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July 3, 2020

Effective review of the 1994 Crime Bill's complicated legacy

USA Today has this effective new piece about the impact and import of the 1994 Crime Bill under the headline "Fact check: 1994 crime bill did not bring mass incarceration of Black Americans."  I recommend the whole thing, and here are excerpts:

The 1994 crime bill, signed by President Bill Clinton, was a grab-bag of crime-fighting measures, ranging from three-strike provisions mandating a life sentence for repeat offenders and funding for states to hire 100,000 additional police officers, to a Violence Against Women Act.

As chairman of the Judiciary Committee, then-Sen. Joe Biden drafted the bill, known formally as the Violent Crime Control and Law Enforcement Act of 1994, which was billed by Democrats as a major crackdown on crime....

Lauren-Brooke Eisen, director of the Justice Program at the Brennan Center for Justice, a nonpartisan law and policy think tank, says one of the most significant and long-lasting impacts of the legislation was the enticement to states to build or expand correctional facilities through the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program....

Marc Mauer, executive director of The Sentencing Project, a campaign to end life imprisonment, told USA TODAY that the 1994 crime bill certainly encouraged the use of expanded incarceration by providing funding to the states for prison construction.  But he added that "mass incarceration was already well under way prior to the adoption of that legislation."...

Regarding mass incarceration of Black Americans, the issue plays out against the reality of longstanding racial disparities in imprisonment rates....  A report on "Racial Disparity in U.S. Imprisonment across States and Over Time," published in the Journal of Quantitative Criminology in 2019, found that a large increase in Black imprisonment is traceable in many states to the crack epidemic in the mid-1980s.

This disparity, the report says, began to ease starting in the 1990s.  "Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment," the report said....

Our research finds that while the crime bill did increase the prison population in states, it did not bring about a mass incarceration relative to earlier years.  Rather, it coincided with a slowdown in the annual grown of the state and federal prison population. Nor did it bring about mass incarceration of Black people, compared to before the bill was passed.

This USA Today piece references and links to some effective research on this topic, although it does not mention the papers recently published by the Council of Criminal Justice on this topic (one of which I authored).  These CCJ papers provide a similar accounting of the impact of the 1994 Crime Bill:

July 3, 2020 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Liberty, freedom, 2020 in incarceration nation ... discuss

An open thread for those who might be interested....

July 3, 2020 | Permalink | Comments (2)

"Proposition 47’s Impact on Racial Disparity in Criminal Justice Outcomes"

The title of this post is the title of this notable new and timely report from the Public Policy Institute of California.  Here is its "Summary":

While the COVID-19 pandemic has forced changes to correctional systems and law enforcement’s interactions with the community, widespread protests focused on the deaths of African Americans in police custody have intensified concern about racial and ethnic disparities in our criminal justice system.  In recent years, California has implemented a number of significant reforms that were not motivated by racial disparities but might have narrowed them in a number of ways. In this report, we extend our previous arrest work to examine the impact of Proposition 47, which reclassified a number of drug and property offenses from felonies to misdemeanors, on racial disparities in arrest and jail booking rates and in the likelihood of an arrest resulting in a booking.

While significant inequities persist in California and elsewhere, our findings point to a reduction in pretrial detention and a narrowing of racial disparities in key statewide criminal justice outcomes.

  • After Prop 47 passed in November 2014, the number of bookings quickly dropped by 10.4 percent.  As a result, California’s use of pretrial detention has declined.
  • Prop 47 also led to notable decreases in racial/ethnic disparities in arrests and bookings.  The African American–white arrest rate gap narrowed by about 5.9 percent, while the African American–white booking rate gap shrank by about 8.2 percent.  Prop 47 has not meaningfully changed the disparities in arrest and booking rates between Latinos and whites, which are still only a small fraction of the African American–white gap.
  • The narrowing of African American–white disparities has been driven by property and drug offenses.  The gap in arrests for these offenses dropped by about 24 percent and the bookings gap narrowed by almost 33 percent.  Even more striking, African American–white gaps in arrest and booking rates for drug felonies decreased by about 36 percent and 55 percent, respectively.
  • The likelihood of an arrest leading to a jail booking declined the most for whites, but this is attributable to the relatively larger share of white arrests for drug offenses covered by Prop 47. When we account for arrest offense differences, the decreases in the likelihood of an arrest being booked are similar across race and ethnicity.

We also looked at the cumulative impact of reforms and prison population reduction measures in California since 2009 on racial disparities in incarceration.  We found that the sizable reduction in the overall incarceration rate produced by these efforts has led to a narrowing of racial disparities in the proportion institutionalized on any given day.  In particular, the African American–white incarceration gap dropped from about 4.5 percentage points to 2.8 percentage points, a decrease of about 36 percent.

In addition to meaningfully reducing racial disparities in key criminal justice outcomes, the reclassification of drug and property offenses led to significant decreases in arrests and bookings, and hence pretrial detention. These decreases have the potential to reduce and/or redirect the use of public resources.  However, more work is needed.  Given evidence that the reforms have led to some increases in property crime, it is important for policymakers and practitioners to identify effective programs and policies that can reduce recidivism and maintain public safety while also continuing to address racial disparities.

July 3, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (2)

July 2, 2020

As July starts, "Total Federal Inmates" as reported by BOP, down to 160,690

On the cusp of a (long) weekend when we celebrate American freedom, it seems fitting that America's federal government is still experiencing a declining population of persons being deprived of freedom through its prison system.  Specifically, today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" shows a continuation of historic declines: in a prior post here, I detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; though June, as detailed here, declines continued at a slightly reduced rate of about 950 persons on average.

As we start July, we start with a new historic low as the new BOP numbers at this webpage report "Total Federal Inmates" at 160,690.  (For recent context, the BOP reported population dropped from 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25).)

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases many regions, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And so maybe, just maybe, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

July 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

"How Mandatory Minimums Are Weaponized"

The title of this post is the headline of this effective new opinion piece in the New York Times authored by Sandeep Dhaliwal. I recommend the piece in full and here are excerpts:

In the early morning hours of May 30, Colinford Mattis and Urooj Rahman were arrested in Brooklyn after a night of citywide protests in response to the killing of George Floyd.  They are charged with throwing a Molotov cocktail through the broken window of an unoccupied police car.  No one was hurt.  Both have plead not guilty, but if they are convicted of the array of federal charges leveled against them, there will be no judging involved when they are sentenced: They will face mandatory sentences of 45 years in prison.

Their story is just one example of how many senseless mandatory minimum penalties — blind to the facts of a case and the stories of the individual defendants — remain enshrined in law and must be changed....

At a time when progress is being made to address policing, the prosecution of Mr. Mattis and Ms. Rahman is a sobering reminder of other, deeply ingrained injustices in our systems of punishment. Even after modest improvements made by the 2018 First Step Act, the penalties for criminal activity are too often draconian, and prosecutors are too often keen to invoke them not because the defendants deserve the severity but to coerce them to plead guilty.  Reforms to eliminate mandatory minimums and rein in prosecutorial overreaching are vital to comprehensively reforming our overly punitive criminal justice systems, whose excessive harshness disproportionately affects communities of color....

Mandatory minimums grew popular in the 1970s and 1980s, as Congress and many states began adopting them for a slew of crimes — the biggest category being drug crimes.  Proponents said they were designed to deter the most serious types of criminal conduct.  But the penalties were inflexibly harsh, and it quickly became clear that many low-level offenders were being swept up and facing grossly excessive sentences.

The laws also suffered from another flaw: They were racist. The most infamous example is that it once took 100 times the amount of powder cocaine as crack cocaine to trigger the same mandatory minimum prison terms.  Other lesser-known examples abound.  People of color are disproportionately affected by mandatory minimums for the simple reason that they are disproportionately arrested and charged with crimes generally....

[T]he 45-year mandatory minimum penalty that Mr. Mattis and Ms. Rahman face is part of an all too familiar pattern of prosecution.  The goal is to coerce people to plead guilty to charges carrying harsh sentences in exchange for the dismissal of charges that mandate unconscionable ones.

The message that prosecutors send to them and to so many other defendants is clear: If you consider exercising your fundamental right to trial, we will seek penalties that are so excessive that you will think twice, because we have the power to take sentencing authority away from the judiciary.

When this regime of mandatory minimums began more than 30 years ago, 20 percent of federal criminal cases were resolved by trial.  Today, fewer than 3 percent are, and more than 97 percent of cases are resolved by pleas.

No rational observer would conclude that Mr. Mattis and Ms. Rahman should spend a majority of their lives behind bars for an alleged act that caused harm to no one.  To put the threat of a 45-year mandatory sentence into some perspective, according to data compiled by the U.S. Sentencing Commission, the median sentence for murder in the Second Circuit from 2015 through 2019 was 16 years.  The extreme 45-year sentences they face are a reminder that real people and families and communities are at the receiving end of these devastating penalties.

As lawmakers in Congress propose sweeping changes to policing spurred by society’s broad awakening to systemic racism, they must also make changes to eliminate federal mandatory minimums, rein in overcharging and help restore the right to trial.

July 2, 2020 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

July 1, 2020

Was Prez Trump's real political mistake not going bigger on criminal justice reform?

The question in the title of this post is prompted by this Axios piece headlined "Scoop: Trump regrets Kushner advice."  Here are some excerpts:

President Trump has told people in recent days that he regrets following some of son-in-law and senior adviser Jared Kushner's political advice — including supporting criminal justice reform — and will stick closer to his own instincts, three people with direct knowledge of the president's thinking tell Axios.

Behind the scenes: One person who spoke with the president interpreted his thinking this way: "No more of Jared's woke s***." Another said Trump has indicated that following Kushner's advice has harmed him politically.

Why it matters: This could be the final straw for federal police reform legislation this year, and it could usher in even more incendiary campaign tactics between now and November.

Details: The sources said the president has resolved to stick to his instincts and jettison any policies that go against them, including ambitious police reform.

  • Trump dipped his toe into police reform under pressure after a Minneapolis police officer killed George Floyd — with an executive order that activists considered toothless  but he will likely go no further to restrain law enforcement officers, according to senior administration officials.
  • Trump has made clear he wants to support law enforcement unequivocally, and he won't do anything that could be seen as undercutting police....
  • In response to this reporting, White House press secretary Kayleigh McEnany said in a statement, "President Trump is very proud of the historic work that he's done to benefit all communities.  The First Step Act made historic strides toward rectifying racial disparities in sentencing while his executive order to secure America's streets works with our nation's heroic police officers to ensure we have safe policing and safe communities."...

Between the lines: Trump never really wanted criminal justice reform, according to people who have discussed the subject with him privately.  He's told them he only supported it because Kushner asked him to.  Though he has repeatedly trumpeted it as a politically useful policy at times.

  • Trump now says privately it was misguided to pursue this policy, undercutting his instincts, and that he probably won't win any more African American support because of it.
  • "He truly believes there is a silent majority out there that's going to come out in droves in November," said a source who's talked to the president in recent days.

Anyone who has followed Prez Trump through the years should not be surprised by reporting that he has never been a real fan of criminal justice reform or that he is eager to praise and promote the police.  But Prez Trump did play a key role in getting the FIRST STEP Act enacted back in 2018 and it has seemed his campaign had wanted to make this fact a significant talking point in the 2020 political season.  But, in light of Prez Trump's poor recent poll numbers and his disaffinity for bold racial justice efforts, this story suggests he may be giving up on the prospect of securing any political advantage from criminal justice reform efforts.

But, as the question in the title of this post is meant to suggest, I think Prez Trump may be getting little political credit for criminal justice reform because he failed to really go big and because his frequent "tough" talk eclipses his reform efforts.  Had Prez Trump pushed dramatic and historic reforms — by, say, advocating for federal marijuana reforms and pushing for a federal expungement statute and creating a clemency council in the White House — he might well have burnished a real reputation as a real reformer.  And if Prez Trump stressed how these kinds of reforms advanced racial justice and racial equity in our criminal justice system, I really think he could have secured significant political benefits from being much more progressive on these issues than Joe Biden has historically been.

July 1, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Spotlighting our unique times as feds seek to resume execution this month

The New York Times has this article detailing that the first planned executions in nearly two decades are coming at quite a time. The piece is fully headlined "Federal Executions to Resume Amid a Pandemic and Protests: The administration is pressing ahead with the first federal execution in 17 years as demonstrators seek changes to the criminal justice system and lawyers have trouble visiting death-row clients."  Here are excerpts (with one line emphasized for commentary):

Daniel Lewis Lee is scheduled to be executed in less than two weeks, but he has been unable to see his lawyers for three months because of the coronavirus pandemic.

Mr. Lee, sentenced to death for his involvement in the 1996 murder of a married couple and their 8-year-old daughter, has been limited to phone calls, which one of his lawyers, Ruth Friedman, said she feared would jeopardize her client’s confidentiality.  And amid a global pandemic that has put travel on hold, her team has been unable to discuss pressing issues with Mr. Lee, conduct investigations, or interview witnesses in person.  “I can’t do my job right. Nobody can,” Ms. Friedman said from her apartment 600 miles away, in Washington, D.C., where she is working to commute Mr. Lee’s sentence to life in prison.

If she is unsuccessful, Mr. Lee, 47, will be the first federal death row inmate to be executed in 17 years.  Last year, Attorney General William P. Barr announced that the Justice Department would resume executions of federal inmates sentenced to death.  Two weeks ago, Mr. Barr scheduled the first four executions for this summer, all of men convicted of murdering children, and to be carried out at the federal penitentiary in Terre Haute, Ind.  On Monday, the Supreme Court cleared the way for the federal executions to proceed, rejecting arguments against the use of a single drug to carry out the sentence by lethal injection.

As the pandemic worsened, many states, including Texas and Tennessee, postponed scheduled executions of prisoners sentenced under state law. Since the pandemic began, there has been only one execution at a state prison, in Bonne Terre, Mo. The state capital trial in Florida for Nikolas Cruz, the gunman who killed 17 at Marjory Stoneman Douglas High School in 2018, was delayed indefinitely. Courthouses closed or moved to remote operations to accommodate social distancing....

In announcing the schedule for this summer’s federal executions, Mr. Barr said the death penalty was the will of the American people as expressed through Congress and presidents of both parties, and that the four men scheduled to die “have received full and fair proceedings under our Constitution and laws.”

The summer’s scheduled executions mesh with President Trump’s increasing election year efforts to cast himself as a “law and order” leader even as his administration faces mounting criticism for its response to protests over systemic racism in the policing system and a deadly pandemic.

Mr. Lee, who is scheduled to be put to death on July 13, was a white supremacist who has since disavowed his ties to that movement. The Trump campaign has seized on the political ramifications of Mr. Lee’s planned execution, criticizing the president’s presumptive Democratic opponent, former Vice President Joseph R. Biden Jr., for reversing his earlier support for the death penalty “even for white supremacist murderers!”

Though Mr. Biden now opposes capital punishment, he played a central role as a senator in the passage of the 1994 crime bill that expanded the use of the federal death penalty.  Mr. Trump has repeatedly attacked Mr. Biden for his record on criminal justice issues.

Mr. Biden and Mr. Trump are far from the first presidential candidates to spar over the death penalty as a political tactic. In 1992, then-Gov. Bill Clinton denounced President George Bush for his inaction on crime.  To affirm his support for the death penalty, he flew home to Arkansas in the midst of campaigning to personally see to the execution of a man who had been convicted of murdering a police officer.

But today’s candidates are vying for the White House amid nationwide protests over racism in the criminal justice system. Black people make up 42 percent of those on death row, both among federal inmates and over all, compared to 13 percent of the general population.

Though the four inmates scheduled to be executed this summer are white, critics of the death penalty warned that resumption of federal executions would only exacerbate the policy’s discrimination against people of color. “It would be nice if they used those resources to address the widespread problem of police violence against Black people,” said Samuel Spital, director of litigation at the N.A.A.C.P. Legal Defense & Educational Fund. Mr. Spital also questioned why the Justice Department did not use those resources allocated to resume federal executions to protect prisons from the coronavirus.

Imposing the death penalty amid the pandemic holds risks for those carrying out the execution: Doing so may require dozens of individuals, including corrections officers, victims and journalists, to come in close contact. The Bureau of Prisons directed that face masks would be required for all individuals throughout the entire procedure, with violators asked to leave the premises. Social distancing will be practiced “to the extent practical,” but the bureau conceded that limited capacity of the media witness room might preclude their ability to maintain a six-foot distance between observers....

Several family members of Mr. Lee’s victims, his trial's lead prosecutor, and the trial judge have all publicly opposed Mr. Lee’s execution. His co-defendant, described as “the ringleader” by the judge, was given a life sentence without parole.

In a statement, Mr. Barr maintained that the decision to reinstate federal capital punishment was owed “to the victims of these horrific crimes, and to the families left behind.” But Monica Veillette, who lost her aunt and cousin to Mr. Lee’s crimes, does not believe that this execution is for her family. She has asthma, and both her grandmother and parents are older. If they travel to Indiana for the execution from Washington State and Arkansas, each of them could be put at risk of contracting the virus. “If they owe us anything, it’s to keep us safe now by not pushing this execution through while people are still scrambling to access disinfectant spray and proper masks,” she said. “Haven’t enough people died?”

I have emphasized the fact that all of the defendants selected for execution dates by AG Barr are white because I suspect they were chosen to be the first ones to be executed, at least in part, because of their race. If I am right in this suspicion, I think AG Barr acted unconstitutionally. I am not sure if these defendants are pursuing an equal protection claim on this ground, but I sure think they should.

July 1, 2020 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Some additional helpful resources on compassionate release

As regular readers know, I have been making a weekly habit of posting lists of federal court rulings granting sentencing reductions pursuant to what is known colloquially as the federal compassionate release statute (recent examples here and here and here).  I surmise from feedback that these lists serve as helpful resources, and I am happy here to be able note here some additional materials that can aid those seeking compassionate releases.

For starters, the folks at FAMM have long been leaders on this front, and they have collected an extraordinary array of materials at this link.  In addition, the Amend at UCSF has put together here a set of original resources "to aid health care professionals/advocates in requesting compassionate release for incarcerated patients."  Especially notable are updated versions of a "Compassionate Release Sample Narrative Letter and Checklist Letter."

Last but certainly not least, I am pleased to report that Michael Gniwisch, a Penn Law student and legal intern at the Aleph Institute, gathered together a number of compassionate release cases from this blog and plugged them into a spreadsheet.  This detailed spreadsheet sorts the cases by district, nature of conviction, time left, illness, outbreak at facility, and exhaustion.  Michael's helpful work should make it easier for attorneys to find useful precedents, and Michael plans to keep updating the spreadsheet.  I am grateful for his efforts.

UPDATE: I am disappointed I forgot in this initial post to also flag this latest and timely FSR issue and some of the articles therein.  This issue covers, in the words of Jalila Jefferson-Bullock, how "amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration."

July 1, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered | Permalink | Comments (1)

June 30, 2020

"Rural Spaces, Communities of Color, and the 'Progressive' Prosecutor"

The title of this post is the title of this new paper authored by Maybell Romero available via SSRN.  Here is its abstract:

The concept of the “progressive prosecutor” has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large.  The success of candidates declaring themselves progressive prosecutors has been tracked with much excitement by those who have sincere interests in criminal justice reform and has been lauded in many reform-minded camps.

These progressive prosecutors, while located throughout the country, seem to have one geographic commonality — they generally hail from large cities or even urban metroplexes: These include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago.  In the meantime, disproportionate contact between police and minorities has increased in the rural reaches of the country, with prosecutors seemingly growing less reform minded with rates of incarceration in rural jurisdiction increasing.

This paper joins others in casting suspicion upon the notion of progressive prosecution, questioning whether such an appellation should exist given the current nature of the job in the United States.  It also serves as a warning; that while such prosecutors have seemed to become more common in large cities, that practitioners and scholars should not forget that reforms that occur in large jurisdictions sometimes do not extend to those suffering injustices in small communities.

June 30, 2020 in Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Persistent prison problems as COVID-19 continues to course through carceral environments

It has been a few weeks since I rounded up, in this post and this post, some headlines and stories about incarceration nation's continued struggles with the coronavirus pandemic.  But ugly realities in carceral settings have not gone away, nor has the good reporting and research.  The first few pieces below are extended or updated reviews of national prison problems, the others are just a few media pieces providing snapshots of recent developments in a few particular jurisdictions:

From The Marshall Project, "A State-by-State Look at Coronavirus in Prisons"

From the Prison Policy Initiative, "What do we know about the spread — and toll — of the coronavirus in state prisons?"

From The Sentencing Project, "COVID-19 in Juvenile Facilities"

 

From the Alabama Political Reporter, "Sixth Alabama inmate dies after positive COVID-19 test"

From KWTX, "COVID-19 has claimed dozens of lives in Texas prisons"

From Lake County Record-Bee, "California prisons are COVID hotbeds despite billions spent on inmate health"

From the Miami Herald, "2 in Homestead are first female Florida prisoners to die of COVID-19, after 21 male fatalities"

From the Nashville Post, "CoreCivic reports $25M in profits as COVID infects 2,500+ inmates"

From New Mexico In Depth, "Massive COVID-19 outbreak at a southern NM prison hits just one type of inmates — sex offenders. That’s by design."

From WBEZ, "Democrats And Republicans Are Critical Of Pritzker’s Handling Of COVID-19 In Prisons"

June 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Judicial Authority under the First Step Act What Congress Conferred through Section 404"

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

The First Step Act of 2018 promised relief to inmates serving disproportionately long sentences for cocaine base distribution. Section 404, the focus of this article, seemed straight-forward.  But in the spring and summer of 2019, district judges began reviewing § 404 cases and reaching dissonant results.  Appeals followed, focused on four questions of judicial authority: (1) Who may judges resentence?; (2) May judges engage in plenary resentencing or merely sentence reduction?; (3) May judges resentence all concurrent criminal convictions or only crack cocaine convictions?; and (4) Must judges adopt the operative drug quantity from the original sentencing?

Today, the law of § 404 remains incomplete in every circuit.  This article reviews the legislative history, text, and legal context of § 404.  It finds that Congress intended broad judicial authority in § 404 resentencings.

June 30, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

June 29, 2020

Is it a death penalty success or failure when worst-of-the-worst plead guilty to avoid capital trial?

The question in the title of this post is prompted by this AP story out of California headlined "Accused ‘Golden State Killer’ admits murders, will avoid death penalty."  Here are the basics:

A former police officer who terrorized California as a serial burglar and rapist and went on to kill more than a dozen people while evading capture for decades pleaded guilty Monday to murders attributed to a criminal dubbed the Golden State Killer.

Joseph James DeAngelo Jr. had remained almost silent in court since his 2018 arrest until he uttered the word “guilty” in a hushed and raspy voice multiple times in a plea agreement that will spare him the death penalty for a life sentence with no chance of parole.

DeAngelo, 74, has never publicly acknowledged the killings, but offered up a confession of sorts after his arrest that cryptically referred to an inner personality named “Jerry” that had apparently forced him to commit the wave of crimes that ended abruptly in 1986. “I did all that,” DeAngelo said to himself while alone in a police interrogation room after his arrest in April 2018, Sacramento County prosecutor Thien Ho said....

DeAngelo, seated in a wheelchair on a makeshift stage in a university ballroom that could accommodate hundreds of observers a safe distance apart during the coronavirus pandemic, acknowledged he would plead guilty to 13 counts of murder and dozens of rapes that are too old to prosecute. “The scope of Joseph DeAngelo’s crimes is simply staggering,” Ho said. ”Each time he escaped, slipping away silently into the night.”...

DeAngelo, a Vietnam veteran and a grandfather, had never been on the radar of investigators who spent years trying to track down the culprit. It wasn’t until after the crimes ended that investigators connected a series of assaults in central and Northern California to slayings in Southern California and settled on the umbrella Golden State Killer nickname for the mysterious assailant.

DeAngelo was caught after police used DNA from crime scenes to find a distant relative through a popular genealogy website database and then built a family tree that eventually led them to him. They then tailed DeAngelo and were able to secretly collect DNA from his car door and a discarded tissue to get an arrest warrant....

He tied up husbands and boyfriends and told them he’d kill them if they made a sound while he assaulted the women. Eventually he slipped off into the dark on foot or by bicycle and even managed to evade police who at times believed they came close to catching him. DeAngelo knew the territory well. He had started on the police force in the San Joaquin Valley farm town of Exeter in 1973, where he is believed to have committed his first burglaries and first killing....

Victims’ family members were anxious about what to expect before the court hearing began. “I’ve been on pins and needles because I just don’t like that our lives are tied to him, again,” said Jennifer Carole, the daughter of Lyman Smith, a lawyer who was slain in 1980 at age 43 in Ventura County. His wife, 33-year-old Charlene Smith, was also raped and killed.

A guilty plea and life sentence avoids a trial or even the planned weeks-long preliminary hearing. The victims expect to confront him at his sentencing in August, where it’s expected to take several days to tell DeAngelo and Sacramento County Superior Court Judge Michael Bowman what they have suffered. Gay and Bob Hardwick were among the survivors looking forward to DeAngelo admitting to their 1978 assault.

The death penalty was never realistic anyway, Gay Hardwick said, given DeAngelo’s age and Gov. Gavin Newsom’s moratorium on executions. “He certainly does deserve to die, in my view, so I am seeing that he is trading the death penalty for death in prison,” she said. “It will be good to put the thing to rest. I think he will never serve the sentence that we have served — we’ve served the sentence for 42 years.”

A person who murdered more than a dozen and raped many more would certainly seem to qualify as one of the "worst-of-the-worst" offenders that are often said to be those for whom the death penalty is reserved. But DeAngelo is not getting the ultimately penalty of death, so this case is arguably a story of death penalty failure.  And yet, without the death penalty as a (remote) possibility, DeAngelo would have arguably had no reason to plead guilty and spare victims the pain of a trial and other court proceedings. And so maybe this case is still a story of death penalty success.

June 29, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1)

"The Limits of Fairer Fines: Lessons from Germany"

The title of this post is the title of this new report from the The Criminal Justice Policy Program at Harvard Law School.  Here is a small part of the start and end of the long "Executive Summary" from the 156-page report:

Over the last few decades, advocates in the United States have exposed the injustices of high fines and fees that courts charge people sentenced to criminal and civil violations. Courts impose fines as punishment for offenses — often in addition to other punishment such as probation or jail — and they charge fees (also referred to as costs or surcharges) to fund the court and other government services.  The number of fees and the amounts assessed have been increasing over the last decades, in part because fees are being used to generate revenue for local and state governments.  Rarely, if ever, do U.S. courts consider people’s ability to pay before imposing these sanctions.  When people are unable to pay, they can become trapped in the system, facing a cycle of consequences including additional fees, court hearings, warrants, arrest, and incarceration.

In response to advocacy exposing how these punitive practices harm people and communities, jurisdictions have begun to reform.  The most direct efforts seek to repeal revenue-raising fines and fees.  More common, however, is the adoption of requirements that courts assess people’s ability to pay at the sentencing hearing, and/or before punishing people for nonpayment.  Though high monetary sanctions are prevalent in all courts, much of this reform attention has focused on misdemeanor courts that sentence ordinance violations and misdemeanor crimes. This is because fines are a common component of misdemeanor criminal sentences, and because there are clearer conflicts of interest inherent in the structure of some lower level courts that rely on fines and fees to fund their operations.

It is in this reform context that academics, advocates, and government leaders have considered day fines as a potential model for the United States.  Day fines are used in over 30 countries in Europe and Latin America to calculate fine amounts that are tailored to people’s ability to pay.   Day fines are set using a two-part inquiry.  Courts first consider the nature and seriousness of the offense, measured in units or days.  For example, a common low-level misdemeanor may receive 20 units.  Courts then calculate how much the person can pay per day/unit based on their individual financial circumstances.  The amount a person must pay per day is called the daily rate.  Someone earning very little may be required to pay $5 per unit for a total fine of $100, while someone earning more may be required to pay $20 per unit for a total fine of $400.  Day fines provide a framework for setting a fine based not just on the nature of the offense, but also on how much a fine will impact the person given their financial circumstances.  The resulting fines are theoretically more fair because people of different means experience the fines similarly.  A $400 fine affects a person earning that amount per week differently than a person who earns that amount in one day. In the United States, day fines hold the promise not only of making fines more fair, but also of making fines affordable to avoid the spiral of negative consequences that people face upon nonpayment.

Despite the theoretical resonance of day fines as a potential solution, there has been very limited information available about how this model works in practice.  This project fills this knowledge gap....

Germany’s example provides a useful starting point for jurisdictions in the United States that are considering the day fines model.  Germany’s experience demonstrates the need for strong political support, public education, and judicial buy-in, as well as a robust daily rate formula that will ensure day fines can be set at levels that people can afford to pay.  Germany also shows us that considering ability to pay at sentencing in every case is possible without being unduly cumbersome.  When considering day fines, jurisdictions should be thoughtful about their own political, socio-economic, and cultural realities, as well as the specific problems they are trying to address and how day fines would fit into their existing misdemeanor system.

This Report begins with a detailed overview of day fines in Germany, including specific policy details about the system’s design.  In the second part, we analyze that system and identify areas of consideration for those who might implement day fines in the United States.  We conclude with a decision guide for jurisdictions and advocates considering day fines.

June 29, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentencing around the world | Permalink | Comments (0)

SCOTUS denies, by 7-2 vote, cert petition from federal death row defendants challenging federal execution protocol

As reported in this AP article, the "Supreme Court on Monday refused to block the execution of four federal prison inmates who are scheduled to be put to death in July and August."  Here is more:

The justices rejected an appeal from four inmates who were convicted of killing children.  Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would have blocked the executions from going forward.

The court's action leaves no obstacles standing in the way of the executions, the first of which is scheduled for July 13. The inmates are separately asking a federal judge in Washington to impose a new delay on their executions over other legal issues that have yet to be resolved.

The activity at the high court came after Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions. Three of the men had been scheduled to be put to death when Barr first announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain....

The federal government’s initial effort was put on hold by a trial judge after the inmates challenged the new execution procedures, and the federal appeals court in Washington and the Supreme Court both declined to step in late last year. But in April, the appeals court threw out the judge’s order. The federal prison in Indiana where the executions would take place, USP Terre Haute, has struggled to combat the coronavirus pandemic behind bars. One inmate there has died from COVID-19.

The inmates scheduled for execution are: Danny Lee, who was convicted in Arkansas of killing a family of three, including an 8-year-old; Wesley Ira Purkey, of Kansas, who raped and murdered a 16-year-old girl and killed an 80-year-old woman; Dustin Lee Honken, who killed five people in Iowa, including two children; and Keith Dwayne Nelson, who kidnapped a 10-year-old girl who was rollerblading in front of her Kansas home and raped her in a forest behind a church before strangling the young girl with a wire.

Three of the executions — for Lee, Purkley and Honken — are scheduled days apart beginning July 13. Nelson’s execution is scheduled for Aug. 28. The Justice Department said additional executions will be set at a later date. Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

The Supreme Court's decision here does not guarantee that federal executions will go forward in two weeks, but it does guarantee there will be lots and lots of litigation in those two weeks as defense attorneys press other legal claims and federal prosecutors respond. The fact that the cert vote here was 7-2 could be viewed in various ways as a forecast of how the Justices might approach other issues surely to be brought before them by these defendants with pending execution dates. But I have come to assume that there are now five pretty solid SCOTUS votes to allow capital punishment administration to move forward, so there would seem to be a pretty solid chance the federal government will be getting back to executions shortly.

Prior related posts:

June 29, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sixth Circuit panel rejects Romell Broom's constitutional arguments that Ohio cannot try again to execute him after botched first attempt

I somehow missed that last week a Sixth Circuit panel handed down a notable unanimous ruling on a novel (and disconcerting) issues of capital punishment administration . Even long-time readers may have forgotten about the case of Romell Broon, but the start of the Sixth Circuit ruling in Broom v. Shoop, No. 19-3356 (6th Cir. June 23, 2020) (available here), provides the still-remarkable essentials:

In an infamous September 2009 incident, the state of Ohio tried to execute death-row inmate Rommel Broom, and failed.  More specifically, the state tried to execute Broom by way of lethal injection, but was forced to abandon the effort when the execution team concluded — two hours into the process — that it could not maintain a viable IV connection to Broom’s veins.  The state then returned Broom to his cell, to await a second execution attempt on another day.  That second execution attempt has not yet happened, however, because the parties have spent the last eleven years litigating whether the U.S. Constitution bars Ohio from ever trying to execute Broom again — Broom relies on both the Eighth Amendment’s prohibition on “cruel and unusual” punishment and the Fifth Amendment’s prohibition on “double jeopardy.”  The state courts, including the Ohio Supreme Court, have rejected Broom’s contentions on the merits, as did the district court below on habeas review.  Broom’s case now comes before us.

We in no way condone Ohio’s treatment of Broom; that it took two hours of stabbing and prodding for the state to realize that it could not maintain a viable IV connection to Broom’s veins is disturbing, to say the least.  But because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) permits us to reverse state court merits decisions in only a narrow set of circumstances, and because the Ohio Supreme Court’s decision rejecting Broom’s constitutional claims on the merits does not fall within that set of circumstances here, we AFFIRM the district court’s judgment denying Broom habeas relief.

Ohio has not executed anyone in two years due in part to litigation and uncertainty over execution protocols, and Broom recently had his 2020 execution date pushed back to March 2022.  I could discuss at great length not only why this case is so jurisprudentially interesting, but I continue to fear that SCOTUS will not be inclined to take up this case.  And for those interested in more coverage of all the facts and law, here are posts on the case going back more than a decade now:

June 29, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 28, 2020

"Sentencing Rape A Comparative Analysis"

The title of this post is the title of this new book authored by Graeme Brown for which I received an announce from the publisher offering a discount for SL&P readers.  Here are the details:

This book presents an in-depth comparative study of sentencing practice for rape in six common law jurisdictions: England and Wales, Scotland, Ireland, Canada, New Zealand, and South Africa.  It provides a thorough review of the medical literature on the physical and psychological effects of rape, the legal and philosophical literature on the seriousness of the offence, and the victim’s role in sentencing.  Given the increasingly common practice of perpetrators using mobile and online technologies to film or photograph the commission of sexual offences, the book examines recent socio-legal research on technology-facilitated sexual violence and considers the implications for sentencing.

By building on recent scholarship on judicial decision making in sentencing and case law — comprising over 250 decisions of the relevant appellate courts — the book explores and critically analyses judicial approaches to rape sentencing. The analysis is undertaken with a view to suggesting possible reforms to rape sentencing in ‘non-guideline’ jurisdictions.  In so doing, this book seeks to establish general principles for sentencing rape, assisting in the imposition of proportionate sentences.

This book will be of interest to judges and practising lawyers; to those researching criminal law, criminal justice, criminology, and gender studies; and to policy makers, including sentencing councils and commissions, in common law jurisdictions worldwide.

Graeme Brown is a solicitor and Assistant Professor in Criminal Law at Durham Law School, Durham University.

May 2020   |   9781509917570   |   328pp   |   Hbk   |    RSP: £75  

Discount Price: £60.  Order online at www.hartpublishing.co.uk – use the code HE6 at the checkout to get 20% off your order!

June 28, 2020 in Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (0)