of this interesting newspaper article from the North Star State focusing on a part of modern sentencing systems that merit a lot more attention than it usually gets.  Here is how the piece gets started:

Since getting clean, Jennifer Schroeder went on to manage the sober living house that nurtured her after a year in jail.  She became the first in her family to graduate from college and, as an addiction counselor, now helps others struggling with the same demons she had to overcome.

Yet Schroeder’s own past will loom large into her 70s.  The 36-year-old St. Paul resident is on probation until 2053 after being caught with 21 grams of meth during a traffic stop one summer in Wright County.  “It’s hard to transform yourself into a new person when you are still labeled as your old self,” Schroeder said.

The same crime would net a fraction of that sentence in Minneapolis or Duluth, a chasm that underscores the disparate nature of punishment in a state with one of the nation’s highest rates of probation but with no clear guidelines for judges to rely on.

With the backing from top officials at the Department of Corrections, state lawmakers from both parties are now pushing new measures to cap probation sentences in Minnesota at five years.  They are also calling on the state’s Sentencing Guidelines Commission to start issuing recommendations for probation like it has for prison sentencing for nearly 30 years. “We are failing the basic test that those convicted of the same crime should receive similar punishment,” said Rep. Jamie Long, D-Minneapolis, who is sponsoring both bills.

Support for changing the state’s probation laws mirrors the national conversation surrounding criminal justice reform, like the recent First Step Act that focused on federal prison sentencing and earned broad bipartisan support. Those testifying at the State Capitol this week included local representatives from both the liberal American Civil Liberties Union and the conservative Americans for Prosperity.

February 17, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)