Friday, August 16, 2019

Billionaire behind victims' rights reforms now prompting another kind of criminal justice change in Nevada after cutting sweet plea deal for his drug offenses

Last year I noted in this post the remarkable criminal justice story of Henry Nicholas, the tech billionaire who has pushed Marsy's Law reforms around the nation, upon his arrest at a Las Vegas Strip casino-resort on suspicion of trafficking heroin, cocaine, meth and ecstasy.  A helpful former student made sure I saw this new press article, headlined "Public defenders to use generous plea deal offered to billionaire Henry Nicholas as model for future plea deal requests," which details how the Nichols case is now having a remarkable ripple though the local criminal justice system.  Here is the latest chapter in this fascinating story:

Starting next week, public defenders in Clark County plan to directly invoke and ask prosecutors to grant terms similar to the generous plea deal offered to tech billionaire Henry Nicholas for criminal cases with indigent defendants.  According to documents shared with The Nevada Independent, attorneys in the Clark County public defender’s office have drafted a plan to begin filing motions in criminal cases seeking similar treatment offered to Nicholas by Clark County District Attorney Steve Wolfson’s office.

Civil justice advocates and some Democratic lawmakers cried foul after Wolfson’s office announced a plea deal with Nicholas, after he and a woman (Ashley Fargo) were arrested in Las Vegas last year and charged with several counts of felony drug trafficking.  The deal will see the two avoid prison time, go on informal probation, perform 250 hours of community service, attend regular drug counseling sessions and each make a $500,000 contribution to drug counseling programs in Clark County.

Public defenders in Clark County plan to begin filing motions in District and Justice courts that draw a direct comparison to the plea deal reached with Nicholas and the treatment of indigent defendants, including asking for a reduction in sentence, own recognizance release and a contribution of 0.0128 percent of their net worth — the same percentage of Nicholas’s net worth that he agreed to pay as part of his plea deal.  “Billionaire Defendant Nicholas and Defendant XXX are similarly situated and should be similarly treated by the prosecution and the courts,” the draft motion states. “The primary difference between the two men is that Billionaire Defendant Nicholas is wealthy, while Defendant XXX is not.”

The office has also drafted a form motion asking a District Court judge to recuse the district attorney’s office, for use in potential future criminal cases where prosecutors offer a less-generous plea deal than the one offered to Nicholas and that states the “appearance of impropriety and unfairness” so erodes the public trust that appointment of a special prosecutor is warranted.  “The appearance of impropriety and the bias is most obviously seen in the overly harsh plea bargain the State has offered the indigent defendant versus the sweetheart deal afforded the Billionaire Defendant Nicholas,” the draft motion states. “In this case, it seems clear that the criminal justice system, wealth rather than culpability shaped the outcome.”

The district attorney’s office declined to comment on the planned filings.

Nicholas is the co-founder and former CEO of Broadcom Corporation, with an estimated net worth of $3.8 billion. After leaving Broadcom in 2003, he has poured millions of dollars into passing ballot measures in multiple states (including Nevada) to add a “victim’s bill of rights” called Marsy’s Law to individual state constitutions.  Wolfson appeared in television ads supporting the ballot question in the run-up to the 2018 election.

Nicholas and Fargo — the ex-wife of Brian Fargo, an heir to the Wells Fargo bank fortune — were arrested in Las Vegas in August of 2018 on suspicion of drug trafficking after police found multiple drugs including heroin, cocaine, methamphetamine and ecstasy in their hotel room.  According to a police report, Nichols alerted hotel security at the Encore after he had difficulty opening the door to his hotel room and became concerned about the welfare of Fargo.  Police entered the room and found Fargo unresponsive with a semi-deflated balloon in her mouth, used to recreationally ingest nitrous-oxide (commonly known as whippets or poppers).  Police also reported finding 96 grams of methamphetamine, 4.24 grams of heroin, 15.13 grams of cocaine, and 17.1 grams of psilocin in the hotel room....

Nicholas was previously indicted on federal drug charges in 2008, but the charges were dropped in 2010.  He is scheduled to enter the plea deal, which must be accepted by a judge, on August 28.

I have long said in a variety of settings that advocates of criminal justice reforms out to utilize strategically, rather than complain loudly about, the lenient treatment often afforded more privileged criminal defendants.  Thus, I am quite pleased to see this clever effort by the Clark County public defender's office to try to get all of their less privileged defendants the Nichols treatment.

Prior related post:

August 16, 2019 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Thursday, August 15, 2019

"Slavery gave America a fear of black people and a taste for violent punishment. Both still define our criminal-justice system."

The title of this post is the title of this new piece authored by Bryan Stevenson from the New York Times magazine. Based on the title and author, regular readers should know this is a must-read in full.  Here is an excerpt:

The United States has the highest rate of incarceration of any nation on Earth: We represent 4 percent of the planet’s population but 22 percent of its imprisoned.  In the early 1970s, our prisons held fewer than 300,000 people; since then, that number has grown to more than 2.2 million, with 4.5 million more on probation or parole.  Because of mandatory sentencing and “three strikes” laws, I’ve found myself representing clients sentenced to life without parole for stealing a bicycle or for simple possession of marijuana.  And central to understanding this practice of mass incarceration and excessive punishment is the legacy of slavery....

The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes.  After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.”  The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.”  Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control....

Anything that challenged the racial hierarchy could be seen as a crime, punished either by the law or by the lynchings that stretched from Mississippi to Minnesota.  In 1916, Anthony Crawford was lynched in South Carolina for being successful enough to refuse a low price for his cotton.  In 1933, Elizabeth Lawrence was lynched near Birmingham for daring to chastise white children who were throwing rocks at her.

It’s not just that this history fostered a view of black people as presumptively criminal.  It also cultivated a tolerance for employing any level of brutality in response.  In 1904, in Mississippi, a black man was accused of shooting a white landowner who had attacked him.  A white mob captured him and the woman with him, cut off their ears and fingers, drilled corkscrews into their flesh and then burned them alive — while hundreds of white spectators enjoyed deviled eggs and lemonade.  The landowner’s brother, Woods Eastland, presided over the violence; he was later elected district attorney of Scott County, Miss., a position that allowed his son James Eastland, an avowed white supremacist, to serve six terms as a United States senator, becoming president pro tempore from 1972 to 1978.

This appetite for harsh punishment has echoed across the decades. Late in the 20th century, amid protests over civil rights and inequality, a new politics of fear and anger would emerge.  Nixon’s war on drugs, mandatory minimum sentences, three-strikes laws, children tried as adults, “broken windows” policing — these policies were not as expressly racialized as the Black Codes, but their implementation has been essentially the same.  It is black and brown people who are disproportionately targeted, stopped, suspected, incarcerated and shot by the police.

Hundreds of years after the arrival of enslaved Africans, a presumption of danger and criminality still follows black people everywhere.  New language has emerged for the noncrimes that have replaced the Black Codes: driving while black, sleeping while black, sitting in a coffee shop while black.  All reflect incidents in which African-Americans were mistreated, assaulted or arrested for conduct that would be ignored if they were white.  In schools, black kids are suspended and expelled at rates that vastly exceed the punishment of white children for the same behavior.

Inside courtrooms, the problem gets worse.  Racial disparities in sentencing are found in almost every crime category.  Children as young as 13, almost all black, are sentenced to life imprisonment for nonhomicide offenses.  Black defendants are 22 times more likely to receive the death penalty for crimes whose victims are white, rather than black — a type of bias the Supreme Court has declared “inevitable.”

The smog created by our history of racial injustice is suffocating and toxic.  We are too practiced in ignoring the victimization of any black people tagged as criminal; like Woods Eastland’s crowd, too many Americans are willing spectators to horrifying acts, as long as we’re assured they’re in the interest of maintaining order.

August 15, 2019 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (4)

Tuesday, August 13, 2019

"After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct"

The title of this post is the title of this notable new paper authored by Paul Robinson and Muhammad Sarahne now available via SSRN. Here is its abstract:

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals.  After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment.  This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction, the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed), the reformed offender, who takes affirmative steps to leave criminality behind, and the redeemed offender, who out of genuine remorse tries to atone for the offense.

The essay considers how one might operationalize a system for giving special accommodation to such offenders.  Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.

August 13, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, August 03, 2019

"Consequences of mental and physical health for reentry and recidivism: Toward a health‐based model of desistance"

The title of this post is the title of this recent Criminology article authored by Nathan Link, Jeffrey Ward and Richard Stansfield. Here is its abstract:

During the last few decades, criminologists have identified several adult roles and statuses, including employment, positive family relations, and economic stability, as critical for promoting successful reintegration and desistance.  Very few researchers, however, have investigated the conditions that serve to bring about these transitions and successes crucial for behavior change.  As a complement to a burgeoning amount of literature on the impact of incarceration on health, we emphasize the reverse: Health has important implications for reentry outcomes and reincarceration.

Informed by multiple disciplines, we advance a health‐based model of desistance in which both mental and physical dimensions of health affect life chances in the employment and family realms and ultimately recidivism.  Investigating this issue with longitudinal data from the Serious and Violent Offender Reentry Initiative (SVORI) and structural equation models, we find overall support for the health‐based model of desistance.  Our results indicate several significant pathways through which both manifestations of health influence employment, family conflict, financial problems, and crime and reincarceration.  The findings highlight the need for implementation of correctional and transitional policies to improve health among the incarcerated and avert health‐related reentry failures.

August 3, 2019 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Monday, July 29, 2019

"The Effect of Public Health Insurance on Criminal Recidivism"

The title of this post is the title of this notable new empirical paper recently posted to SSRN and authored by Erkmen Giray Aslim, Murat Mungan, Carlos Navarro and Han Yu. Here is its abstract:

The prevalence of mental health and substance abuse disorders is high among incarcerated individuals.  Many ex-offenders reenter the community without receiving any specialized treatment and return to prison with existing behavioral health problems.  We consider a Beckerian law enforcement theory to identify different sources through which access to health care may impact ex-offenders' propensities to recidivate, and empirically estimate the effect of access to public health insurance on criminal recidivism. 

We exploit the plausibly exogenous variation in state decisions to expand Medicaid under the Affordable Care Act.  Using administrative data on prison admission and release records from 2010 to 2016, we find that the expansions decrease recidivism for both violent and public order crimes.  In addition, we find that the public coverage expansions substantially increase access to substance use disorder treatment.  The effect is salient for individuals who are covered by Medicaid and referred to treatment by the criminal justice system. These findings are most consistent with the theory that increased access to health care reduces ex-offenders' perceived non-monetary benefits from committing crimes.

I think the punchy way to pitch these findings would be to say that Obamacare reduces crime and limiting or eliminating Obamacare risks increasing crime.  Very interesting (though not all that surprising for folks who think through issues at the intersection of criminal justice and health care access).

July 29, 2019 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Tuesday, July 16, 2019

US House Subcommittee hearing spotlights "Women and Girls in the Criminal Justice System"

Last week, as noted over at my marijuana blog, the Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary of the US House of Representatives conducted a notable hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform."   This week, that subcommittee continue to spotlight the need for criminal justice reform through a hearing this morning titled "Women and Girls in the Criminal Justice System."  This ABC News piece, headlined "House Judiciary subcommittee meets on growing population of women behind bars," provides a an effective summary of parts of the hearing, and here are excerpts:

Like 80% of women incarcerated in the U.S., Cynthia Shank was a mother when she went to prison.  Shank was pregnant when she was indicted and like many incarcerated women, she served time for nonviolent offenses -- in her case, she was sentenced to 15-years for federal conspiracy charges related to crimes committed by her deceased ex-boyfriend.  Nearly 150,000 women are pregnant when they are admitted into prison.

Shank, along with other prison reform advocates, appeared in front of the House Judiciary subcommittee for a hearing on women in the criminal justice system to discuss ways to make sure women are not overlooked in the conversation on criminal justice reform.  "Prison destroyed my small young family," Shank said.  "Prison is set up to separate and destroy bonds."...

Piper Kerman, author of the novel turned Netflix series "Orange is the New Black," also shared what her experience was like while imprisoned and why there needs to be a shift in policy to directly impact the growing number of women in prison.  "Policies, not crime, drive incarceration," Kerman said.

Women are now the fastest growing segment of the incarcerated population and initiatives to slow and even reverse the growth of the prison population have had disproportionately less effect on women, according to the Prison Policy Initiative.  The total number of men incarcerated in state prisons fell more than 5% between 2009 and 2015, while the number of women in state prisons fell only a fraction of a percent, 0.29% "In a number of states, women's prison populations are growing faster than men's, and in others, they are going up while men's are actually declining," said Aleks Kajstura, legal director of the Prison Policy Initiative.

The war on drugs is what many of the panelists and lawmakers pointed to as part of the reason there are such high rates of women incarcerated.  "Much of the growth of women in prisons can be attributed to the war on drugs," said Jesselyn McCurdy, deputy director of the Washington legislative office for the American Civil Liberties Union.

"Addressing this unfair issue is important because the war on drugs appears to be a large driver of the incarceration rates of women, as illustrated by the fact that the proportion of women in prison for a drug offense has increased from 12% in 1986 to 25% in more recent years." Rep. Jerry Nadler, D-N.Y., said.

An estimated 61% of women are incarcerated for nonviolent crimes, according to The Sentencing Project.  McCurdy touched on what many women, including Shank, fall victim to in the criminal justice system -- conspiracy charges as they relate to a significant other, also known as the "Girlfriend problem."

"You don't have to necessarily have dealt drugs, you have to have some role in a conspiracy and that role is very little," McCurdy said. "You can pick up the phone in your house that you live in with your partner and that's enough to implicate you in a conspiracy."

Family trauma was also a major focal point of the hearing, as lawmakers turned to the panel to seek their insight on the best ways to address the trauma of family separation. Shank told the subcommittee members that while she was incarcerated in a federal prison in Florida, she was only able to see her children once a year and that her children would beg her not to hang up the phone when they spoke.  "I'm an adult, I accepted the consequences of my sentencing, but my children were the innocent victims of this," Shank said.

The committee also spent time discussing the relationship between male prison guards and female inmates, with both Shank and Kerman saying that there needs to be more attention on the safety of women who are behind bars with male guards. "I never felt safe changing," Shank said.  "Guards know your schedule, and if they want to single you out they will."

Panelists were also asked to speak on the need of bail reform for women behind bars, as 1 in 4 women who are incarcerated have not been convicted and over 60% of women who could not make bail are parents of minor children, according to the Prison Policy Initiative.  Kerman said that there needs to be primary care consideration in the courts that require judges to consider the impact on families in both pre-trial hearings and sentencing.

"Women will no longer be overlooked in the criminal justice conversation," Rep. Karen Bass, D-Calif., said. "We must have an overall approach to criminal justice reform that specifically considers women.

The full two-hour+ hearing, along with the written testimony submitted by the official witnesses, can all be found at this official webpage.  And Piper Kerman's written testimony has a first footnote that provides this statistical basis for heightened concerns about the modern treatment of women and girls in the criminal justice system: "Since 1978, women’s state prison populations have grown 834%, while men’s state prison populations have grown 367%."

July 16, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Thursday, July 11, 2019

"Against the Received Wisdom: Why Should the Criminal Justice System Give Kids a Break?"

The title of this post is the title of this notable new paper authored by Stephen Morse now available via SSRN. Here is its abstract:

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote.  For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review.

After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break.  If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable.  Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: 1) coherence and simplicity; 2) a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and 3) a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability.

July 11, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, July 09, 2019

En banc Ninth Circuit works through Eighth Amendment jurisprudence and juvenile resentencing under federal guidelines

In this post around this time last year, I noted work on an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones.  The original ruling in Briones had a split Ninth Circuit panel affirming the district court's adoption of the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender.   But after granting en banc review, the Ninth Circuit has now vacated the LWOP sentence and remanded for resentencing by a 9-2 vote.  The new majority opinion in Briones, available here, has a lot to say about Eighth Amendment jurisprudence and juvenile sentencing, and here are a few excerpts:

Taken together, Miller, Montgomery, and Pete make clear that a juvenile defendant who is capable of change or rehabilitation is not permanently incorrigible or irreparably corrupt; that a juvenile who is not permanently incorrigible or irreparably corrupt is constitutionally ineligible for an LWOP sentence; and that a juvenile’s conduct after being convicted and incarcerated is a critical component of the resentencing court’s analysis....

We reaffirm that when a substantial delay occurs between a defendant’s initial crime and later sentencing, the defendant’s post-incarceration conduct is especially pertinent to a Miller analysis. See id.; see also Montgomery, 136 S. Ct. at 736 (“The petitioner’s submissions [of his reformation while in prison] are relevant . . . as an example of one kind of evidence that prisoners might use to demonstrate rehabilitation.”).  The key question is whether the defendant is capable of change.  See Pete, 819 F.3d at 1133.  If subsequent events effectively show that the defendant has changed or is capable of changing, LWOP is not an option.

The district court’s heavy emphasis on the nature of Briones’s crime, coupled with Briones’s evidence that his is not one of those rare and uncommon cases for which LWOP is a constitutionally acceptable sentence, requires remand.  We do not suggest the district court erred simply by failing to use any specific words, see Montgomery, 136 S. Ct. at 735, but the district court must explain its sentence sufficiently to permit meaningful review.  See Carty, 520 F.3d at 992 (“Once the sentence is selected, the district court must explain it sufficiently to permit meaningful appellate review . . . . What constitutes a sufficient explanation will necessarily vary depending upon the complexity of the particular case . . . .”).  When a district court sentences a juvenile offender in a case in which an LWOP sentence is possible, the record must reflect that the court meaningfully engaged in Miller’s central inquiry.

And here is a concluding substantive paragraph from the dissent:

Thus, despite evidence of Briones’s rehabilitation, youth when the heinous crimes were committed, and youth-related characteristics, the record supports that Briones’s crimes reflect permanent incorrigibility, as opposed to transient immaturity. The district court therefore imposed a permissible sentence.  Notably, the majority does not conclude that a life without parole sentence is impermissible in this case. Instead, although the majority claims otherwise, the majority’s opinion vacates the district court’s sentence because the district court failed to find that Briones was permanently incorrigible. But as discussed above, there is no requirement for the district court to make any specific findings before imposing a life without parole sentence.  In short, the majority, citing Montgomery, states that it “do[es] not suggest the district court erred simply by failing to use any specific words,” Maj. at 19.  But in clear contravention of Montgomery, that is precisely why it has reversed. We remand for the district court to do again what it has already done.

July 9, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 03, 2019

Spotlighting challenges at intersection of trying kids as adults and sexual offenses

The decision to try a juvenile offender as an adult often serves as a kind of sentencing decision. That reality, plus the always wrought policy and politics surrounding sex offenses, leads me to be interested in reactions to this new New York Times piece headlined "Teenager Accused of Rape Deserves Leniency Because He’s From a ‘Good Family,’ Judge Says." Here are excerpts from the lengthy front-page story:

The 16-year-old girl was visibly intoxicated, her speech slurred, when a drunk 16-year-old boy sexually assaulted her in a dark basement during an alcohol-fueled pajama party in New Jersey, prosecutors said.

The boy filmed himself penetrating her from behind, her torso exposed, her head hanging down, prosecutors said. He later shared the cellphone video among friends, investigators said, and sent a text that said, “When your first time having sex was rape.”

But a family court judge said it wasn’t rape. Instead, he wondered aloud if it was sexual assault, defining rape as something reserved for an attack at gunpoint by strangers.  He also said the young man came from a good family, attended an excellent school, had terrific grades and was an Eagle scout.  Prosecutors, the judge said, should have explained to the girl and her family that pressing charges would destroy the boy’s life.

So he denied prosecutors’ motion to try the 16-year-old as an adult. “He is clearly a candidate for not just college but probably for a good college,” Judge James Troiano of Superior Court said last year in a two-hour decision while sitting in Monmouth County.

Now the judge has been sharply rebuked by an appeals court in a scathing 14-page ruling that warned the judge against showing bias toward privileged teenagers.  In doing so, the appeals court cleared the way for the case to be moved from family court to a grand jury, where the teenager, identified only as G.M.C. in court documents, will be treated as an adult. New Jersey law allows juveniles as young as 15 to be tried as adults when accused of serious crimes, and the grand jury will weigh whether to indict him on the sexual assault accusation.

In recent years, judges across the country have come under fire for the way they have handled sexual abuse cases. One of the most notorious was in 2016, when a judge in California sentenced a Stanford University student to six months in jail after he was found guilty of sexually assaulting an unconscious woman.  After an intense public backlash, California voters recalled the judge.

Judge Troiano, who is roughly 70, was one of two family court judges whom appeals courts in New Jersey have criticized in recent weeks over relatively similar issues.

In the other case, the appellate division reversed another judge’s decision not to try a 16-year-old boy as an adult after he was accused of sexually assaulting a 12-year-old girl in 2017.  The second family court judge, Marcia Silva, sitting in Middlesex County, denied a motion to try the teenager as an adult and said that “beyond losing her virginity, the State did not claim that the victim suffered any further injuries, either physical, mental or emotional.”

The appellate judges also upbraided Judge Silva, overturning her decision and noting that the teenager could be culpable because the 12-year-old was not old enough to provide consent in the first place.

The judge in Monmouth County, Mr. Troiano, was scolded by the appellate court, according to the panel’s decision.  “That the juvenile came from a good family and had good test scores we assume would not condemn the juveniles who do not come from good families and do not have good test scores from withstanding waiver application,” the panel wrote in its decision.

Family court cases are typically closed to the public, but the judges’ comments surfaced in June when the appeals court decisions were made public, joining a series of contentious sexual assault cases that have ignited outrage over a legal system that advocates for victims say is warped by bias and privilege.

In the first case, heard by Judge Troiano, it is unclear from court documents when and specifically where in New Jersey the incident involving the two 16-year-olds took place. But prosecutors said it occurred during a party packed with 30 other teenagers.  The case was highlighted by a New Jersey radio station, 101.5....

In an interview, Christopher J. Gramiccioni, the county prosecutor said, “This is conduct that should be punished in adult court.” “We subscribe to the idea that the juvenile system is supposed to be rehabilitative,” he said.  “But when you’re dealing with charges as serious as these, it’s a whole different ball of wax.”...

Mr. Gramiccioni said New Jersey has a progressive juvenile system: Juvenile cases are not shown to juries, juvenile records are kept from public view and sentences are typically more lenient than when a person is tried as an adult.  A recent law made it illegal to try defendants younger than 15 as adults.

July 3, 2019 in Offender Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

"Language matters for justice reform"

The title of this post is the headline of this notable recent Hill commentary authored by Deanna Hoskins. I recommend the whole piece, and here is an excerpt:

Words such as offenders, convicts, prisoners and felons have existed in our lexicon for decades if not centuries.  But in recent years people have begun speaking out against the use of these dehumanizing terms.  Eddy Ellis, the late justice reform leader, penned a letter more than 15 years ago that ignited a movement demanding an end to dehumanizing language. He wrote, “The worst part of repeatedly hearing your negative definition of me is that I begin to believe it myself ‘for, as a man thinketh in his heart, so is he.’ It follows, then, that calling me inmate, convict, prisoner, felon, or offender indicates a lack of understanding of who I am, but more importantly what I can be.”

Movement leaders have long-recognized Mr. Ellis’s call to use humanizing language — but journalists, elected officials, and people new to the field must recognize this and make the shift as well.  In some state corrections systems, offensive terms such as “inmate” and “offender” have been banned from prisons.  A few years ago, the Department of Justice Office of Justice program that oversees criminal justice efforts announced that it would no longer use the word felon or convict in any of its communications and grant solicitations, instead using “a person who committed a crime.”  Resources including Mr. Ellis’ letter, the Social Justice Phrase Guide and The Opportunity Agenda’s toolkit are readily available to help people understand humanizing “people-first” language and why it’s important.

When we no longer define someone in the media or other arenas as “other,” we shift culture and policies toward human rights and dignity.  By making a conscious effort to change, we can use language that addresses injustice without dehumanizing people — especially black and brown people facing disproportionate discrimination after a record. Several years ago racial justice advocates, successfully stopped media outlets such as the Associated Press from using the phrase “illegal immigrant” which implied that a person’s existence violated the law.  Doing so brought attention to the mistreatment and human rights violations experienced by immigrants seeking refuge in this country.

We can achieve the same in the justice space. We must all commit to using terms such as “formerly incarcerated or incarcerated person” or “person with a felony conviction” instead of “ex-con,” “felon,” or “inmate.”  By doing so we make a conscious effort to recognize and respect people’s humanity.  To do otherwise only reinforces the second-class status we relegate upon many people in this country and therefore stalls our efforts toward equal justice for all.

I am quite sympathetic to the spirit and substance of this commentary, but I fear I will continue to struggle to move away from short-hand terminology like offender and prisoner (rather than person who committed an offense or person in prison).  

July 3, 2019 in Offender Characteristics, On blogging, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (2)

State judge finds Kentucky still failing to implement properly death penalty exemption for defendants with intellectually disability

A helpful reader sent me this news story from Kentucky headlined "Kentucky judge declares state's death penalty protocol unconstitutional."  Here are the basics:

A Kentucky judge has struck down the state's death penalty protocol as unconstitutional because it does not explicitly prohibit the execution of prisoners with intellectual disabilities.

Ruling on a motion brought by a dozen inmates on death row, Franklin Circuit Judge Phillip Shepherd ruled Tuesday that the regulation is invalid because it doesn't automatically suspend an execution when the state corrections department’s internal review shows a condemned person has an intellectual disability.

Granting a motion filed by the Department of Public Advocacy, Shepherd said the state's rules are flawed because they would allow a prisoner with intellectual disabilities to be executed if he or she declines further appeals.  The U.S. Supreme Court “categorically prohibits the execution of intellectually disabled persons,” Shepherd noted.

Assistant Public Advocate David Barron said all executions in Kentucky already had been stayed because of questions about the state's means of lethal injection, as well as other issues. Tuesday's ruling continues that stay, he said.

Barron called the opinion "a sound ruling that recognizes what we have been arguing for years."  He said the corrections department has “doggedly persisted” in refusing to recognize the U.S. Supreme Court’s ruling 17 years ago by taking “reasonable steps to ensure that an intellectually disabled person is not executed.”

The Kentucky attorney general’s office, which defended the regulations, is reviewing the ruling, spokesman Kenneth Mansfield said.

July 3, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 28, 2019

In federal prosecution following state conviction, Charlottesville killer James Fields gets LWOP sentence

As reported in this Reuters piece, headlined "Charlottesville neo-Nazi sentenced to life, judge says 'too great a risk' to release," a very high-profile defendant who has been subject to both state and federal prosecutions for a very high-profile crime, received his federal sentence today.  Here are the details: 

A federal judge imposed a life sentence on the self-described neo-Nazi who killed Heather Heyer by crashing his car into a crowd of counterprotesters in Charlottesville, Virginia, after a white supremacist rally, saying release would be “too great a risk.”

The 22-year-old neo-Nazi, James Fields of Maumee, Ohio, was sentenced to life without the possibility of parole. He had sought a lesser sentence, apologizing after the court viewed video of him plowing his car into a crowd after the Aug. 12, 2017, “Unite the Right” rally, also injuring 19 people.

U.S. District Judge Michael Urbanski, was unmoved by his plea, saying he had had to avert his eyes while the court viewed graphic video of the attack that showed bodies flying into the air as Fields crashed into them. “Just watching them is terrifying,” Urbanski said. “The release of the defendant into a free society is too great a risk.”...

Heyer’s parents described the grief of losing their daughter. “It was an incident I will never fully recover from,” said Heyer’s father, Mark Heyer. Her mother, Susan Bro, described herself as “deeply wounded” and recounted crying uncontrollably at times.

Ahead of Friday’s sentencing hearing, prosecutors noted that Fields had long espoused violent beliefs. Less than a month before the attack he posted an image on Instagram showing a car plowing through a crowd of people captioned: “you have the right to protest but I’m late for work.”

Even after the attack, Fields remained unrepentant, prosecutors said, noting that in a Dec. 7, 2017, phone call from jail with his mother, he blasted Bro for her activism after the attack. “She is a communist. An anti-white liberal,” Fields said, according to court papers filed by prosecutors. He rejected his mother’s plea to consider that the woman had “lost her daughter,” replying, “She’s the enemy.”

Fields pleaded guilty to the federal hate crime charges in March under a deal with prosecutors, who agreed not to seek the death penalty.

He was photographed hours before the attack carrying a shield with the emblem of a far-right hate group. He has identified himself as a neo-Nazi.

Fields’ attorneys suggested he felt intimidated and acted to protect himself. They asked for mercy, citing his relative youth and history of mental health diagnoses.

Intriguingly, this report completely leaves out the fact that James has also been subject to prosecution in Virginia state court, which resulted in a jury conviction and a recommendation of a 419-year plus life sentence.  The details of these proceedings are covered in some prior posts linked below.

Prior related posts:

June 28, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, June 26, 2019

The Sentencing Project reports one of every 15 women in prison (nearly 7,000) serving life or virtual life sentence

Via email I received this morning this fact sheet from The Sentencing Project titled "Women and Girls Serving Life Sentences" (which lead me to see that, a few weeks ago, it also release this related fact sheet titled "Incarcerated Women and Girls"). Here is the start of this latest publication:

Nationwide one of every 15 women in prison — nearly 7,000 women — is serving a life or virtual life sentence.  One-third of them have no chance for parole, so their prospects for release are highly improbable.  The number of women serving life sentences has grown dramatically despite declining rates of violent crime among women.

As is the case with imprisonment generally, men comprise the overwhelming proportion of people in prison for life; 97% of lifers are men.  At the same time, the number of women serving life sentences is rising more quickly than it is for men.  The Sentencing Project collected life-imprisonment figures by gender in 2008 and 2016. W e find that during this nine-year period the number of women serving life sentences increased by 20%, compared to a 15% increase for men.

The rise in life imprisonment among women has also been far more rapid than the overall prison population increase among women for violent offenses.  Between 2008 and 2016 there was a 2% increase in the number of imprisoned women for a violent crime, but a 20% increase in the number of women serving a life sentence.  When analysis is limited to life-without-parole sentences, we see that the number of women serving these sentences increased by 41% compared to 29% for men.

June 26, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, June 23, 2019

"Madison and the Mentally Ill: The Death Penalty for the Weak, Not the Worst"

The title of this post is the title of this new paper authored by Corinna Lain and available via SSRN. Here is its abstract:

Time and again, we are told that the death penalty is for the worst of the worst offenders, so how is it that the severely mentally ill end up in the snare of the capital justice system in the first place?  This essay — a transcribed (and slightly edited) version of a keynote speech given at Regent University’s 2018 law review symposium on mental health and the law — endeavors to answer that question.

The journey starts with deinstitutionalization of the severely mentally ill in the 1970s, and reinstitutionalization through the criminal justice system thereafter.  It then turns to the capital justice process, which not only fails to screen out those with severe mental illness, but is filled with hazards that make this cohort of offenders even more likely to be convicted and sentenced to death.  Next it turns to death row, and the conditions of solitary confinement in which the sick get sicker, and languish that way until it is time to die. Finally, the discussion turns to the doctrinal failsafe of competency to be executed, and explains why so many with severe mental illness fall through the cracks. 

The reality of the death penalty is that it is not for the worst of the worst.  It is for the weak among the worst — the most vulnerable offenders in a variety of ways, and executing those with severe mental illness is just a testament to the truth of that claim.

June 23, 2019 in Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Wednesday, June 19, 2019

New Compassionate Release Clearinghouse to match lawyers with prisoners seeking release after FIRST STEP Act

This new press release, titled "FAMM, Washington Lawyers’ Committee, NACDL Launch Compassionate Release Clearinghouse," reports on an exciting new resource for helping to better implement a part of the FIRST STEP Act. Here are the details:

Thousands of sick, dying, and elderly federal prisoners who are eligible for early release will now have access to free legal representation in court through the newly established Compassionate Release Clearinghouse. The clearinghouse, a collaborative pro bono effort between FAMM, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the National Association of Criminal Defense Lawyers (NACDL), is designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.

“People who can barely make it out of their beds in the morning should not have to go into court alone against the largest law firm in the nation,” said Kevin Ring, president of FAMM. “Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses. It’s gratifying to know we will be able to help people in a tangible and meaningful way.”

The Compassionate Release Clearinghouse recruits, trains, and provides resources to participating lawyers. The Clearinghouse’s design and implementation is being assisted by the Washington, D.C., law firm of Zuckerman Spaeder LLP through its partner Steve Salky.

“Sick and dying prisoners for years were unjustly denied release on compassionate release grounds by the Bureau of Prisons,” said Jonathan Smith, Executive Director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “Now, prisoners will be assisted by dedicated and high-quality lawyers in seeking relief from the courts, evening the playing field, and allowing many of these prisoners to return home.”

The effort was made possible by the passage of the First Step Act, which addresses a well-documented, three-decades-long issue in which sick, elderly, and dying prisoners have been routinely denied early release by the Bureau of Prisons (BOP). Until December 2018, there was no mechanism to challenge or appeal those decisions. Now, prisoners are allowed to appeal directly to a sentencing judge if their petitions are denied or unanswered.

Since the passage of the First Step Act, prisoners have been filing motions for release, and some have been challenged by federal prosecutors. The Compassionate Release Clearinghouse will make sure those prisoners have an attorney to fight for them in court.

“NACDL is proud to participate in this critically important effort,” said NACDL Executive Director Norman L. Reimer. “To make the promise of the First Step Act a reality for qualified sick, elderly, and dying prisoners, the nation’s criminal defense bar is committed to recruiting pro bono attorneys to be champions for those in need. Additionally, NACDL’s First Step Implementation Task Force will aggregate resources to support attorneys who undertake this important work.”

The Clearinghouse started matching attorneys with prisoners in need in February, and has matched more than 70 cases with pro bono attorneys. The Clearinghouse is actively recruiting additional attorneys and law firms to join in the effort.

As regular readers may recall (and as I have stressed in a number of prior posts), because  18 U.S.C. § 3582(c)(1)(A), the provision of federal law often known as "compassionate release," allows a court to reduce a prison sentence based on any and all "extraordinary and compelling reasons," it should not only be the "sick, dying, and elderly federal prisoners" who are potentially eligible for early release.  But, as this press release highlights, because there is already a history of extreme resistance toward releasing even the most deserving under this provision, it is heartening to see these groups work to make sure prisoners can get needed legal help to benefit from the reforms Congress is surely eager to see given full effect.

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

June 19, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Testing Periods and Outcome Determination in Criminal Cases"

The title of this post is the title of this important new article authored by Fiona Doherty and now available via SSRN. Here is its abstract:

This Article introduces the concept of “Testing Periods” to explain how U.S. courts sort criminal defendants for incarceratory and non-incarceratory results. A Testing Period is a time period during which a criminal defendant agrees to abide by a set of prospective rules (such as avoiding “dirty urines” and remaining “clean” from drugs and alcohol), typically, but not always, as a function of plea bargaining.  Prosecutors and judges set the rules, and defendants must demonstrate that they can follow the rules to pass the test and successfully avoid prison.  Juries play no role in the system, and due process requirements diverge sharply from traditional norms.

The outcomes of most criminal cases are now determined through Testing Periods, which go by varied names like probation, problem-solving courts, suspended sentences, conditional plea agreements, and deferred adjudication.  The pervasiveness of Testing Periods has changed the orientation of outcome determination in criminal cases away from a retrospective analysis to a prospective one: Outcomes no longer depend on a backward-looking examination of the facts of a criminal charge, but instead on whether a defendant can pass a forward-looking test.  The power to create and administer Testing Periods has become the power to determine who goes to prison and for what reason.  The Article concludes that the widespread use of Testing Periods has recreated dynamics from a much older method of resolving criminal cases: the testing models used in the medieval ordeal system to separate “clean” defendants from “dirty” ones, and the “worthy” from the “unworthy.” 

June 19, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Noticing that early federal prisoner release often means earlier deportation for non-citizen offenders

The Marshall Project has this new piece spotlighting how the FIRST STEP Act will result in expedited deportation for some of the prisoners getting their sentences reduced.  The piece is headlined "First Step Offers Release for Some Prisoners—But Not Non-Citizens: About 750 federal inmates will be transferred to Immigration and Customs Enforcement custody starting in mid-July." Here are excerpts:

President Trump convened a news conference last week to celebrate the release of 3,000 federal prisoners on July 19 as part of the First Step Act. But not all of those inmates will actually walk free: 750 non-citizens could well face deportation....

The 750 non-citizens released from federal prisons will be held for transfer to Immigration and Customs Enforcement custody so ICE can start the deportation process, according to the Bureau of Prisons.

While the Trump administration has pressed to increase deportations, there is ample precedent for non-citizens being released from prison, only to be ejected from the country. In 2015, during the Obama administration, more than 6,000 prisoners were released after the nonpartisan U.S. Sentencing Commission revised sentencing guidelines for some drug crimes. More than 20 percent of those released were sent to ICE to face deportation....

About 35,000 people of foreign or unknown origin make up nearly 20 percent of all federal prisoners in Bureau of Prisons custody. People from Mexico constitute the largest population of non-citizens with prisoners born in Colombia, the Dominican Republic and Cuba as the next largest identifiable groups....

Nearly half of foreign-born federal prisoners are incarcerated for drug trafficking or related offenses, while those convicted of immigration offenses such as illegal reentry after deportation make up 28 percent.

Once detained by ICE, those released from federal prisons can theoretically be released on bond, said Ricardo S. Martinez, a chief U.S. district judge and chair of a federal judicial committee that reviews criminal justice bills and laws. “But more likely they are held until they can be repatriated back to their country of origin,” he said.

June 19, 2019 in FIRST STEP Act and its implementation, Offender Characteristics | Permalink | Comments (0)

Tuesday, June 18, 2019

"Most US drug arrests involve a gram or less"

The title of this post is the title of this new short piece by Joseph Kennedy (which condenses some of his really important work set forth in this recent full article, "Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests"). Here are excerpts:

U.S. drug laws are designed as if every offender was a dedicated criminal like Walter White, treating the possession or sale of even small quantities of illegal drugs as a serious crime requiring serious punishment.

I have studied the war on drugs for a number of years.  Last December, my colleagues and I published a study on U.S. drug arrests, showing that roughly two out of every three arrests by state and local law enforcement target small-time offenders who are carrying less than a gram of illegal drugs.

Virtually all states treat as felonies the sale of any amount of illegal drugs.  The thinking behind these laws is that you cannot catch the big fish without catching some minnows as well.  Many states also treat the mere possession of any amount of a hard drugs, such as cocaine, heroin or meth/amphetamine, as a felony....

We wanted to find out how often the police made arrests involving large quantities of drugs.  To make things manageable, we narrowed our study to three evenly spaced years, 2004, 2008 and 2012.  The resulting data set contained over a million cases, with usable data found in over 700,000 cases.  We believe our study is the most comprehensive study of drug arrest quantity undertaken to date....

Our study found that, by and large, state and local police agencies are arresting small fish, not big ones.  Two out of three drug offenders arrested by state and local law enforcement possess or sell a gram or less at the time of arrest. Furthermore, about 40% of arrests for hard drug are for trace amounts — a quarter of a gram or less.

Because possessing any amount of a hard drug and selling any illegal drug is a felony in virtually every state, the small size of these quantities matter.  They suggest that very minor offenders face felony liability.  Felony convictions make it difficult for ex-offenders to secure good jobs.  They carry many other harmful collateral consequences.

There are few truly big, or even medium-sized, offenders in the remaining arrests.  Arrests for quantities of hard drugs above five grams range between 15 and 20 percent of all arrests, and arrests for a kilogram or more are less than 1%.

What’s more, the racial distribution of these small quantity arrests reveal importance differences between arrests for different types of drugs.

Our study confirms that blacks are disproportionately arrested for crack cocaine offenses, as are whites for meth/amphetamine and heroin offenses.  When it comes to possession of a quarter gram or less, police arrest almost twice as many blacks as whites for crack cocaine.  However, they arrest almost four times as many whites as blacks for heroin and eight times as many whites as blacks for meth/amphetamine.

Offenders of color are, by and large, not significantly more serious offenders in terms of quantity of drugs.  They just possess and sell drugs that are the most frequent target of arrest.  Our study showed about twice as many arrests for crack cocaine as for meth/amphetamine and almost four times as many arrests for crack cocaine as for heroin.

Finally, this study shows that 71% of drug arrests are not for hard drugs, but for marijuana.  The majority of those arrests are also for tiny quantities: 28% for trace amounts and almost 50% for a gram or less.  Once again, blacks are disproportionately arrested for marijuana offenses, making up about a quarter of all marijuana arrests despite being about 13% of the population.

Illegal drugs are ultimately sold in small quantities to users, so it’s not surprising that there are more small quantity offenders in the pool of drug arrestees.  But this study suggests that the majority of state and local drug enforcement resources are spent catching these small fish.  The drug war is not being waged primarily against the Walter Whites, but against much less serious offenders.

Prior related post:

June 18, 2019 in Data on sentencing, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (4)

Monday, June 10, 2019

Supreme Court unanimously affirms ACCA sentence based on prior burglary conviction in Quarles

The Supreme Court this morning somewhat clarified the operation of its convoluted Armed Career Criminal Act jurisprudence through a unanimous opinion in Quarles v. US, No. 17-778 (S. Ct. June 10, 2019) (available here).  Here is how Justice Kavanaugh's opinion for the court get started:

Section 924(e) of Title 18, also known as the Armed Career Criminal Act, mandates a minimum 15-year prison sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a “serious drug offense” or “violent felony.”  Section 924(e) defines “violent felony” to include “burglary.” Under this Court’s 1990 decision in Taylor v. United States, 495 U. S. 575, the generic statutory term “burglary” means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599 (emphasis added).

The exceedingly narrow question in this case concerns remaining-in burglary.  The question is whether remaining in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.  For purposes of §924(e), we conclude that remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.  We affirm the judgment of the U. S. Court of Appeals for the Sixth Circuit.

The most interesting aspect of Quarles may be the short concurrence by Justice Thomas, which makes these points:

This case demonstrates the absurdity of applying the categorical approach to the enumerated-offenses clause. The categorical approach relies on a comparison of the crime of conviction and a judicially created ideal of burglary. But this ideal is starkly different from the reality of petitioner’s actual crime: Petitioner attempted to climb through an apartment window to attack his ex-girlfriend.

More importantly, there are strong reasons to suspect that the categorical approach described in Taylor v. United States, 495 U. S. 575 (1990), is not compelled by ACCA’s text but was rather a misguided attempt to avoid Sixth Amendment problems. See Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 21–23).  Under our precedent, any state burglary statute with a broader definition than the one adopted in Taylor is categorically excluded simply because other conduct might be swept in at the margins. It is far from obvious that this is the best reading of the statute. A jury could readily determine whether a particular conviction satisfied the federal definition of burglary or instead fell outside that definition. See Ovalles v. United States, 905 F. 3d 1231, 1258–1260 (CA11 2018) (W. Pryor, J., concurring). Moreover, allowing a jury to do so would end the unconstitutional judicial factfinding that occurs when applying the categorical approach. See, e.g., Dimaya, supra, at ___–___ (opinion of THOMAS, J.) (slip op., at 22– 23); Mathis v. United States, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring) (slip op., at 2); Descamps v. United States, 570 U. S. 254, 280 (2013)...

Of course, addressing this issue would not help petitioner: He has not preserved a Sixth Amendment challenge. Moreover, any reasonable jury reviewing the record here would have concluded that petitioner was convicted of burglary, so any error was harmless.

Because the categorical approach employed today is difficult to apply and can yield dramatically different sentences depending on where a burglary occurred, the Court should consider whether its approach is actually required in the first place for ACCA’s enumerated-offenses clause.  With these observations, I join the opinion of the Court.

June 10, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, June 07, 2019

"Invisible Stripes: The Problem of Youth Criminal Records"

The title of this post is the title of this paper recently posted to SSRN and authored by Judith McMullen. Here is its abstract:

It is common knowledge in American society that persons who have criminal records will have a more difficult path to obtaining legitimate employment.  Similarly, conventional wisdom acknowledges the unfortunate fact that young people, on average, are more prone to engage in risky, impulsive, and other ill-advised behavior that might result in brushes with law enforcement authorities.  This article addresses the difficult situation faced by people whose now disabling criminal records were attained while they were under the age of 21.  Not only do such individuals face stigma and possible discrimination from potential employers, the efforts of today’s young people to “go straight” are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.

This article examines the broad scope and troubling effects of the intersection between policies attempting to “reform” youthful offenders, and policies giving any curious citizen access to records about a person’s youthful indiscretions, no matter how minor.  The article concludes that current practices are inconsistent with what we know about the development of young people, are inconsistent with developing U.S. Supreme Court jurisdiction, and are undermining the social goal of rehabilitating youthful offenders, and suggests that we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.

June 7, 2019 in Collateral consequences, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Thursday, June 06, 2019

En banc Sixth Circuit finds invalid an application note used to expanded the reach of "controlled substance offense" priors

In this post last year, I flagged an interesting split Sixth Circuit panel opinion on the reach of a particular important guideline provision, and that case has now led to this notable short per curiam en banc ruling in US v. Havis, No. 17-5772 (6th Cir. June 6, 2019) (available here). The ruling starts this way:

Although it is neither a legislature nor a court, the United States Sentencing Commission plays a major role in criminal sentencing. But Congress has placed careful limits on the way the Commission exercises that power. Jeffery Havis argues that the Commission stepped beyond those limits here and, as a result, he deserves to be resentenced. We agree and REVERSE the decision of the district court.

Here are the basic particulars:

In 2017, Havis pled guilty to being a felon in possession of a firearm.  See 18 U.S.C. § 922(g)(1).  Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction for a “controlled substance offense.” ...

The question before the court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes attempt crimes.  The Sentencing Commission said it does in the commentary to § 4B1.2(b).  See USSG § 4B1.2(b) comment (n.1).  But the plain language of § 4B1.2(b) says nothing about attempt crimes.  On appeal, Havis maintains that we must look to the actual text of Guideline § 4B1.2(b).  The Government asks us to defer to the Commission’s commentary.....

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself — no term in § 4B1.2(b) would bear that construction.  Rather, the Commission used Application Note 1 to add an offense not listed in the guideline.  But application notes are to be “interpretations of, not additions to, the Guidelines themselves.”  Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”). The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference.  The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.

The Guidelines’ definition of “controlled substance offense” does not include attempt crimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a controlled substance, the district court erred by using Havis’s Tennessee conviction as a basis for increasing his offense level. We therefore REVERSE the district court’s decision and REMAND for further proceedings consistent with this opinion.

June 6, 2019 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, June 05, 2019

"IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults"

The title of this post is the title of this new article available via SSRN authored by Adam Lamparello.  Here is its abstract:

For too long, the criminal law has only provided legal protections for defendants who exist on the margins, namely, those who suffer from mental retardation, insanity, or are too young to appreciate the consequences of criminal conduct.  In so doing, the criminal law has failed to address the gray area in which most defendants reside, and for which all defendants lack sufficient legal protections.  For example, at the guilt/innocence phase of a criminal trial, the legal system offers little, if any protections, for defendants afflicted with mental illnesses, personality disorders, neurological impairments, and borderline intellectual functioning.  This is fundamentally unjust, contrary to relevant empirical evidence regarding the effects of cognitive, psychiatric, and psychological disorders on culpability, and results in profoundly unjust sentences that, in many cases, are entirely disproportionate to a defendant’s culpability.  As such, the time has arrived for the courts and legislators to recognize that defendants need not be intellectually disabled, insane, or under the age of eighteen to trigger legal and constitutional protections at the guilt/innocence phase that account for a defendant’s reduced or, even, zero culpability in certain cases.

June 5, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Spotlighting the "modern-day gulags" that hold sex offenders indefinitely in "civil commitment"

A helpful reader made sure I did not miss this new extended Washington Spectator piece headlined "Modern-Day Gulags In the Golden State."  I recommend the full piece, which gets started this way:  

Back in 1997, the Supreme Court ruled that the practice known as civil commitment was legal.  This meant that 20 states — which had passed laws permitting the ongoing incarceration of sex offenders — could continue to keep the men confined even after they completed their prison terms.  (See “Sex Crimes and Criminal Justice,” from the May 2018 issue of The Washington Spectator, available here.)

All it took (and still takes) is for two psychologists to claim the men might commit a new crime and a judge to say their cases can move forward.  They are then labeled sexually violent predators (SVPs) and reincarcerated in prisonlike facilities until new trials are held — supposedly to determine if they will be civilly committed or released.  The result? Some men have been waiting for their day in court for 15 to 20 years. In the meantime, many have died.

No matter that the men already served their prison time.  Or that psychologists, psychiatrists and lawyers I interviewed insist that very few should be confined — that instead, the vast majority, many of whom are elderly or ill, should be let out.

Eric Janus, former president and dean of Mitchell Hamline Law School in St. Paul, Minn., says that continuing to incarcerate the men to comfort fearful constituents doesn’t make the public safer.  The bottom line?  “I’ve never seen numbers that show there are fewer sex offenses or re-offenses in the 20 states that have the SVP laws than in the other 30 states that don’t,” Janus says.

Then why are roughly 2,500 men still stashed away across the country?  Locking up sex offenders is always good politics, but it is also extraordinarily profitable.  And since California has the biggest budget and locks up the biggest number — three times the next three states’ combined — the Golden State offers the biggest boondoggle to explore.

To document a system awash in double-talk and dollars, I interviewed 45 lawyers, psychologists, psychiatric technicians, rehabilitation therapists, nurses, journalists, prison reform advocates and civilly committed men over eight months. Nearly all feared retaliation and asked not to be named.

As the first paragraph above indicates, this is the second piece in a series, and folks should be sure to also check out this first piece "Sex Crimes and Criminal Justice."

June 5, 2019 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Tuesday, June 04, 2019

"Reconsidering The 'Violent Offender'"

In this post from last fall, I noted the new Square One Project working to "reimagine justice" and conducting executive sessions and roundtables on the future of justice policy.  In that post, I noted some early draft of interesting papers from the project (which linked here in final form), and I just recently saw a new paper with the title that serves as the title of this post.  This new paper is authored by James Austin, Vincent Schiraldi, Bruce Western and Anamika Dwivedi, and here is part of its starting text:

People convicted of violent crimes have always been treated harshly by the criminal justice system, but in the four decades of rising incarceration rates from the early 1970s, punishment of the violent offender intensified disproportionately. Under President Bill Clinton, bipartisan consensus cemented the 1994 federal crime bill, enacting stricter sentencing laws for violent offenses at the federal level and incentivizing the same in the states.

Two decades later, even as President Barack Obama called for a reexamination of U.S. sentencing laws in 2015, he noted, “there are people who need to be in prison, and I don’t have tolerance for violent criminals” (C-SPAN 2015).  That same year, a Washington Times opinion piece by Newt Gingrich described criminal justice reform as a “rare area of bipartisan agreement in an otherwise sharply divided Congress,” but added, “we all agree that violent, dangerous criminals should be in prison, and the cost of incarcerating them is money well spent” (Gingrich and Nolan 2015).  Following suit, in 2017, Senator Kamala Harris, a self-identified “progressive” prosecutor stated that “we must maintain a relentless focus on reducing violence and aggressively prosecuting violent criminals” (Marcetic 2017).

Demonizing people as violent has perpetuated policies rooted in fear rather than fact. In this paper, we break from the tradition of punitiveness toward people convicted of violent offenses and argue that the violent offender label breaches the principle of parsimony, distorts proportionality, and fails as a predictive tool for future violent behavior. The label disproportionately affects people of color — black and Hispanic people comprise larger shares of people incarcerated for violent offenses in state prisons than white people (Bronson and Carson 2019).  In short, the violent offender label offers little to criminal justice policy.  Instead, justice policy should focus on those who actually commit violence, mitigate responses based on the experience of violent victimization, and discount the violent offender label as predictive of future violence.

Convincing policymakers and the public to change the approach to people charged with or convicted of violent offenses will require active education around the truths of violent offending alongside a significant cultural change. Affirming well-established criminal justice principles of parsimony and proportionality should take priority over a politics of fear.

We begin by detailing the social context and life histories that surround violent offending, and argue the case for parsimonious use of punishment.  While more serious and violent offenses may merit a proportionally greater response, the principle of parsimony reminds us that the punishment for violent offending should be the least coercive response necessary to achieve justice (Travis, Western, and Redburn 2014).  When we account for the life histories of victimization among incarcerated people, and the situational character of the violence in their lives, the principle of parsimony must admit mercy and forbearance.

June 4, 2019 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, May 31, 2019

"Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law"

The title of this post is the title of this notable new paper authored by Chelsea Barabas.  Here is its abstract:

Data-driven decision-making regimes, often branded as “artificial intelligence,” are rapidly proliferating across the US criminal justice system as a means of predicting and managing the risk of crime and addressing accusations of discriminatory practices.  These data regimes have come under increased scrutiny, as critics point out the myriad ways that they can reproduce or even amplify pre-existing biases in the criminal justice system.  This essay examines contemporary debates regarding the use of “artificial intelligence” as a vehicle for criminal justice reform, by closely examining two general approaches to, what has been widely branded as, “algorithmic fairness” in criminal law: 1) the development of formal fairness criteria and accuracy measures that illustrate the trade-offs of different algorithmic interventions and 2) the development of “best practices” and managerialist standards for maintaining a baseline of accuracy, transparency and validity in these systems.

The essay argues that attempts to render AI-branded tools more accurate by addressing narrow notions of “bias,” miss the deeper methodological and epistemological issues regarding the fairness of these tools.  The key question is whether predictive tools reflect and reinforce punitive practices that drive disparate outcomes, and how data regimes interact with the penal ideology to naturalize these practices.  The article concludes by calling for an abolitionist understanding of the role and function of the carceral state, in order to fundamentally reformulate the questions we ask, the way we characterize existing data, and how we identify and fill gaps in existing data regimes of the carceral state.

May 31, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Thursday, May 30, 2019

Bureau of Justice Statistics releases "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)"

The Bureau of Justice Statistics has this new press release providing highlights of this big new report titled "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)." Here are excerpts from the press release:

State prisoners released after serving time for rape or sexual assault were more than three times as likely as other released prisoners to be re-arrested for rape or sexual assault during the 9 years following their release, the Bureau of Justice Statistics announced today.  Released sex offenders represented 5% of prisoners released in 2005 and 16% of post-release arrests for rape or sexual assault during the 9-year follow-up period.

The BJS study tracked a representative sample of prisoners released in 2005 in the 30 states that were responsible for 77% of all state prisoners released nationwide and examined their arrests through 2014.  An estimated 7.7% of released sex offenders were arrested for rape or sexual assault during the 9-year follow up period, versus 2.3% of other released prisoners.

While rape and sexual assault offenders were more likely than other released prisoners to be arrested for rape or sexual assault, they were less likely than other released prisoners to be arrested for other crimes. About two-thirds (67%) of released sex offenders were arrested at least once for any type of crime during the 9 years following their release, compared to about five-sixths (84%) of other released prisoners.  Almost all prisoners who were re-arrested (96% of released sex offenders and 99% of all released offenders) were arrested for an offense other than a probation or parole violation.

This is BJS’s first recidivism study on sex offenders with a 9-year follow-up period. Fewer than half of released sex offenders were arrested for any crime within the first 3 years of release, while more than two-thirds were arrested within 9 years.  About 3 in 10 released sex offenders were arrested during their first year after release.  About 1 in 5 were arrested during their fifth year after release, and nearly 1 in 6 were arrested during their ninth year....

Overall, half of sex offenders released from prison had a subsequent arrest that led to a conviction.  However, sex offenders were less likely than all released prisoners to have a new arrest resulting in a conviction.  Within 3 years of release, 28% of persons released after serving a sentence for rape or sexual assault had an arrest that led to a conviction, compared to 49% of all released prisoners. At the end of the 9-year follow-up, 50% of sex offenders and 69% of all released prisoners had a new arrest that led to a conviction.

Sex offenders were more likely than other released prisoners to receive longer sentences and to be granted unconditional releases from prison.  The median sentence length for sex offenders was 60 months versus 36 months for all state prisoners released in 30 states in 2005.  About 32% of sex offenders were granted an unconditional release and not placed on parole, probation or some other form of community supervision. About 26% of all released prisoners were granted an unconditional release.

BJS also has created this one-page summary of the report.  In short form, this report details that sex offenders released from state prison in 2005 were less likely to be arrested for any offense than other released prisoners, but they were more likely to be arrested for a sex offense than other released prisoners.  And, as I have said before based other data from this BJS set, recidivism rates for everyone released from state prison in 2005 have been depressingly high.  It is worth emphasizing, though, that these data are focused on prisoners released back in 2005, a time when there was relatively little interest in prison rehabilitation programming or in aiding prisoner reentry.  I am hopeful that recent state reforms on these fronts might be now producing lower recidivism numbers, but only time will tell.

May 30, 2019 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Friday, May 24, 2019

Is Prez Trump gearing up for a big Memorial Day clemency push for servicemembers?

The question in this post is prompted by lots of new news reports, such as this lengthy one from Fox News headlined "Trump weighs pardons for servicemembers accused of war crimes, as families await decision." Here are excerpts:

President Trump is considering potential pardons for military members and contractors accused of war crimes as Memorial Day approaches -- deliberations that have prompted warnings from critics that the move could undermine the rule of law but also raised the hopes of their families who say the servicemembers were wrongly prosecuted.

Jessica Slatten, in an interview Thursday, told Fox News she's praying for Trump to pardon her brother, Nicholas Slatten, one of several Blackwater contractors charged in the shooting deaths of Iraqi civilians in September 2007. "Nick is innocent and our family is terrified that he will die in prison for a killing that someone else confessed to multiple times," she said. The

Blackwater case, and the 2007 massacre at the heart of it, is one of the more controversial portfolios before the president. The New York Times first reported that Trump was weighing possible pardon decisions on an expedited basis going into the holiday weekend.

Speaking to reporters Friday, Trump confirmed he’s looking at a handful of cases, while indicating he could still wait to make his decision. “We teach them how to be great fighters, and then when they fight, sometimes they get really treated very unfairly, so we’re going to take a look at it,” he said. “[The cases are] a little bit controversial. It’s very possible that I’ll let the trials go on, and I’ll make my decision after the trial.”

The review spurred harsh criticism from Democratic lawmakers as well as former top military officials, especially since not all of the accused have faced trial yet. "Obviously, the president can pardon whoever he thinks it's appropriate to pardon, but ... you have to be careful as a senior commander about unduly influencing the process before the investigation has been adjudicated," said retired Navy Adm. William McRaven, former head of Joint Special Operations Command.

Sen. Dianne Feinstein, D-Calif., said in a statement: "If he follows through, President Trump would undermine American treaty obligations and our military justice system, damage relations with foreign partners and give our enemies one more propaganda tool."

The lawyers and family members of the accused, however, insist these cases are not as clear-cut as they've been portrayed -- and, to the contrary, have been marred by legal problems. The cases include those of former Green Beret Maj. Mathew Golsteyn, who admitted to killing a suspected Taliban bomb maker; Navy SEALS Special Operations Chief Edward Gallagher, whose own SEALS turned him in for allegedly shooting unarmed civilians and killing a 15-year-old ISIS suspect in his custody with a knife; four Marine snipers who were caught on video urinating on the corpses of suspected Taliban members; and Slatten.

Slatten is one whose case did go to trial. In fact, he faced three of them. The first ended in a conviction, but it was later thrown out -- as federal judges said he should have been tried separately from three other co-defendants, one of whom said he, and not Slatten, fired the first shots.

The second ended in a mistrial, and the third resulted in a guilty verdict. He faces a mandatory life sentence without parole, but his legal team is fighting to set him free. "Prosecuting veterans for split-second decisions in war zone incidents is wrong," Slatten's attorney said in a letter to the White House counsel's office obtained by Fox News. "Prosecuting ones for killings they did not commit is doubly so."...

Three of the other Blackwater contractors involved in the incident -- Paul Slough, Evan Liberty and Dustin Heard -- were convicted of manslaughter, but the D.C. Court of Appeals ruled that their mandatory 30-year sentence was a violation of the Eighth Amendment's prohibition of cruel and unusual punishment.

The sentences had been so severe due to a charge related to the use of machine guns. The court noted that the charge was based on a statute meant to combat gang violence, not contractors in a war zone using government-issue weapons. Their cases were sent back down to a lower court, and they are awaiting new sentences.

It is unclear if Slough, Liberty or Heard are among those Trump is considering for pardons, but Slough's wife Christin is hoping for the best. "I think that we're cautiously optimistic," she told Fox News. She said that her husband is "more than well deserving" of a pardon and is hoping that Trump will come through where other administrations have not....

Martin Dempsey, former chairman of the Joint Chiefs of Staff, warned of the consequences that pardons could bring. "Absent evidence of innocence of injustice the wholesale pardon of US servicemembers accused of warcrimes signals our troops and allies that we don't take the Law of Armed Conflicts seriously," Dempsey tweeted Tuesday. "Bad message. Bad precedent. Abdication of moral responsibility. Risk to us."

Democratic presidential candidate Pete Buttigieg also expressed concern. In a Washington Post interview, the Afghanistan War veteran described the potential pardons as "so dangerous and so insulting to people who've served."

Trump's decision could come in time for the Memorial Day holiday, though he indicated Friday he might take longer. Despite warnings that a pardon might not be appropriate for cases that have not concluded, Christin Slough noted Trump is not a "traditional president." She said he is "more interested in what's right," than how things are normally done.

May 24, 2019 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, May 20, 2019

Has anyone kept track of total ACCA case GVRs through the years (or estimated total time spent on ACCA churn)?

The question in the title of this post is prompted by the one notable criminal justice element of the Supreme Court's order list this morning. At the very end of a relatively short order list, Justice Alito (joined by Justice Thomas) dissents from the Court's decision to GVR a case back to the Eleventh Circuit (which is what the US Solicitor General urged the Court to do).  Here is the full dissent:

The Court grants, vacates, and remands in this case, apparently because it harbors doubt that petitioner’s 1987 conviction under Florida law for battery on a law enforcement officer qualifies as a “violent felony” as defined by the Armed Career Criminal Act’s elements clause, which covers a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”  18 U. S. C. §924(e)(2)(B)(i).  I share no such doubt: As the case comes to us, it is undisputed that petitioner was convicted of battery on a law enforcement officer after he “‘struck [an] officer in the face using a closed fist.’”  App. to Pet. for Cert. A–1, p. 11. See Fla. Stat. §784.03(1)(a) (2018) (a person commits battery when he “[a]ctually and intentionally touches or strikes another person against the will of the other,” among other things).  Because the record makes “perfectly clear” that petitioner “was convicted of battery on a law enforcement officer by striking, which involves the use of physical force against the person of another,” App. to Pet. for Cert. A–1, at 11, I would count the conviction as a “violent felony” under the elements clause and would therefore deny the petition.  Mathis v. United States, 579 U. S. ___, ___ (2016) (ALITO, J., dissenting) (slip op., at 6).

Last year in this post, I expressed my ACCA exhaustion by asking "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".  And if I was much more clever and had endless time, I might this year try to come up with some account of ACCA jurisprudence that uses an elaborate array of Game of Thrones references (e.g., the now-long-dead residual clause could be cast as evil Joffrey and other clauses could be other Lannisters and other characters could be key SCOTUS rulings assailing or defending clauses).   

I make the GoT reference in part because I know I can find on the Internet somewhere a detailed accounting of characters killed in that long-running fictional series.  In turn, I wonder if I can find on the Internet somewhere any accounting of cases sent back by SCOTUS in the long-running (and likely never-ending) drama that is modern ACCA jurisprudence.

May 20, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, May 12, 2019

Split Sixth Circuit panel finds statutory max sentence substantively unreasonable(!) for felon-in-possession with long criminal history

A helpful reader made sure I did not miss the interesting (unpublished!) ruling of a Sixth Circuit panel late last week in US v. Warren, No. 18-3141 (6th Cir. May 10, 2019) (available here). Here is how the majority opinion in Warren starts and ends:

At Davian Warren’s sentencing hearing, both Warren and the government sought a 51-to-63-month sentence — a term that was recommended in Warren’s presentence report and that fell within the applicable Sentencing Guidelines range.  Instead, the district court imposed the statutory maximum of 120 months’ imprisonment. Warren challenges his sentence as substantively unreasonable, arguing that the district court’s explanation for its upward variance does not justify doubling the Guidelines-recommended sentence and imposing the statutory maximum.  We agree, vacate Warren’s sentence, and remand for resentencing....

To be clear, we have declined to impose a “bright-line rule” that district courts cannot rely on factors accounted for by the Guidelines in imposing a variance, Tristan-Madrigal, 601 F.3d at 636 n.1, and we have affirmed the imposition of sentences that deviate from the Guidelines to some degree based upon a defendant’s criminal history, e.g., United States v. Villarreal, 609 F. App’x 847, 850 (6th Cir. 2015) (finding that serious criminal history “warranted a slight upward variance”); United States v. Lanning, 633 F.3d 469, 476 (6th Cir. 2011) (finding that serious criminal history warranted 42-month sentence, which was “well above [the defendant’s] advisory Guidelines range of 18 to 24 months, though considerably below the statutory maximum sentence of 60 months”).  But we have also made plain that “the greater the district court’s variance, the more compelling the evidence must be.” Stall, 581 F.3d at 281–82.  Even granting that some variance based on Warren’s criminal history was justified, we are left with the definite and firm conviction that, in this case, the trial court imposed a sentence that was “greater than necessary” in roughly doubling the recommended sentence and imposing the statutory maximum based on Warren’s criminal history without a fuller consideration of whether such a sentence avoids unwarranted sentencing disparities.  Vowell, 516 F.3d at 512.

On the record before us, the district court failed to provide a sufficiently compelling justification to impose the greatest possible upward variance under the statute.  See Gall, 552 U.S. at 50; Stall, 581 F.3d at 281–82.  We are “confident that on remand, the district court can fashion a sentence that reflects [the defendant’s] actual crime, that takes into account his dangerousness to the community, and that is sufficient, but not greater than necessary, to achieve the purposes of sentencing.” Allen, 488 F.3d at 1262.

Here is how the dissenting opinion authored by Judge Batchelder gets started:

I respectfully dissent.  The majority holds that, “Because the district court’s only discussion of whether the selected sentence avoids unwarranted sentencing disparities hinges on criminal history factors addressed by the Guidelines, the district court insufficiently distinguished Warren from other offenders in the same criminal history category,” and thus the district court’s reasoning was “insufficient to justify such a stark departure from the Guidelines.”  The majority also characterizes Warren’s criminal record as “the only reason” offered by the district court for the sentencing disparity. I must disagree.  The district court’s extensive discussion of its reasoning for an upward variance did not only “hinge on criminal history factors,” and in my view the district court did sufficiently explain how Warren was different “from other offenders in the same criminal category.”  The district court’s reasoning for imposing an above-Guidelines sentence for Warren was clear: the danger to the community posed by the unique combination of his refusal to be “deterred” by prior sentences and his “violent nature.”

I always find it heartening to see a circuit court take seriously its responsibility to review sentences for substantive reasonableness, and I wonder if this kind of rulings has become a bit more common now that there is more bipartisan concern for mass incarceration and the severity of federal sentences.  As long-time readers know, I followed reasonableness review patterns closely for a number of years after Booker, but ultimately got very discouraged by this jurisprudence due to the unwillingness of many circuits to ever find within-guideline sentences unreasonable (and their eagerness to find below-guideline sentences unreasonable).  The federal defenders have this notable list of reasonableness reversals through Nov 2017, and I think it would be a great empirical project to explore in great detail how reasonableness review has operated in the 15 years since the Booker ruling.

While excited by the Sixth Circuit panel here giving teeth to reasonableness review, I am also struck by the interesting fact that the defendant in this case was not subject to the extreme mandatory sentencing enhancement of the Armed Career Criminal Act given his extended criminal history.   Given the Sixth Circuit setting here, I am reminded of a case from five years ago, US v. Young, in which a unanimous panel upheld against a constitutional challenge the 15-year ACCA sentence for a defendant with a much more modest criminal history than Davian Warren.  Of course, Eighth Amendment claims are even harder to win (unless you are on death row) than reasonableness appeals.  But comparing these defendants and the appellate outcomes serves as another reminder of how much arbitrariness infests the federal sentencing system.

May 12, 2019 in Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

A Mother's Day round up of stories in incarceration nation

Last year in this post I did a review of mom-related incarceration articles in honor of Mother's Day. And another year brings another set of these articles worth posting:

From the Boston Globe, "Criminal justice reform must focus on women who are incarcerated"

From the Idaho State Journal, "Mother's Day Behind Bars: Card contest helps Pocatello women's prison inmates cope"

From the Marshall Project, "Why Mothers Are the Unsung Heroes of Prison"

From NBCNews, "#FreeBlackMamas works to bail black mothers out of jail in time for Mother's Day"

From WNYT, "Schenectady man offers shuttle so adult kids can visit mom in prison"

May 12, 2019 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (1)

Monday, May 06, 2019

Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act

In prior posts, I have made much of a key provision of the FIRST STEP Act which allows federal courts to directly reduce sentences under the so-called compassionate release statutory provisions of 18 U.S.C. § 3582(C)(1)(A)This recent Reason article discussing the impact of this provision in a notable recent case from Montana.  The full title of this article serve as a summary of its contents: "A Terminally Ill, Wheelchair-Bound Inmate Applied for Compassionate Release. The Justice Department Argued He Wasn't Dying Fast Enough To Qualify. The FIRST STEP Act gives dying inmates the opportunity to appeal to a judge for compassionate release. This case shows why." Here are excerpts:

On Wednesday a judge ordered the release of federal inmate Steve Brittner, 55, under the new provisions of the FIRST STEP Act, a criminal justice bill passed late last year.  The judge ordered the release over the objections of federal prosecutors, who argued that Brittner, who is suffering from a malignant brain tumor, does not meet the "extraordinary and compelling" reasons to qualify for what's known as "compassionate release."

Brittner's case illustrates both the impact of the new law and the extraordinary hurdles terminally ill inmates and their families still face when trying to squeeze a small amount of mercy out of the federal government.

One provision of the FIRST STEP Act allows federal inmates to take their pleas to a judge if the federal Bureau of Prisons (BOP) rejects their petitions for compassionate release — a policy that is supposed to afford elderly and terminally ill inmates the opportunity to finish their lives among family and in relative peace....

"This is a very telling case," says FAMM president Kevin Ring.  "On one hand, the First Step Act's reforms to compassionate release worked as intended and this family prevailed.  On the other hand, it blows my mind that the Justice Department and BOP still fought tooth and nail to keep a low-level drug offender who is dying of brain cancer and bound to a wheelchair away from his family for the final weeks of his life.  They'll say they were just doing their jobs, but their job is to do justice."

A few prior related posts from before and after FIRST STEP :

May 6, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, May 02, 2019

"Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience"

The title of this post is the title of this notable new Yale Law Review Forum piece authored by James Davis III. Here is its abstract:

This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner.  It begins by revisiting W.E.B. DuBois’s theory of double consciousness.  It then offers a phenomenological exposition of double-double consciousness — the double consciousness that the black prisoner came to prison with, coupled with the double consciousness that the black prisoner develops in prison.  Thought and feeling, time and space are all different in the prison.  This world relentlessly imposes the prisoner identity on all those who inhabit it, requiring them to reconcile their new status with their conceptions of self.  Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity despite living in captivity.

May 2, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (1)

Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court

This Los Angeles Times article, headlined "Bay Area couple first to plead guilty in college admissions scandal," reports on a huge high-profile federal fraud case now getting ever closer to sentencing for one pair of defendants. Here are the details:

A Northern California couple who secured their daughters’ spots at UCLA and USC with bribes and rigged tests pleaded guilty Wednesday to fraud and money laundering offenses, the first parents to admit their guilt before a judge in an investigation that has sent shivers through circles of Silicon Valley, Wall Street, Hollywood and some of the country’s most elite universities.

Davina Isackson of Hillsborough, Calif., pleaded guilty to one count of fraud conspiracy. Her husband, real estate developer Bruce Isackson, pleaded guilty to one count of fraud conspiracy, one count of money laundering conspiracy and one count of conspiracy to defraud the United States. They will be sentenced July 31. In Davina Isackson’s plea agreement, prosecutors recommended a sentence at the low end of federal guidelines that call for 27 to 33 months in prison. For Bruce Isackson, they suggested a sentence at the low end of 37 to 46 months in prison.

Of the 33 parents charged in the investigation, the Isacksons are the only ones to have signed cooperation deals with prosecutors. If prosecutors decide the couple provided useful and credible information, they can recommend that a judge sentence them below the federal guidelines.

Investigators want to learn from the couple who at UCLA and USC knew of an alleged recruiting scheme they used to slip their two daughters into the universities as sham athletes, The Times has reported. The Isacksons’ older daughter, Lauren, was admitted to UCLA as a recruited soccer player, given a jersey number and listed on the team roster as a midfielder for an entire season, despite never having played the sport competitively, prosecutors alleged.

To ensure she got in, they said, her parents transferred $250,000 in Facebook stock to the foundation of Newport Beach college consultant William “Rick” Singer, which Bruce Isackson later wrote off on the couple’s taxes as a charitable gift....

The Isacksons tapped Singer’s “side door” the following year to have their younger daughter admitted to USC as a recruited rower, prosecutors alleged. The couple also availed themselves of Singer’s test-rigging scheme, prosecutors said, in which he bribed SAT and ACT administrators to turn a blind eye to his 36-year-old, Harvard-educated accomplice.

With the help of the accomplice, Mark Riddell, the Isacksons’ younger daughter scored a 31 out of 36 on the ACT, prosecutors said. Her father paid Singer’s foundation $100,000 and wrote it off on taxes as a charitable gift.

I find notable that federal prosecutors think that two+ years of imprisonment is necessary for one of these the Isacksons and that three+ years is necessary for the other in accord with guideline calculations. But, because it appears that these defendants may be providing "substantial assistance," the feds may ultimately be recommending lower sentences as a kind of compensation for this kind of cooperation.

Prior related posts:

May 2, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, April 23, 2019

Relying on post-Miller legislation, Illinois Supreme Court rules any juve sentence over 40 years constitutes de facto life sentence

I just saw an interesting ruling handed down last week by the Illinois Supreme Court, Illinois v. Buffer, 2019 IL 122327 (Ill. April 18, 2019) (available here), which concerns what length of sentence should be considered a de facto life sentence triggering the Eighth Amendment sentencing limitations articulated by the Supreme Court in Miller and Montgomery.  For folks following closely debates over the reach and application of the Eighth Amendment to juvenile term-of-year sentences, all of Buffer is worth reading (including the extended concurrence). Here is a key passage from the court's opinion:

[In a legislative response to Miller,] the General Assembly has determined that the specified first degree murders that would justify natural life imprisonment for adult offenders would warrant a mandatory minimum sentence of 40 years for juvenile offenders.  The legislature evidently believed that this 40-year floor for juvenile offenders who commit egregious crimes complies with the requirements of Miller.

In determining when a juvenile defendant’s prison term is long enough to be considered de facto life without parole, we choose to draw a line at 40 years.  This specific number does not originate in court decisions, legal literature, or statistical data.  It is not drawn from a hat.  Rather, this number finds its origin in the entity best suited to make such a determination — the legislature.  The Supreme Court has made clear that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance” with eighth amendment mandates pertaining to juvenile sentencing.  Graham, 560 U.S. at 75.  As this court recognized long ago, “‘[g]reat constitutional provisions must be administered with caution. *** It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’” People ex rel. Douglas v. Barrett, 370 Ill. 464, 467 (1939) (quoting Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270 (1904)).

Extrapolating from this legislative determination, a prison sentence of 40 years or less imposed on a juvenile offender provides “‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75).  We hereby conclude that a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.

April 23, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, April 18, 2019

"Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders"

The title of this post is the title of this 2018 article authored by Jalila Jefferson-Bullock recently posted to SSRN. Though authored before the passage of the FIRST STEP Act, the article is still particularly timely in light of that new law's various provisions enabling the moving certain defendants out of prison and into home confinement.  Here is the article's abstract:

Sentencing reform appears resurrected.  Following a brief hiatus and an expectedly unwelcoming recent federal response, sentencing reform is again reemerging as a major initiative.  Congress and the several states are poised to immediately accomplish major reform of the United States criminal sentencing structure.  Proposals that would, among other initiatives, drastically reduce criminal sentences, restore rehabilitative programs to inmates, generate sentencing parity, normalize probation for low-level offenses, and shrink the overall prison footprint are ambling through various legislative processes throughout the country.  Though groundbreaking and certainly welcome, these reforms largely ignore the special needs of the imprisoned elderly.  One of the most foreseeable, yet ironically ignored, consequences of 1980's and 1990's harsh sentencing laws, is the dramatic upsurge in prison population through the predictable process of human aging.  Coined the prison “silver tsunami” phenomenon, surging numbers of elderly inmates raises significant moral, health, and fiscal implications deserving keen scrutiny.  It is imperative, then, that any overhaul of criminal sentencing focuses on how to meaningfully address the graying of America's prisons.

April 18, 2019 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, April 15, 2019

"Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement"

The title of this post is the title of this new empirical article now available via SSRN and co-authored by an especially impressive list of folks: Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell.  Here is its abstract:

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States.  To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment.  This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement.

Our analysis uses a sample of 1,900 cases drawn from 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002.  Contrary to the teachings of Furman, we found that several of California’s “special circumstances” target capital eligibility disparately based on the race or ethnicity of the defendant.  In so doing, the statute appears to codify rather than ameliorate the harmful racial stereotypes that are endemic to our criminal justice system.  The instantiation of racial and ethnic stereotypes into death-eligibility raises the specter of discriminatory intent in the design of California’s statute, with implications for constitutional regulation of capital punishment.

April 15, 2019 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Saturday, April 13, 2019

Noting a notable federal prisoner now benefiting from the FIRST STEP Act's elderly offender home confinement program

The New York Times has this notable new article focused on one notable federal offender now benefiting from the FIRST STEP Act.  The headline of the piece indirectly reveals some of its themes: "He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul."  Here are some excerpts from the piece:

Three weeks ago, a 69-year-old man convicted of bank fraud quietly left a federal prison camp in Cumberland, Md., and moved into a friend’s one-bedroom apartment in Manhattan. He was one of the early inmates to benefit from a criminal justice bill signed into law by President Trump.  The law, the First Step Act, offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities.

But one person who benefited from the law was Hassan Nemazee, the prisoner at Cumberland, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.  He was a national finance chairman for Hillary Clinton’s 2008 presidential campaign and later raised hundreds of thousands of dollars for Barack Obama’s first presidential contest.

Mr. Nemazee, who is serving the rest of his sentence in home confinement, acknowledged in interviews that he was not a fan of Mr. Trump, but he felt personally indebted to the president and his aides for pushing through “the most significant prison reform legislation in a generation.”...

Mr. Trump said recently at the White House that “unfair sentencing rules were contributing to the cycle of poverty and crime,” and since the First Step Act’s passage, more than 500 people with “unfair sentences have been released from prison and are free to begin a new life.”  But Mr. Nemazee left prison under a less publicized part of the bill that allows certain offenders who are over 60 and not considered a threat to others to be released into home confinement if they have completed two-thirds of their sentence.

In home confinement, Mr. Nemazee does not wear an ankle bracelet, but officials may call him on a landline late at night or early in the morning to verify he is at home. He may be summoned for a urine test at any time and must submit his weekly schedule for approval, he said.  Still, it feels a lot like freedom.  He may leave his apartment to go to work, the gym, religious services or appointments with his doctors and lawyers. He may also go out to lunch, “which is always a treat, given where I have been the last eight and a half years.”...

The Bureau of Prisons has said that since the bill’s passage, 10 prisoners — of 23 thus far deemed eligible — have been released into home confinement. The bureau would not identify the prisoners or comment on their cases.  Another is reported to be a white-collar criminal named Herman Jacobowitz, 60, who pleaded guilty in Brooklyn in 2005 in another large fraud case and was sentenced to 15 years, according to court papers and a lawyer familiar with the case. Mr. Jacobowitz could not be reached for comment.

Some of many prior related posts on FIRST STEP Act implementation:

April 13, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0)

Friday, April 12, 2019

Henry Montgomery (of Montgomery v. Louisiana) denied parole yet again at age 72

A few years ago Henry Montgomery won in the Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively.  But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.  Last year, Montgomery was denied parole as detailed in this prior post, and yesterday he was denied parole again as reported in this local article headlined "After 55 years in prison, Baton Rouge man key to Supreme Court ruling again denied freedom." Here are some details: 

Henry Montgomery's victory at the U.S. Supreme Court in 2016 created a way for hundreds of prisoners like him — those convicted of horrific crimes while juveniles — to earn their freedom by demonstrating their rehabilitation since their youth.  Yet on Thursday, Montgomery was again denied his own opportunity at a life beyond bars.

The Louisiana Committee on Parole denied Montgomery his freedom for the second time in 14 months, a decision that will keep the 72-year-old confined at the Louisiana State Penitentiary at Angola, where he has served 55 years.

At age 17, Montgomery killed East Baton Rouge Sheriff's Deputy Charles Hurt in 1963 and was sentenced to life in prison. But three years ago, the case played the central role in a landmark ruling on juvenile sentences, Montgomery v. Louisiana, in which the U.S. Supreme Court ruled youth offenders cannot be sentenced to mandatory life without parole, even in prior cases.

And though one of the parole board members Thursday morning cited the court's decision directly, noting "children who commit even heinous crimes are capable of change" — it was not enough. The board must vote unanimously for parole to be granted, and one member, Brennan Kelsey, voted against Montgomery's parole.

Kelsey said he believes the septuagenarian still needs to take more classes and complete more programming. "It's your responsibility to continue to work," Kelsey told Montgomery through a video call between Baton Rouge and the Angola prison.  But Montgomery's attorney, Keith Nordyke, responded that he's "not sure what programs are left."

"He's been through all of the programs he could take," Nordyke said.  "He's been a force for change and a force for good."  Nordyke told the board that Montgomery was imprisoned before programming was available to those sentenced to life terms, but even then, Montgomery started a boxing club that gave young inmates a positive outlet.  The lawyer said Montgomery was involved in a Methodist church ministry and organized a literacy program for fellow inmates that included helping them write letters home when they could not read or write themselves.  Since programming became available to Montgomery in recent years, he has completed a variety of classes, like anger management and victim awareness.

"We're not quitting, we're not giving up," Nordyke said, calling the decision Thursday disappointing.  He said he's unsure what his legal team will do next, but he worries about waiting two more years to again go before the parole board, which is the typical waiting period after a decision. Montgomery will turn 73 in June.  "I'm not sure, when you're 73, that two years from now is an adequate remedy for something the Supreme Court ordered," Nordyke said....

The board reconsidered Montgomery's case on Thursday because they conceded an error had occurred during his previous hearing, at which he was first denied freedom. At that hearing in February 2018, two of the three parole committee members voted to deny Montgomery parole, primarily citing Montgomery's lack of classes as reasoning for their vote. But Nordyke requested the board reconsider the case through the board's appeal-like process, alleging the voting members misapplied the laws on youthful offenders in their decision. His request was granted.

The three parole board members on Thursday were different from the three who voted on Montgomery's case last year, yet Kelsey echoed a similar request about more classes, a claim Nordyke called unfair.  He said prison officials worked in the last year to find Montgomery additional classes to take after the last hearing, but it was still not enough. "I do feel like the goalposts are moving," Nordyke said. He said there are classes on parenting and substance abuse that Montgomery has not taken, but those courses would not make sense for a 73-year-old man without children who has never struggled with substance abuse....

The warden of the Louisiana State Penitentiary at Angola, Darryl Vannoy, testified to the board that Montgomery has no issues at the prison.  During Montgomery's 55-year incarceration, prison officials said, he has been written up for breaking rules only 23 times, and only twice in the last 17 years.  The last two write-ups, in 2013 and 2014, were for smoking in an unauthorized area and leaving clothes on his locker. "He's worked at the same job for 25 years," Vannoy said. Montgomery works at the prison's silk-screen shop. "He's not a problem for us. Real low-key guy, you don't hear anything out of him."...

Hurt's grandson, Lafourche Parish Sheriff's Capt. J.P. deGravelles, said while Montgomery has apologized to his family, that was the first time he heard Montgomery take responsibility for the crime. However, he and his aunt, Linda Hurt Wood, asked the parole board on Thursday to keep Montgomery behind bars. "I did go to Angola and I do forgive Henry Montgomery," Wood said. "Mr. Montgomery received a life sentence and so did we. … I will never have my father back."

DeGravelles said their family was disappointed to learn Montgomery would get a second chance in front of the parole board, less than two years from the last hearing. Typically, prisoners have to wait two years before requesting another parole consideration, but the timeline was expedited when the board granted Montgomery's reconsideration appeal — a process about which deGravelles said his family was kept in the dark, yet he was glad to see how it ended up. "Nobody comes out ahead on this," deGravelles said. "Mr. Montgomery is where he needs to be, and that's where he needs to stay."

April 12, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 09, 2019

"Who Belongs in Prison?"

The title of this post is the headline of this first-rate New Yorker article by Adam Gopnik discussing lots of aspects of modern criminal justices systems and a lots of first-rate recent books about these systems. (Emily Bazeon's great new book titled "Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.") I recommend the lengthy piece in full, and the subheadline summarizes just one of its themes: "A truly just system must do more than protect the rights of the innocent; it must also respect the humanity of the guilty." Here is a small excerpt from a long piece:

The heroic rhetoric of class warfare that sometimes inflects these books can mask the truth that the progress in the past decade concerning the crisis of incarceration has in large part been made on classically American reformist terms.  As Bazelon ably reports, the reality of the anti-incarceration movement in this country is that rich philanthropists have been footing much of the bill, prompted simply by evident injustice.  George Soros’s foundations have poured millions into supporting anti-incarceration initiatives, and so, astonishingly, have the Koch brothers — some libertarians really do like to see people at liberty, it seems. 

But what all of these efforts appear to have in common is an attempt to move us out of the crisis of incarceration by moving us past the question of “guilt,” making us see that the categories of guilty and innocent, whether applied to the wrongdoer or to the one done wrong, miss harder social truths, and replace empathy with bureaucratized vengeance. “The crime is what you did, it’s not who you are” is an aphorism of anti-incarceration activists, and this perspective enlivens almost all the reformist literature.

And so the plethora of new books can sometimes seem to sit just outside the hardest issue.  The hardest cases aren’t those of harmless victims of mandatory-minimum laws....  The cases that test our convictions involve offenders whose crimes have had real social and human costs. What do we do about the violent carjacker, the armed robber, the brutal assailant?  Such people exist, of all kinds and colors, and wishing away the problem of impulsive evil by assimilating it to the easier problem of our universal responsibility for social inequities doesn’t help solve it.  It’s often said that white-collar criminals should not be treated better than no-collar ones, and yet the taste for punishing the white-collar miscreant is no less vindictive — indeed, there’s depressing social-science research showing that, once people are made aware of the inequities of the American criminal-justice system, they want even harsher penalties for white-collar offenders.  We should all be in this misery together.

April 9, 2019 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, April 08, 2019

Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal

This press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty," reports on the latest developments in the highest profile college fraud case I can recall. Here are the basics:

Thirteen parents charged in the college admissions scandal will plead guilty to using bribery and other forms of fraud to facilitate their children’s admission to selective colleges and universities. One coach also agreed to plead guilty.

The defendants were arrested last month and charged with conspiring with William “Rick” Singer, 58, of Newport Beach, Calif., and others, to use bribery and other forms of fraud to secure the admission of students to colleges and universities. The conspiracy involved bribing SAT and ACT exam administrators to allow a test taker to secretly take college entrance exams in place of students, or to correct the students’ answers after they had taken the exam, and bribing university athletic coaches and administrators to facilitate the admission of students to elite universities as purported athletic recruits....

All of the defendants who improperly took tax deductions for the bribe payments have agreed to cooperate with the IRS to pay back taxes.

Plea hearings have not yet been scheduled by the Court. Case information, including the status of each defendant, charging documents and plea agreements are available here.

The charge of conspiracy to commit mail fraud and honest services mail fraud provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of conspiracy to commit money laundering provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $500,000 or twice the value of the property involved in the money laundering. The charge of conspiracy to defraud the United States provides for a maximum sentence of five years in prison, three years of supervised release, and a fine of $250,000. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and other statutory factors.

Though the recitation of statutory maximum sentence sounds really serious, clicking through to the plea agreements reveals that the relatively low dollar amounts in these frauds entails relatively low guideline sentencing ranges. Specifically, for Felicity Huffman the government calculates in the plea agreement a guideline range at offense level 9 to result in a sentence range of 4 to 10 months. Notably, Huffman disputes the amount of "loss or gain" in her offense and suggests her guideline sentencing range is only 0 to 6 months.  And, significantly, the government agrees to advocate for only the low end of its calculated range, so it will be seeking only a four month sentence for Huffman.

I have not yet had a chance to look though all the other plea agreements, but I would guess their terms are comparable.  And especially because all these defendants are already suffering (and will continue to suffer) all sorts of non-traditional punishments, I am not really bother at all that they are not looking at severe guideline ranges.  But perhaps others are, and I welcome their comments on whether and how they think justice is being served in these cases now that we are moving into the sentencing phase.

April 8, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (8)

Thursday, April 04, 2019

"When 'Violent Offenders' Commit Nonviolent Crimes"

The title of this post is the title of this interesting recent Marshall Project piece. I recommend it in full, and here are excerpts:

[M]any of the “violent offenders” in U.S. prisons are there for crimes that not everyone would classify as violent.  According to a Marshall Project survey of all 50 states’ laws, you can get charged and convicted as a violent criminal in more than a dozen states if you enter a dwelling that’s not yours.  That might seem like a property crime, but it’s often deemed a violent one: burglary.  Similarly, purse snatching is considered a “violent” offense in several states. So are the manufacture of methamphetamines and theft of drugs.

Our survey of statutes yielded even more surprising examples.  In Kentucky, committing “Possession of Anhydrous Ammonia in an Unapproved Container with Intent to Manufacture Methamphetamine” a second time puts you in a “violent” category under the law — and you’ll face 20 to 50 years in prison. In Minnesota, aiding an attempted suicide is listed as violent, as is marijuana possession (depending on the amount).  In North Carolina, trafficking a stolen identity and selling drugs within 1,000 feet of a school or playground are both violent crimes, according to the state’s “habitual violent offender” statute.  And in New York, it’s deemed a violent felony to simply possess a loaded gun illegally — with “loaded” defined as simply being in possession of bullets....

Those classifications aren’t just semantics: When a crime is described as “violent,” there are all kinds of consequences for incarcerated people. Anyone convicted of such offenses can face longer mandatory-minimum sentences, the triggering of “three-strikes-you’re-out” and “habitual violent offender” penalties and, in immigration cases, are at risk of deportation.

They can also be disenfranchised at the ballot box: Some states let certain nonviolent ex-prisoners vote, but not violent ones. And they are often placed in different housing behind bars, according to their supposed violence level.

Rethinking whether these kinds of crimes should be considered violent would change the conversation about what must be done to cut the incarcerated population, some advocates of prison reform say.  Take two states — Minnesota and North Carolina — that classify several questionable crimes as violent.

In Minnesota, approximately 3,092 prisoners out of a total imprisoned population of 9,849 were locked up for “violent” crimes that, on second glance, might not seem all that violent, according to a Marshall Project analysis of July 2018 data. These include burglary—entering a building without consent and with the intent to commit a crime — and drug crimes.  In North Carolina, a significant portion of those behind bars — 7,532 of about 35,700 total prisoners — were incarcerated as of 2018 for crimes deemed violent according to the state’s habitual violent offender law.

These include “habitual breaking and entering,” trafficking in stolen identities, embezzlement of large amounts of money and obtaining property by false pretenses, as well as drug dealing.  If those convicted of such offenses ever get re-arrested, they could, at the bail hearing, be considered to have a violent criminal history — and therefore be sent to jail instead of getting released on bond or supervision.  If they are later released but fail a urine test, they could be returned to prison as a violent offender, even though testing positive for drugs is not a violent crime....

Phillip Kopp, an assistant professor of criminal justice at California State University, Fullerton, said that at the very least, rethinking whether the crime of burglary is “violent” would reframe our understanding of who exactly is in our prisons—and who should potentially be let out.  “Burglary just means entering a structure with the ‘intent’ to commit some kind of crime therein—even if you step right back out and nothing else happens,” he said. “It’s just going inside; anything you do additionally, like robbery, would be charged as an additional offense.”  We should ask ourselves why exactly that’s considered violent, he said.

Kopp acknowledges that some burglaries are categorized as violent because of the implied threat of force, or the potential of inflicting psychological violence upon a victim who comes home to see that his or her personal space has been invaded.  But in this country, he pointed out, only about 3 percent of the millions of burglaries that take place every year involve any actual violence against a human being.

Thinking about how better to punish such crimes — rather than just focusing on shoplifting and low-level drug possession — might be the next step for states that are serious about prison reform.

April 4, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Wednesday, April 03, 2019

Fourth Circuit panel rejects claim that Virginia Parole Board must consider age-related characteristics for juve lifer

A helpful reader alerted me to an interesting new Fourth Circuit panel ruling handed down yesterday in Bowling v. Director, Virginia Dep't of Corrections, No. 18-6170 (4th Cir. April 2, 2019) (available here).  The start of the Bowling opinion provide a flavor for the constitutional arguments framed by the defendant which did not strike a chord with the panel:

This appeal arises from the Virginia Parole Board’s (“the Parole Board”) repeated denial of parole to Thomas Franklin Bowling (“Appellant”).  Appellant was sentenced to life with parole when he was 17 years old.  He first became eligible for parole on April 26, 2005.  The Parole Board has considered his eligibility and denied him parole annually ever since. Appellant alleges that, because the Parole Board was not specifically required to consider age-related characteristics unique to juvenile offenders when it has processed his parole applications, the Parole Board’s repeated denial of his applications violated his Eighth and Fourteenth Amendment rights.

On that ground, Appellant initiated this action against the Director of the Virginia Department of Corrections (“Appellee”).  Appellee moved to dismiss Appellant’s complaint, and the district court granted Appellee’s motion to dismiss.  Regarding Appellant’s Eighth Amendment claim, the district court held that juvenile-specific Eighth Amendment protections do not apply to Appellant because he was sentenced to life with parole.  Regarding Appellant’s Fourteenth Amendment claims, the district court held that the Parole Board procedures satisfy procedural due process requirements.  For the reasons stated below, we affirm the decision of the district court.

Here is a spare paragraph from the heart of the opinion:

Appellant asks this court to extend the Supreme Court’s Eighth Amendment jurisprudence to juvenile parole proceedings and find that it is cruel and unusual punishment for a parole board to deny juvenile offenders parole without specifically considering age-related mitigating characteristics as a separate factor in the decisionmaking process.  Granting that request would require us to extend the legacy of Roper, Graham, and Miller in two ways.  First, we would have to find that juvenile-specific Eighth Amendment protections extend to juvenile homicide offenders sentenced to life with parole.  And second, we would have to find that those protections extend beyond sentencing proceedings.  We decline to go so far.

April 3, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"Limiting Identity in Criminal Law"

The title of this post is the title of this interesting new article recently posted to SSRN and authored by Mihailis Diamantis.  Here is its abstract:

People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person.  This transience of human identity has profound implications for criminal law.  Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know that the ordinary processes of growth, maturation, and decline alter us all in fundamental respects.  Many young adults find it hard to identify with their adolescent past. Senior citizens often reflect similarly on their middle years.  However tightly we hold on to the people we are today, at some tomorrow we inevitably find ourselves changed.

Criminal justice has not come to grips with this aspect of the human condition.  The law — by imposing lengthy sentences, allowing enduring consequences of conviction, and punishing long bygone violations — assumes that people’s identities remain fixed from birth to death.  If people do change with time, these policies must violate the criminal law’s most basic commitment to prosecute and punish present-day people only for crimes they (and not some different past person) committed.

Drawing on contemporary psychology and philosophy of personal identity, this Article concludes that criminal law punishes too often and too severely. Lengthy prison terms risk incarcerating people past the point at which their identity changes.  Elderly inmates who have languished on death row for decades should have a new claim for release — that they are now different people, innocent of the misdeeds of yesteryear.  One-time felons should recover lost civil rights sooner.  And defendants should benefit from juvenile process well into their twenties, when personal identity first begins to stabilize.  By confronting the challenges posed by the limits of personal identity, the criminal law can become more just and humane.

April 3, 2019 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, April 01, 2019

"Miller v. Alabama and the Problem of Prediction"

The title of this post is the title of this new paper authored by Mary Marshall now available via SSRN. Here is its abstract:

Beginning in 2010, the Supreme Court severely limited states’ ability to impose juvenile life without parole sentences. In a seminal case, Miller v. Alabama, the Court banned mandatory life without the possibility of parole sentences for juveniles and declared that only those juveniles that are “irreparable corrupt” should be made to spend the rest of their lives in prison.  While Miller has been the subject of much scholarly debate, there has yet to be any discussion of a core instability at the center of Miller’s mandate: By limiting life without parole sentences only to those juveniles who are “irreparably corrupt” the Court is asking sentencers to predict whether a juvenile will be a danger decades down the road and after a long prison sentence.  This Note uses legal and social science literature around the impossibility of long-term predictions about juvenile development to argue that the requirement of prediction in Miller prevents just application of the decision and argues that this instability should lead to a ban on juvenile life without parole sentences.

April 1, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 28, 2019

"Decarcerating America: The Opportunistic Overlap Between Theory and (Mainly State) Sentencing Practise as a Pathway to Meaningful Reform"

The title of this post is the title of this new paper available via SSRN and authored by Mirko Bagaric and Daniel McCord. Here is its abstract:

Criminals engender no community sympathy and have no political capital. This is part of the reason that the United States has the highest prison population on earth, and by a considerable margin. Incarceration levels grew four-fold over the past forty years. Despite this, America is now experiencing an unprecedented phenomenon whereby many states are now simultaneously implementing measures to reduce prison numbers. The unusual aspect of this is that the response is not coordinated; nor is it consistent in its approach, but the movement is unmistakable.

This ground up approach to reducing prison numbers suffers from the misgiving that it is an ineffective solution to a complex issue. While prison numbers are reducing, it is at a glacial rate. Pursuant to current trends, it would take five decades to reach incarceration levels that are in keeping with historical levels in the United States, and which are in line with prison numbers in most other countries. The massive growth in prison numbers during the latter half of the twentieth century was as a result of a coordinated tough on crime strategy, spawned by the War on Drugs and the implementation of harsh mandatory sanctions. The response to these policy failings must be equally coordinated and systematic in order to be effective.

This Article provides the theoretical and empirical framework that can be used by lawmakers to tap into the community appetite to reduce prison numbers to make changes that are efficient and normatively sound, and which will significantly accelerate the decarceration process. In broad terms, the Article proposes a bifurcated system of sentencing, whereby sexual and serious violent offenders are imprisoned while other offenders (such as those who commit property, immigration and drug offenses) are dealt with by other forms of sanctions. The changes will especially benefit African American and Hispanics, given that they are incarcerated at disproportionately high levels. The empirical evidence also suggests that the proposed reforms will not result in an increased crime rate.

March 28, 2019 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Thursday, March 21, 2019

"Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21"

The title of this post is the title of this notable new paper authored by John Blume, Hannah Freedman, Lindsey Vann and Amelia Hritz.  Here is its abstract:

Nearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under 18 at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience.  In the intervening years, however, much has changed in juvenile sentencing jurisprudence, the legal treatment of young people, and neuroscience.  These changes beg the question: Why 18?  Is the bright-line rule that the Court announced in Roper still constitutionally valid or do the changes since 2005 now point to a new cutoff at 21?

To answer those questions, this Article considers post-Roper developments in the relevant domains to make the case that the 18-year-old constitutional line should be extended to age 21.  It does so by applying the Supreme Court’s evolving-standards-of-decency methodology.  Specifically, the Article examines all death sentences and executions imposed in the United States post-Roper and looks at the current state of neuroscientific research that the Court found compelling when it decided Roper.

Two predominant trends emerge.  First, there is a national consensus against executing people under 21.  This consensus comports with what new developments in neuroscience have made clear: people under 21 have brains that look and behave like the brains of younger teenagers, not like adult brains.  Second, young people of color are disproportionately sentenced to die — even more so than adult capital defendants.  The role of race is amplified when the victim is white.  These trends confirm that the logic that compelled the Court to ban executions of people under 18 extends to people under 21.

March 21, 2019 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (5)

Tuesday, March 19, 2019

"Mass Incarceration: The Whole Pie 2019"

Pie2019The Prison Policy Initiative has today posted the latest, greatest version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how people are incarcerated in the United States.  The extraordinary pies produced by PPI impart more information in one image than just about any single resource I can think of.  Here is part of the report's introductory text and the concluding discussion on my favorite law-nerd version of pie day:

Can it really be true that most people in jail are being held before trial?  And how much of mass incarceration is a result of the war on drugs?  These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented.  The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on.  As public support for criminal justice reform continues to build, however, it’s more important than ever that we get the facts straight and understand the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement.  The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 109 federal prisons, 1,772 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.  This report provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement.  The detailed views bring these overlooked systems to light, from immigration detention to civil commitment and youth confinement.  In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily population suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal justice system.  Every year, over 600,000 people enter prison gates, but people go to jail 10.6 million times each year.  Jail churn is particularly high because most people in jails have not been convicted.  Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain behind bars until their trial.  Only a small number (less than 150,000 on any given day) have been convicted, and are generally serving misdemeanors sentences under a year....

Now that we can see the big picture of how many people are locked up in the United States in the various types of facilities, we can see that something needs to change.  Looking at the big picture requires us to ask if it really makes sense to lock up 2.3 million people on any given day, giving this nation the dubious distinction of having the highest incarceration rate in the world.  Both policymakers and the public have the responsibility to carefully consider each individual slice in turn to ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to money bail, can meaningfully reduce our society’s use of incarceration.  At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

March 19, 2019 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Monday, March 18, 2019

"Don't Overlook First Step Act Pilot Programs"

The title of this post is the title of this notable new Law360 commentary authored by By Addy Schmitt and Ian Herbert.  I recommend the piece in full, and here are excerpts (with footnotes omitted):

Much attention has been paid to the provisions in the law designed to address systemic issues for defendants in drug cases.... The First Step Act also includes numerous changes to address quality-of-life issues for current inmates and to help individuals transition back to society following their incarceration....

However, two programs are particularly notable because of the potential they hold to reduce prison sentences for certain prisoners by up to one-third.  The first is a pilot program that will allow the Bureau of Prisons to release to home confinement inmates over 60 years old who have served at least two-thirds of their sentences.  The second is a recidivism reduction program that will allow prisoners to earn credit worth up to one-third of their sentences for participation in programming designed to reduce recidivism.

Both programs have their faults and come with caveats.  As others have written, Congress gave the attorney general great power to decide how to implement the programs, which could hamper their effectiveness.  But combined, the two programs have the potential to offer substantial reductions in sentences, particularly to elderly and nonviolent prisoners....

One of the most profound changes that the First Step Act makes for currently incarcerated individuals is to reauthorize and expand a pilot program that allows for early release to home confinement for elderly, nonviolent prisoners.

The pilot program was created by the Second Chance Act of 2007, but it contained some important restrictions that reduced the impact of the program.  First, it was not required at all BOP facilities.  Second, it only applied to prisoners over 65 years old who had served the greater of 75 percent of their sentence or 10 years in prison.  Third, prisoners who were serving life sentences or who had been convicted of crimes of violence, sex offenses or terrorism-related offenses were ineligible, as were prisoners who attempted to escape.

The First Step Act changed the first two of these restrictions (though it left the requirements in the third).  The First Step Act directed the attorney general to make the program available at all BOP facilities, reduced the eligibility age to 60 years old, reduced the amount of time that a prisoner had to serve before being eligible from 75 percent to two-thirds of his or her sentence, and, most importantly, removed the requirement that the prisoner must serve at least 10 years prior to becoming eligible.

The result of these changes is that nonviolent prisoners over 60 could serve as much as one-third of their prison sentence in home confinement rather than in a BOP facility.

Unfortunately, these substantial reductions in terms of imprisonment are not yet guaranteed.  Though the law says that the attorney general “shall conduct a pilot program” in all facilities, it does not require release of anyone, saying only that the attorney general “may release some or all eligible elderly offenders” to home confinement.

However, while the attorney general is not required to release any prisoners under the pilot program, a separate provision of the First Step Act mandates that the BOP shall “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted” under the law.  Thus, the elderly release pilot program, coupled with the directive to move low-risk prisoners to home confinement, sends a clear signal that Congress intended for the attorney general to utilize the benefits of home confinement.

The pilot program began with the start of fiscal year 2019, and the attorney general is given authority to release eligible offenders upon written request from the BOP or prisoners who meet the criteria described above.  For that reason, nonviolent prisoners over 60 years old who have served more than two-thirds of their sentence should request to take part in the program immediately.

March 18, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, March 13, 2019

Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal

Now that Paul Manafort's sentencings are concluded (basics here and here, new commentary from Ellen Podgor here), perhaps it is time to move on to the next high-profile "celebrity" white-collar case.  Though few cases will have the political intrigue of the Manafort matter, there is plenty of star power surrounding the new indictments yesterday revealing a nationwide conspiracy that facilitated cheating on college entrance exams and the admission of students to elite universities as purported athletic recruits.

For various reasons, I generally tend to avoid making sentencing calculations or predictions before there are convictions.  But this new piece at Law&Crime, headlined "‘I Would Make an Example’: Legal Experts Weigh in on Prison Time Lori Loughlin and Felicity Huffman Could Face," has various experts already chiming in.  Here is part of the piece:

Huffman allegedly paid The Key Foundation Worldwide $15,000 “to participate in the college entrance exam cheating scheme on behalf of her oldest daughter,” according to the government’s lengthy indictment.  Loughlin allegedly made $500,000 worth of fake donations to the same charity in order to secure fake rowing profiles for both of her daughters–when neither daughter actually rowed.

So, are these parents actually facing prison time or might they manage to skate? Law&Crime asked the experts and they had answers.

Former Assistant U.S. Attorney and current Pace Law Professor Mimi Rocah thinks a little time behind bars is within the realm of possibility.  “Given the amount of money involved for each of them, particularly Loughlin, and the sophistication of the scheme, they would likely be facing jail time,” Rocah told Law&Crime.  “However, it will be within the sentencing Judge’s discretion as to whether to follow the guidelines or not and a lot of different factors will play into that.”

CNN legal analyst, criminal defense attorney and University of Georgia Law Professor Page Pate ventured his guesses as to what any prospective sentences might look like for the embattled actresses. Over the course of a series of emails, Pate said the time served in each case would depend “mostly on the ‘loss amount’ (how much money the government can tie to the alleged fraud)” and explained that “federal sentencing guidelines for fraud are primarily based on the amount of money involved, how sophisticated the fraud was what role the person played in the alleged scheme, and whether they were the ‘leader, middle, [or] low-end.'”

With that in mind, Pate estimated that Full House‘s Loughlin was facing “37-46 months if convicted at trial” and between “27-33 months [if she enters a] guilty plea.”  Since Huffman is alleged to have spent quite a bit less, Pate estimated that the Desperate Housewives actress was facing “12-18 months if convicted at trial” whereas she would be looking at “8-14 months (or possible probation)” if she were to plead guilty.

Julie Rendelman is a former prosecutor and currently a defense attorney working in New York City.... While noting that it was “a bit early” to say anything for sure about potential time behind bars, Rendelman said it was a distinct possibility due to the actress’ high profiles.  “My guess is that if the evidence is as strong as it appears, their attorneys will likely advise them to cooperate with the US attorney’s office to provide information on other individuals in the scheme, and hope that their cooperation along with any potential mitigation will help them to avoid jail time,” Rendelman said.  “Keep in mind, that the government/presiding judge may want to make an example of them to deter the act of using wealth to manipulate the system.”

March 13, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

Paul Manafort gets additional (consecutive) 43 months in prison at second sentencing, resulting in 7.5 year total term

As reported in this Politico piece, headlined "Paul Manafort’s prison sentence was upped to seven-and-a-half years on Wednesday, bringing an end to Robert Mueller’s most public legal battle and capping a spectacular fall for the globe-trotting GOP consultant and former chairman of the Trump campaign." Here is more:

It's the longest sentence by far for anyone ensnared in Mueller’s nearly two-year-old probe. Manafort’s punishment reached its final length after U.S. District Court Judge Amy Berman Jackson on Wednesday gave Manafort an additional 43 months in prison for a series of lobbying and witness tampering crimes he pleaded guilty to last fall. Manafort also must serve nearly four years for his conviction in a jury trial for financial fraud crimes in Virginia.

Manafort, wearing a dark suit and seated in a wheelchair, issued a full-throated and blunt apology shortly before Jackson handed out his second — and final — prison sentence in the Mueller case. “I am sorry for what I have done and for all the activities that have gotten us here today," said Manafort, contrite and stone-faced.

But Jackson swiftly upbraided Manafort's penitence, insinuating that it was insincere and hinting that she believed Manafort had previously calibrated his statements to appeal to President Donald Trump for a pardon — the only way out of a multi-year prison sentence at this point for the ex-Trump aide, who turns 70 next month.

"Saying I'm sorry I got caught is not an inspiring plea for leniency," Jackson said, exhaustively recounting Manafort's deception and propensity for hiding money in offshore accounts, ducking millions in U.S. taxes, tampering with witnesses and repeatedly failing to come clean when confronted with his behavior.

"Why?" she asked. "Not to support a family but to sustain a lifestyle at the most opulent and extravagant level," she said, a reference to the high-end suits, designer clothes, custom rugs and luxury cars that Manafort collected over the years. "More houses than one man can enjoy, more suits than one man can wear."...

Manafort made his plea to Jackson about charges brought in the D.C. court, which centered on his lobbying work in Ukraine and conspiring with a suspected Moscow-linked business associate to tamper with potential witnesses. But his shorter-than-anticipated Virginia sentence was hanging over the entire court proceedings.

Jackson stressed that she was not there for a "review or revision" of the Virginia sentence, which drew condemnation from some in the legal community who felt the punishment was unfairly brief, given the scope of the crimes and sentencing guidelines that called for Manafort to receive between about 19 and 24 years....

As a result, one major question facing Jackson, an Obama appointee, was whether she would make Manafort serve his D.C. sentence after he completes the punishment from his Virginia case, or whether she would allow him to serve them both concurrently. Manafort has been using a cane and wheelchair in his recent court appearances and has asked for leniency by citing his deteriorating health, as well as the strains of solitary confinement at the Alexandria, Va., detention center.

Ultimately, Jackson split her decision, making some of her sentence — 30 months — concurrent with the Virginia punishment, but ordering that the rest be served consecutively. Manafort’s nine months already spent in jail since his bond was revoked last June for witness tampering will count toward his time served, meaning Manafort is on track to be released from federal custody around the end of 2025.

By my calculations, if Manafort were to get all available good time credit, he might be eligible for release in 2024.  And, thanks to the FIRST STEP Act, Manafort might also eventually be able to earn some additional time off for participating in prison programming (though the particular of "earned" time credits will likely not be fully in place until next year).

Some of many prior related posts:

March 13, 2019 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (9)