Friday, July 10, 2020

Is releasing people from prison really that hard? I suppose it is if you cannot shake a carceral mindset.

The question in the title of this post is my response to this recent lengthy Atlantic commentary by Barbara Bradley Hagerty headlined "Releasing People From Prison Is Easier Said Than Done: As the pandemic threatens the lives of those behind bars, the country must confront a system that has never had rehabilitation as its priority."  This piece is reform-minded, and I recommend it, but its headline, much of its prose, and its overall spirit embrace a kind of carceral mentality that serves to reify a mass incarceration message.  These excerpts, as I will explain below, spotlight my concerns:

Some governors, alarmed at the deaths in prisons and jails and worried about the risk to surrounding communities, are listening — sort of, with an ear attuned to the political liability. More than half of the states have agreed to release people convicted of low-level crimes, people who are nearing the end of their sentences, or people who merit compassionate release, such as pregnant people or older, vulnerable inmates.

“It’s been helpful. I know that people have gotten out, and I am moved by their release,” says Nicole Porter, the director of advocacy at the Sentencing Project, a research organization that campaigns for sentencing reform. “But none of it has been substantial.  And what I hope this moment tells us is that our incarceration rate is a function of politics — because there are many questions about who needs to be incarcerated.”

To meaningfully reduce America’s prison population and slow the pandemic will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes.  The difficulty of doing so, in both practical and moral terms, is enormous.  Which people convicted of murder or armed robbery do we release? How do we decide?  And how do we guarantee that they won’t offend again, especially as they try to restart their life during the worst economic collapse in nearly a century?...

Advocates say prisons are brimming with candidates who deserve a second chance—men and women who made egregious mistakes when they were young, whose crimes say more about the impulsiveness of youth and the trickiness of navigating inner-city violence than they do about character.  Yet in large part, these are not people whom the system has been preparing for release.

Prison can serve many purposes — to deter people from committing crimes in the first place, to punish them if they do, or to rehabilitate them and usher them back to normal life. America has by and large chosen the punitive path, imposing decades-long sentences intended to reduce crime on the streets.  During that time, inmates usually don’t receive the kind of training or care that would enable them to return to the outside world and build a new, stable life. This presents a giant hurdle for those who would wish to release prisoners now....

Those are the practical challenges.  The moral question — who deserves to be released? — is even more daunting.  Is the inmate truly penitent, or merely saying the right words? Has he matured past his violent tendencies, or is he a tinderbox waiting to ignite once he’s out?  Does the family of the victim agree, or will his release only add to their pain?  Is the crime simply so heinous that even a perfect record cannot overcome it?

The last paragraph I have excerpted here is perhaps the clearest example of a carceral mindset: when asking "who deserves to be released?", the writer is necessarily assuming that everyone incarcerated not only already "deserves" to be incarcerated, but also "deserves" to continue to be incarcerated.  Further, the author then suggests that, to "deserve" release, an "inmate" must be "truly penitent" AND must have "matured past his violent tendencies" AND must have the "family of the victim agree." And, even then it seems, a "perfect record" still should not permit release amidst a global pandemic killing hundreds of prisoners if a person's crime is "simply so heinous."

For anyone eager to see a US criminal justice system operating with a deep commitment to liberty and justice, this thinking should be — must be — completely flipped.  The proper "daunting" moral question  is who deserves to still be incarcerated, especially amidst a global pandemic with inherently and worsening inhumane prison conditions.  If an incarcerated person is "truly penitent" OR likely has "matured past his violent tendencies" OR has the "family of the victim" in support, then that person ought no longer be incarcerated.  And, even without anything close to a "perfect record," an alternative to incarceration should still be the presumption for any and everyone whose crime or criminal record is not truly heinous.

Similar rhetoric earlier in the piece is comparably problematic, such as the query "how do we guarantee that they won’t offend again" when considering who to release from prison.  It is important — and I think this piece means to get us usefully thinking about — the importance of prison programming and outside support that seeks to minimize the risk of recidivism for persons leaving prison.  But we are never going to be able to "guarantee" that any cohort of individuals will never commit any kind of crime.  When we consider building a new highway, nobody expects public officials to "guarantee" there will never be an accident on that highway.  We want a new road to be as safe as possible, but we recognize that the array of benefits that can come from having a new road generally justify the inevitable public safety risks it creates.   Similarly, we must be ever mindful of the array of benefits that can come from having less people in prison and not demand or even suggest that people should be released from prison only if and only when public officials can "guarantee that they won’t offend again."

Finally, for now at least, I must again lament the tendency in so many of these kinds of discussions to start with the framing that meaningful action here "will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes."  I agree that cutting away the "fat" may not alone be enough, but let's focus on getting that hard work done before we fixate on the additional challenges of cutting "muscle."  As this great Prison Policy Initiative pie chart reminds us, roughly 50% of our national prison and jail populations are serving time for what are deemed "non-violent" offenses.  When we let out all or most or even some significant portion of this million+ people in cages, then I will be more than ready to wring my hands over which "violent" offenders to release.  But to now get deeply concerned about exactly which "people convicted of murder or armed robbery" should be released risks creating the impression that these types of offenders are the bulk of our prison populations, when they comprise less than 25% of all the people put in cages in the so-called home of the free and land of the brave.  (Also, for the very most serious of offenders, the debate is much less complicated since presumptive release when they are elderly or ill generally makes the most sense.)

I could go on and on, but I hope my point is clear.  Even as we discuss reform and recognize all the challenges surrounding decarceration efforts, we must be ever mindful of how decades of mass incarceration has not only badly hurt our nation and our values, but also badly hurt how we talk and think about doing better.

July 10, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Thursday, July 09, 2020

Great sentencing pieces in 'New Developments in Public Defense Research" collection in Criminal Justice Policy Review

I just came across this great collection of articles under the title "New Developments in Public Defense Research," which appears in the July 2020, issue of the journal Criminal Justice Policy Review. The volume includes seven original papers and an introduction on a range of topics related to public defenders and public defense.  The whole issue is worth checking out, and sentencing fans might be especially interested in these articles:

Including Assets-Based Mitigation in Sentencing by Elizabeth S. Vartkessian

Abstract:  Mitigation evidence consists of information about an accused person that is typically used to advocate for a less severe sentence.  Such evidence most frequently consists of information related to the crime and personal factors that can be separated into two broad categories: deficits and assets-based mitigation.  This article focuses on the importance of assets-based mitigation in sentencing and evaluates if and how state sentencing procedures contemplate and allow for consideration of such evidence.  A content analysis of available state sentencing procedures reveals that states tend to circumscribe mitigation to factors related to the crime or deficits, but largely neglect to give a vehicle to consider assets-based mitigation, which should play a central role in achieving just outcomes.  This article therefore argues for reform to sentencing laws to better accommodate assets-based mitigation by including information related to the defendant’s capacity for growth, self-improvement, and redemption.

 

Decision-Making and Holistic Public Defense Post-Montgomery v. Louisiana by Jeanette Hussemann and Jonah Siegel

Abstract: In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of life without the possibility of parole (LWOP) for youth are unconstitutional.  In 2016, the Court held in Montgomery v. Louisiana that the ruling in Miller should be applied retroactively. Drawing from qualitative interviews with justice actors, and individuals who were sentenced to LWOP as juveniles and paroled, this article examines the implementation of Miller-Montgomery in Michigan, the factors that influence decisions to release juvenile lifers, and their reentry process.  In doing so, we focus specific attention to the role of publicly appointed defense attorneys and the application of holistic defense practices to support Montgomery case mitigation and juvenile lifer reentry.  Findings indicate that institutional disciplinary and programming records, emotional wellness, statements by victims’ family members, political considerations, and reentry plans are key considerations when deciding whether a juvenile lifer should be eligible for parole.

July 9, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, June 27, 2020

"Sentencing Disparities and the Dangerous Perpetuation of Racial Bias"

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

This Article addresses the role that racial disparities — specifically sentencing disparities — play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States.  As documented in the news and by often humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American.  This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality.  This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on.

June 27, 2020 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (1)

Wednesday, June 24, 2020

Latest (and free) Federal Sentencing Reporter issue on "Creating a Crisis: Growing Old in Prison"

As mentioned in this prior post, the academic publisher of the Federal Sentencing ReporterUniversity of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I continue to be grateful to UC Press for this move, especially now that it allows me to flag this latest and timely FSR issue and some of the articles therein.  This new issue was put together by guest editor Jalila Jefferson-Bullock, and here are a few paragraphs taken from her introduction to the issue which provides a partial overview:

The Creation of a Crisis by Jalila Jefferson-Bullock:

This Issue of FSR is dedicated to the critical matter of aging in prison.  While COVID-19 media coverage currently highlights the plight of our most vulnerable prisoners, the graying of America’s prisons is nothing new.  One of the most foreseeable, yet ironically ignored, consequences of the harsh sentencing laws of the 1980s and 1990s is the dramatic upsurge in prison population through the predictable process of human aging.  Presently, elderly inmates comprise 19% of the total prison population, and that number continues to rise.  The cost of medical care for elderly offenders is five times greater for prisons with the greatest elderly population than for those with the least amount of elderly inmates, due, in large part, to factors that naturally accompany growing older.  Prisoners also experience accelerated aging and therefore require varied medications, special diets, social interventions, and individualized supervision much earlier than members of the general population of the same age.  By their own admission, prisons are ill-equipped to manage the mammoth health care, social, and other costs associated with imprisoning the elderly.  The costs of incarcerating aged offenders are quite unsustainable....

This Issue tackles the prison ‘‘silver tsunami’’ phenomenon rather creatively.  Our contributors include established law and sociology scholars, practicing attorneys, veteran politicians, and returned citizens.  Their voices herald personal narrations of the inhumanity of prion health care, the power of redemption after long years of confinement in a brutal prison system, the importance of committed, community partnerships in rebuilding retuned citizens’ lives, and deep, scholarly insight into the actual, harsh conditions that vulnerable, elderly inmates face.  This Issue represents various, unique perspectives on the crisis of aging in prison and, overall, provides a glimpse into what life is like for the incarcerated elderly.  Here, we read firsthand accounts of the inability of the prison system to safeguard its most vulnerable population.  We also learn, through authentic accounts, that despite the injustice doled out to our imprisoned elderly, there is hope and the prospect of embracing a new, bright future. 

Amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration.  Unfortunately, neither resulted in widespread releases.  In the wake of COVID-19, policies authorized by the CARES Act offer an occasion to explore early release of elderly offenders afresh.  This time, we must get it right.  

Along with the introduction and relevant primary materials, this FSR issues includes these articles:

A Divinity That Shapes Our Ends: From Life Without Parole to the House of Life Initiative by The Elsinore Bennu Think Tank for Restorative Justice
The Unusual Cruelty of Nursing Homes Behind Bars by Rachel E. López
The Personal Case For Releasing The Elderly A Real Second Chance by Thomas J. Farrell
The Special Perils of Being Old and Sick in Prison by William J. Jefferson
Emergency Parole Release for Older Parole-Eligible DOC Inmates by David I. Bruck
Let My People Go: A Call for the Swift Release of Elderly Federal Prisoners in the Wake of COVID-19 by Jalila Jefferson-Bullock

June 24, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, June 23, 2020

Senators Durbin and Grassley introduce new bill to make modest, but still important, reforms to federal elderly home release and compassionate release

As reported in this new press release, "U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA), authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced new, bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons. "  The release provides some notable contextual data and well some details of the bill's particulars:

Sadly, more than 80 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs. 

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  In 2019, 1,735 requests for release were initiated by or on behalf of prisoners, of which 1,501 were denied by wardens and 226 of which were forwarded to the BOP Director.  Of these 226, BOP approved only 55 and denied 171.  Since March of this year, only about 500 inmates have been granted compassionate release in the midst of the pandemic, nearly all of them by court order over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“At the end of 2018, Congress came together to pass one of the most important criminal justice reform laws in a generation.  Now we have an obligation to ensure that this law is properly implemented,” Durbin said.  “My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus.  I’m hopeful that this commonsense, bipartisan legislation will pass swiftly through the House and Senate and will be signed into law.”

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

  • Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote);
  • Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;
  • Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
  • Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
  • Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

The following organizations support the COVID-19 Safer Detention Act:  Aleph Institute, Americans for Tax Reform and Digital Liberty, Drug Policy Alliance, Due Process Institute, FAMM, Federal Public and Community Defenders, FreedomWorks, Justice Action Network, National Association of Criminal Defense Lawyers (NACDL), Right on Crime, Sentencing Project, Taking Action For Good, Texas Public Policy Foundation (TPPF), and Tzedek Association.

A section-by-section of the legislation is available here.

Bill text is available here.

I have placed in bold the provisions of this new bill that strike me as particularly noteworthy and that could prove most consequential. In short form, this bill would seem to authorize (though not require) judges to move most persons over the age of 60 from federal prison into home confinement as soon as they approach serving about half of their initially imposed prison sentence.  Sound like a great idea to me, and it also sounds like another version of another kind of "parole light" proposal of the sort I discussed a few years ago in this article

June 23, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, June 20, 2020

"The Categorical Imperative as a Decarceral Agenda"

The title of this post is the title of this new essay authored by Jessica Eaglin recently posted to SSRN. Here is its abstract:

Despite recent modest reductions in state prison populations, Franklin Zimring argues in his forthcoming book that mass incarceration remains persistent and intractable.  As a path forward, Zimring urges states to adopt pragmatic, structural reforms that incentivize the reduction of prison populations through a “categorical imperative,” meaning, by identifying subcategories of offenders best suited for diversion from prison sentences at the state level.  This decarceral method is at odds with popular sentencing reforms in the states.

By exploring the tensions between reform trends in practice and Zimring’s proscription, this Essay illuminates a deeper concern with sentencing reforms in the era of mass incarceration.  Reforms focused on categorizing offenders can obscure and sustain policymakers’ persistent tendency to frame social problems as matters of crime and punishment. Recognizing this shortcoming upfront has important implications for scholars and policymakers alike when contemplating the methodologies that should inform sentencing reforms going forward.

June 20, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, June 07, 2020

"The Effects of Parental and Sibling Incarceration: Evidence from Ohio"

The title of this post is the title of this lengthy empirical paper recently posted to SSRN authored by Samuel Norris, Matthew Pecenco and Jeffrey Weaver.  Here is its abstract:

Every year, millions of Americans experience the incarceration of a family member.  Using 30 years of administrative data from Ohio and exploiting differing incarceration propensities of randomly assigned judges, this paper provides the first quasi-experimental estimates of the effects of parental and sibling incarceration in the US.  Contrary to conventional wisdom, parental incarceration has beneficial effects on children, reducing their likelihood of incarceration by 4.9 percentage points and improving their adult socioeconomic status.  We can also reject large positive or negative effects of parental incarceration on academic performance and teen parenthood.  Sibling incarceration leads to similar reductions in criminal activity.

June 7, 2020 in National and State Crime Data, Offender Characteristics | Permalink | Comments (0)

Tuesday, June 02, 2020

Timely reminders that racial disparities may persist and grow even as the carceral state begins to shrink

The Marshall Project has this notable new piece about arrest rates during the COVID era under the full headline "Police Arrested Fewer People During Coronavirus Shutdowns — Even Fewer Were White: Racial disparities grew in five cities as arrests fell, according to our new data analysis."  Here are excerpts:

As protesters clash with police across the country, they are venting not only their rage about the death of George Floyd at the hands of Minneapolis police, but more broadly their frustration with decades of racial inequality in the American criminal justice system.

These inequalities persisted during the coronavirus outbreak, a new Marshall Project analysis of arrest data found. Even as crime rates fell while much of the country was ordered to shelter in place, arrest data from five U.S. cities suggests racial disparities worsened in March and April.  Across these cities, arrests of white people dropped 17 percent more than arrests of black people and 21 percent more than Hispanic people.

In March, the New York City Police Department made about 13,000 arrests, a 30-percent drop from the same month a year before. While most people in the city were confined to their homes, the changes in arrest practices did not affect residents of all races equally.  White people experienced the largest decreases in arrests, whereas arrests of black and Hispanic people dropped at a much slower rate.

New York is not an outlier. The Marshall Project’s analysis found that arrests in Los Angeles, Baltimore, Pittsburgh and Tucson, Arizona, reflected similar patterns.  As the total number of arrests plummeted through March and April, they didn't drop equally across the board. Arrests of white people decreased far more than the arrests of black and Hispanic people. Though they were much fewer to begin with, arrests of Asians, Native Americans and people of other backgrounds declined faster than arrests of white people.

These disparities in arrests took place during the same time period when some police departments came under fire for how they enforce social distancing orders. In New York City, more than 80 percent of people arrested for violating those orders were black. In major cities across Ohio, black residents were more than four times as likely to be charged with violating stay-at-home orders than their white peers. 

In Los Angeles, New York and Tucson, three cities that break down arrests by the severity of the alleged offense, The Marshall Project found that with each racial and ethnic group, misdemeanor arrests plummeted during the early weeks of the pandemic, while felony arrests, for the most severe crimes, declined slightly.  For example, from February to March, the Los Angeles Police Department made 1,000 fewer arrests for misdemeanor charges, such as driving under the influence or traffic violations. Meanwhile, arrests for felony charges, like aggravated assault and rape, dropped by 100.

These COVID-era data remind me of the data we often now see on marijuana-related arrests in the wake of legalization or decriminalization, where the total number of arrests decline (often significantly) but with racial disparities persisting or even growing.  Here are just a few recent studies on this topic via my coverage at my Marijuana Law, Policy & Reform blog:

Also worth recalling in this context is the notable reality that a number of US states with relatively smaller prison populations often have the most racially disparate prison populations.  This 2016 Sentencing Project report on the topic detailed that the states with the largest disparities in their prison population between whites and blacks were Iowa, Minnesota, New Jersey, Vermont, and Wisconsin.  Notably, all of these states have well below the national average in per-capita prison population.

These numbers do not surprise me because I often notice, in both policies and practices, how disparities and discrimination can find express in the exercise of leniency or mercy.  I see this especially in death penalty administration, when so many different actors in the system (prosecutors, judges, jurors) have formal and/or informal authority to prevent a murderer from being subject to the death penalty.  Disparities can and will result merely not from legal actors being distinctly punitive toward certain defendants, but also from these actors being distinctly willing to act leniently or mercifully toward only certain other defendants.  Other sentencing systems, where prosecutorial charging and bargaining discretion in turn shape judicial sentencing discretion, also surely reflect differential expressions of leniency as well as differential expressions of punitiveness.

I bring all this up not too create cynicism or fatalism about what legal and social change might achieve, but rather to highlight how much work there is to do even as we make progress in reducing the scope and impact of mass criminalization, mass punishment and mass incarceration.  In recent years, I have grown ever more hopeful about the potential, politically and practically, to shrink the carceral state in America.  But the events of this past week provide a critical reminder of our need to keep our eyes on all the prizes that we are aspiring to achieving in this critically important work.

June 2, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Thursday, May 21, 2020

Florida Supreme Court seemingly finds way avoid retroactive application of proper determination of who is exempt from execution under Atkins

As reported in this local article, headlined "Conservative Florida Supreme Court reverses itself again on death penalty legal issue," the top court in Florida authored this lengthy opinion which seems to permit the state to go forward with executing a person who would be exempt from execution under the Supreme Court's Atkins decision prohibiting the execution of the intellectually disabled. Here are the press details:

Harry Franklin Phillips, a convict who shot a Miami parole officer to death in 1982, was hoping to get his death sentence reversed by convincing the courts that he is intellectually disabled. But the Florida Supreme Court, backtracking on its own case decided only years ago, on Thursday ruled that Phillips isn’t ineligible, the court’s latest reversal in how sentences in major cases are meted out.

The court ruled that an earlier decision allowed for the broadening of who can be deemed intellectually disabled — generally someone with an IQ of 70 or less — does not apply “retroactively” to older cases such as Phillips’.  The court ruled 4-1. The only dissenter was Justice Jorge Labarga....

The decision in Phillips’ case drew immediate criticism from opponents of the death penalty, who say the Florida Supreme Court has yet again thumbed its nose at the legal concept of stare decisis, or making decisions drawing from legal precedents. “I am personally shocked at the Court’s audacity and frankly its meanness,” said defense lawyer Stephen Harper, of Florida International University’s Florida Center for Capital Representation. “So many people who were already granted relief by the Florida Supreme Court are now being deprived of that relief by the Florida Supreme Court. “And stare decisis has been abandoned, and this will have a much more devastating effect on the public’s trust in the judicial system.”

Two years ago, the Florida Supreme Court backtracked on allowing certain juveniles — who had been eligible for parole because their murder convictions were from decades ago — to get new sentencing hearings. In January, the Florida Supreme Court reversed itself in ruling that unanimous jury verdicts were not needed to mete out the death penalty, a ruling excoriated by opponents of capital punishment. Florida law, however, still require juries to be unanimous in handing down a death sentence.

In Hall v. Florida, 572 U.S. 701 (2014), the US Supreme Court said that the "old" rule that Florida had used to determine who was ineligible to be executed under Atkins was "invalid under the Constitution’s Cruel and Unusual Punishments Clause."  But now the Florida Supreme Court is saying the state does not have to apply the constitutionally proper Atikns rule to "old" cases decided before Hall.  That strikes me as wrong because Atkins is fundamentally a substantive constitutional rule and its proper application should be fully retroactive because it involves "prohibiting a certain category of punishment for a class of defendants because of their status." Montgomery v. Louisiana, 136 S. Ct. 718, 728-29 (2016).  If the Constitution demands a certain approach to determining the applicable "class of defendants" (which is what Hall says), I do not think a state can dodge its retroactive application.

This matter seems sure to end up in federal courts, and it will be interesting to see how it plays out in the years ahead. 

May 21, 2020 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 20, 2020

"The Shadow Bargainers"

The title of this post is the title of this notable new article authored by Ronald Wright, Jenny Roberts and Betina Wilkinson.  Here is its abstract:

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate.  This article looks into the bargaining part of plea bargaining.  It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.”  This is a theory that some defenders embrace and others reject.  Describing the factors they believe to be important in plea negotiations, some public defenders — those who emphasize the importance of collateral consequences or the pre-trial custody of their clients — do not stress the likely outcome at trial.  Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework.  These defense attorneys might ask the prosecutor to dismiss charges, to divert the defendant out of the system, or to recommend a sentence far below the expected outcome.  Such dispositions based on equitable factors, many of them related to the larger life circumstances of the defendant, point the prosecutor towards an outcome that is independent of any likely trial result or post-trial sentence.  These defense attorneys, we argue, bargain in the “shadow of the client” rather than the shadow of the trial.  Multivariate analysis of the survey answers allows us to identify which background factors identify the attorneys that embrace each of the distinct theories of negotiation.

After asking public defenders about their plea bargaining aspirations, our survey turns to actual negotiation practices.  Here, defenders’ self-reported bargaining methods do not measure up to their declared aspirations.  Their own descriptions of the fact investigations and legal research they typically perform ignore some viable outcomes that their clients might prefer.  Particularly for attorneys who aim to negotiate in the shadow of the client, there is a wide gap between theory and practice.

May 20, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, May 19, 2020

"The Paradox of Recidivism"

The title of this post is the title of this interesting-looking new article authored by Christopher Lewis and just posted to SSRN.  Here is its abstract:

The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in U.S. states that use sentencing guidelines.  And three-strikes, habitual offender, and career criminal laws mandate extremely harsh penalties for repeat offending.  Most of the people we lock up in the U.S. — especially those who are Black or Latino, and poor — have at least one prior conviction. The “recidivist sentencing premium” is thus one of the main determinants of race- and class-based disparity in our prisons, and of the overall size of our incarcerated population.

This article shows, counterintuitively, that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions have moral reason to do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. Prior convictions should be treated as a presumptive mitigating factor, rather than an aggravating one.  This thesis goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millenia of social tradition.  But this article shows that it follows from a number of quite ordinary normative and empirical premises. The conclusion might be politically unpalatable, but it is morally unavoidable.

May 19, 2020 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Friday, May 15, 2020

"Deep Disadvantage, Blameworthiness, and Sentencing"

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

Arguments in favor of a “social adversity” or “rotten social background” defense are substantially stronger than those against.  People disagree in principle whether an affirmative defense of deep disadvantage, paralleling the insanity defense, should be recognized and whether judges should routinely mitigate the severity of sentences imposed on deeply disadvantaged offenders.  The defense should be recognized. It would be unlikely often to result in acquittals but it would strengthen many defendants’ positions in plea negotiations. Mitigation of punishment should be routine.  Few credible arguments can be made that a deeply disadvantaged background is not a material characteristic that should be taken into account in sentencing.  Unfortunately, informal mitigation of punishments is not enough. The severity and rigidity of American sentencing laws often deny judges the necessary authority.  The moral challenges presented by deeply disadvantaged offenders cannot adequately be addressed without creation of a new affirmative defense.

May 15, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Friday, May 08, 2020

Yet another Texas execution postponed, though purportedly not for COVID reasons

Texas had an execution scheduled for next Wednesday, but no longer as explained in this local article: "An East Texas man who asserts that he is intellectually disabled has won a reprieve from his execution scheduled for next week for a 2007 shootout that left two sheriff’s officers dead." Here is more:

Randall Wayne Mays was set to receive lethal injection May 13 for the shootings at his Henderson County home.  In an order issued Thursday, the Texas Court of Criminal Appeals issued an execution stay and remanded Mays’ case to the trial court in Henderson County for review of his intellectual-disability claim.

Mays’ attorneys say the 60-year-old suffers from delusions and thinks Texas wants to execute him over a renewable energy design he believes he created....  Mays had previously won reprieves in October and in 2015.

Six other executions scheduled in Texas for earlier this year have been postponed because of the novel coronavirus outbreak statewide.  Besides Mays' intellectual-disability claim, his attorneys had also asked the appeals court for an execution stay because of the pandemic. The appeals court did not address that request in its order.

The next execution in Texas is scheduled for June 16.

Though this reprieve was not based on the COVID pandemic, I wonder if the Texas Court of Criminal Appeals was just a little bit more willing to grant the defendant his requested relief because of the many challenges posed to courts and corrections officials these days. I suspect that, even when courts and litigants do not make express reference to COVID concerns, they still cannot help but look at all criminal justice issues through a somewhat different lens.

With Texas starting to open up, it will be especially interesting to see if the state's two scheduled excutions for mid June and early July go forward. And, in the meantime, Missouri has an execution schedule for May 19, and it seems that the state is seriously prepared to move forward (see, e.g., press reports from Mother Jones and the St. Louis Dispatch).

Some prior related capital COVID posts:

May 8, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, May 04, 2020

Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future." I recommend the piece in full, though I fear it may be a bit too optimistic about the way the COVID era might impact the work of federal judges.  Here are excerpts:

In late March, U.S. District Judge Jesse Furman struggled to look for a way to free Nkanga Nkanga, a sixty-seven-year old former doctor with no prior criminal record who had admitted to unlawfully prescribing oxycodone and other controlled substances for non-medical purposes. Nkanga was held at MDC Brooklyn New York, a notoriously poorly run, dated and filthy prison operated by the Federal Bureau of Prisons (BOP).

Judge Furman, who had remanded Nkanga into custody in October 2019 after entering a guilty plea, was frustrated by what he could and could not do to free the inmate who was suffering from asthma and lingering conditions from a stroke years earlier.  Furman sentenced Nkanga to three years and was awaiting designation to Federal Medical Center Devens.  Assistant US Attorneys Jacob R. Fiddelman and Cecilia E. Vogel vehemently opposed the ailing doctor’s requests for release, frustrating Furman to call on legislatures and executive branch actions to untie his hands....

While judges may have a limited say in the release of an inmate, they have a big say in how long they are incarcerated....

In Ohio, a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation (Cruel and Unusual Punishment).  Lawyers for the BOP responded on April 28, 2020 that the measures the BOP took to curb the virus’s spread had been effective, stating in its emergency motion that, “These efforts have been working as the number of new cases has been reduced.”  I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread, showed a marked increase in cases....

Federal judges across the country have been hearing horrid stories about the BOP’s conditions and the agencies reaction, lack of action, to COVID-19. American Civil Liberties Union (ACLU) chapters have become involved, attempting to bring to light a federal agency’s inept and cruel response to the contagion of a virus that has infected over 2,000 inmates and killed 37. The BOP is inflicting even more, unmeasured, mental distress on both families and inmates.

The BOP’s failure to accurately report positive COVID-19 has endangered both its own staff members and inmates alike.  The promises to send people to home confinement and then taking it away, then possibly reinstating it, is cruel.  Locking minimum security inmates in high security prison cells for weeks and calling it a “quarantine” is something that needs to be investigated.  Directives that have now caused the cutting of communication with family (in-person visits, reduced telephone time and little access to email) is beyond comprehension at a time when people need some social interaction to keep their sanity. Many of these inmates have close family ties and what little correspondence they have had with family has relayed fear, sadness and oppression....

I have given up on prosecutors being a part of any criminal justice reform.  They create narratives, many of them farfetched, to justify long prison terms for crimes that may not have even occurred.  While I’m not saying that “nobody did the crime” what I am saying is that once a prosecutor gets a guilty plea, they exaggerate the crime, usually through inflation of the dollars associated with the crime and enhancements, to get longer sentences.  Judges, who make the ultimate determination of the amount of time a person spends in prison, could be the saving grace to reducing prison populations.  It only took a global pandemic to get them engaged.

Defendants would rather be in front of a judge on July 2020 than one on July 2019.  Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly.

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing.

As always, I would be eager to hear (in comments or via email) from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to "re-think their sentences" and whether they are hopeful that federal judges are forever more going to think more "about the consequences that their sentences have on the lives of defendants and their families."  Though I sincerely hope that this current era proves to be "game-changing" for all judges (state and federal, trial and appellate), I am not all that optimistic for a number of reasons (which somewhat echo some points well-made in the great commentary I flagged here this past weekend).

First, as this notable recent Cato report detailed, a remarkably large number of current federal judges are former prosecutors.  As Palvo highlights, a lot of prosecutors get in the habit of assuming defendants are far worse than their convictions reflect and of believing long prison terms effectively achieve serve deterrence and incapacitation goals.  Once acclimated as prosecutors to viewing defendants as generally worse than they seem and tough punishment as critical for public safety, it is easy to take comfort in the notion that all defendants have "earned" whatever terrible prison fate might await them.

Second, judges always have an ultimate "trump card" to get folks out of dangerous prisons by being able to declare prison conditions unconstitutional in violation of the Eighth Amendment.  This commentary mentions the significant ruling by Judge James Gwin (discussed here), but does not note its outlier status.  There have been lots of other rulings nationwide, from federal and state judges, refusing to find constitutional violations and refused to push prison authorities to release inmates from environments where COVID is spread wildly.  (To reinforce my first point, I am pretty sure Judge Gwin never served as a prosecutor, but the federal judge in Louisiana (Judge Terry Doughty) who dismissed a similar suit around the same time served as a state prosecutor for over two decades.)

Third, the federal judicial agency that is supposed to help federal judges do their sentencing jobs better, namely the US Sentencing Commission, has so far failed to say "boo" about the COVID disruption and the ways federal judges are responding (and might be able to better respond).  Of course, this agency has been crippled now for the better part of two years by the failure of Prez Trump and the GOP-led Senate to come together on a slate of new Commissioners so that the agency could be operating at full force.  Still, the USSC staff has managed publish at least three major research documents in the last two months along with a number of smaller publications.  Federal judges might be more emboldened and feel more supported in taking new approaches to sentencing in the COVID era if the USSC was doing more than just whistling its standard sentencing tunes while federal prisons continue to burn.

That all said, my review of dozens of judicial grants of sentence reductions using § 3582(c)(1)(A)  (examples here and here and here and here and here and here) reveals that there are indisputably some — perhaps a good many — sitting federal sentencing judges who "get it" and recognize that the usual horrors and harms of prison are now even more horrible and harmful.  But I still fear that those judges now most concerned with COVID in federal prisons and BOP's inadequate response are just those same judges who have always been most attentive to "the lives of defendants and their families."  I sincerely hope the large number of former-prosecutors-turned-federal judges are starting to look at sentencing issues differently, but my hopefulness ability has been dampened by waiting for former-prosecutor-turned-Justice Samuel Alito to start looking at sentencing issues differently.

On the topic of hope, I would love to hear from readers (in comments or via email) that I am too pessimistic, that lots of judges are likely to look at lots of sentencing issues differently now.  Gosh knows we could all benefit from some small silver linings these days.

May 4, 2020 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Thursday, April 30, 2020

"Resentencing of Juvenile Lifers: The Philadelphia Experience"

The title of this post is the title of this notable new report authored by Tarika Daftary-Kapur and Tina Zottoli.  Here is its executive summary and key findings:

EXECUTIVE SUMMARY

We examined the Philadelphia District Attorney Office’s approach to juvenile lifer resentencing, which began in 2017 under the administration of District Attorney Seth Williams and has continued under the administration of District Attorney Larry Krasner.  For cases resentenced as of December 31st, 2019, we describe similarities and differences between the Williams and Krasner administrations in decision making and sentence length reductions, and we report on the recidivism rate and estimated cost savings for Pennsylvania as a result of release.

In June 2012, the Supreme Court of the United States (SCOTUS) ruled in Miller v. Alabama that mandatory life without-parole (LWOP) sentences were unconstitutional for individuals who were under the age of 18 at the time of their offense (hereafter, juveniles).  In January 2016, SCOTUS, ruled in Montgomery v. Louisiana that Miller applied retroactively.  Following Montgomery, individuals previously sentenced to mandatory LWOP as juveniles (hereafter, juvenile lifers) became eligible for resentencing.  Accordingly, in almost all such cases, the district attorney’s office makes an offer for a new sentence to the defendant, who is free to accept the offer or to have his new sentence decided by the judge.

At the time Miller was decided, Philadelphia had the largest number of juveniles sentenced to LWOP in the country (approximately 325).  Yet, they have been at the forefront of the resentencing process nationally, and at the time of this writing have only 10 juvenile-lifers left to re-sentence; the main reasons for delay being an open Post Conviction Relief Act petition or a pending appeal.

In Philadelphia, re-sentence offers are decided by The Juvenile Lifer Resentencing Committee ("The Lifer Committee"), which comprises 8 members of the executive staff at the District Attorney's Office.  The Lifer Committee’s decisions are based primarily on the consideration of case-summary memos prepared for the Committee by the Assistant District Attorney leading the resentencing process. Memos include information on the facts of the original case, demographic information on the victim and offender, mitigating information, the offenders’ prison adjustment (e.g.misconducts,rehabilitative programming), information on acceptance of responsibility and remorse, the victim’s family’s perspective on release, and reentry plans.

In January 2018, as the resentencing process was underway, Larry Krasner was sworn in as the District Attorney of Philadelphia after having run on a reform platform, ushering in dramatic change to the culture and policies of the District Attorney’s Office.  This change in administrations, during a crucial resentencing project, provided us with a unique opportunity to examine how the priorities and policies of the new administration have affected prosecutorial decision making.  Moreover, in light of the growing recognition that addressing the incarceration epidemic will necessitate re-evaluation of long-term prison sentences for individuals who were convicted of violent offenses, these outcome data have implications far beyond just those that pertain to the resentencing and release of juvenile lifers....

KEY FINDINGS

  • Pennsylvania has resentenced 88% of its juvenile lifers as compared to Michigan (52%) and Louisiana (approx. 15-22%); the three states in combination account for 2/3rd of all juvenile lifers in the United States.

  • Juvenile lifers can be considered low-impact releases in terms of risk posed to public safety.  At the time of our analyses, 269 lifers have been re-sentenced in Philadelphia and 174 have been released.  Six (3.5%) have been re-arrested.  Charges were dropped in four of the cases and two (1%) resulted in new convictions (one for Contempt and the other for Robbery in the Third Degree).  In comparison, nationally, an estimated 30% of individuals convicted of homicide offenses are rearrested within two years of release.

  • A subset of 38 cases were considered for resentencing by both the prior and current administrations.  The average sentence offered in these cases by the prior administration was 38.8 years; under Krasner, the average offer in these cases was 27.6 years.  Across all cases, this difference equates to an additional reduction of 394 years.

  • Overall, release of Philadelphia's juvenile lifers, to date, will result in an estimated minimum $9.5M savings in correctional costs for Pennsylvania over the first decade.

  • For both the Williams and Krasner administrations, Lifer Committee offers were explained by years in custody at time of resentencing, charge severity, whether the defendant was the primary actor, and whether a re-entry plan is in place.  There were some differences. While both administrations considered the maturity of the offender, the Williams administration relied on defendant age at the time of the offense and the level of planning, whereas the Krasner administration relied on a more holistic evaluation of the juvenile nature of the crime (e.g., involvement of an adult co-defendant, presence of peers, context in which the murder was committed).  Prior convictions also weighed more heavily under Krasner than the prior administration.

April 30, 2020 in Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (5)

Monday, April 20, 2020

US Sentencing Commission continue to publish helpful data about the pre-COVID federal sentencing world

I keep waiting, impatiently, for the US Sentencing Commission to produce some data or information about federal sentencing realities in our modern COVID world.  I would love to see some data on, for example, how many sentencings are going forward each week given that, in normal times, about an average of 1500 federal sentences are imposed in federal courts every week of the year.  I would also be eager to know if a larger number than usual non-prison sentences are being imposed in those sentencings that are going forward.  And data on sentence reductions motions involving § 3582(c)(1)(A) would also be so very interesting. 

That said, I understand the challenges for the USSC in trying to produce accurate real-time data in even the best of times, and so I will just keep praising the USSC for what they are producing even while I keep hoping for COVID-era data.  Specifically, the USSC merits praise for continuing to produce new reports and data collections and Quick Facts based on its recently completed 2019 Annual Report and Sourcebook of Federal Sentencing Statistics.  Specifically, federal sentencing fans will want to check out these newer item from the USSC website:

OVERVIEW OF FEDERAL CRIMINAL CASES (Published April 16, 2020)  This publication provides a brief, easy-to-use reference on the types of criminal cases handled by federal courts in fiscal year 2019 and the punishments imposed on offenders convicted in those cases.

2019 GEOGRAPHIC SENTENCING DATA (Published April 17, 2020)  These data reports compare fiscal year 2019 federal sentencing statistics for each judicial district, judicial circuit, and state to the nation as a whole.

QUICK FACTS

April 20, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Tuesday, April 14, 2020

US Sentencing Commission released new report on "Path of Federal Criminality: Mobility and Criminal History"

Cover_mobilityI find it more than a little ironic and depressing that the US Sentencing Commission, amidst a viral pandemic requiring lockdowns for everyone and creating unique risks for inmates who are confined with so many others, has today released a new research report with "mobility" in its title.  Tone-deaf timing aside, this new report serves as another interesting bit of criminal history research being done by an agency that has been functionally crippled for now the better part of two years because of the lack of confirmed commissioners. 

Though I keep hoping the USSC might step up to the current moment with some real-time data on federal sentencing practices and outcomes during this remarkable moment, I suppose we should all still be grateful that the USSC staff is still able to get its regular work done.  This latest report is focused on interesting aspects of past state convictions for federal offenders, and here is how it is summarized on the USSC's website:

Summary

(Published Aprill 14, 2020)  This study expands on prior Commission research by examining the geographic mobility of federal offenders. For this report, mobility is defined as having convictions in multiple states, including the location of the conviction for the instant offense. This report adds to the existing literature on offender criminal history in two important ways. First, the report provides information on how mobile federal offenders are, as measured by the number of offenders with convictions in multiple states. Second, the report provides information on the proportion of offenders with convictions in states other than the state in which the offender was convicted for the instant offense. The report also examines the degree to which out-of-state convictions in offenders’ criminal histories contributed to their criminal history score and their Criminal History Category.

Key Findings
  • Almost one-third (30.0%) of the total federal offender population in fiscal year (FY) 2018 had convictions in more than one state.
  • The mobility of federal offenders varies by offender characteristics:
    • Immigration offenders were the most likely to have convictions in more than one state (38.7%), while child pornography offenders were the least likely (16.4%) to have convictions in more than one state.
    • Just under one-third (31.8%) of male offenders had convictions in two or more states compared to 17.8 percent of female offenders.
    • Hispanic offenders (31.0%) were the most likely to have convictions in more than one state, closely followed by White (29.3%), Black (28.5%) and Other race (27.8%) offenders.
  • The percentage of offenders having convictions in states other than the state of their instant offense varied from a high of 59.2 percent in North Dakota to a low of 10.5 percent in the territory of Puerto Rico.
  • A total of 13,904 FY 2018 offenders had out-of-state convictions that received criminal history points. Almost three-quarters of these offenders (73.9%) had a higher Criminal History Category due to these convictions.

April 14, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Monday, April 13, 2020

Highlighting data showing why it is safe to consider all persons for release when prisons are so dangerous

Building on their recently published recidivism research, J.J. Prescott, Benjamin Pyle and Sonja Starr have this notable new Slate piece headlined "It’s Time to Start Releasing Some Prisoners With Violent Records."  I recommend the piece in full, and here are excerpts:

Prisons and jails are fast becoming an epicenter of the COVID-19 pandemic . Last week, for instance, the New York Times reported that Cook County jail was “now the nation’s largest-known source of coronavirus infections.”  After far too much lost time, some governors and criminal justice officials are finally trying to mitigate the damage by releasing inmates or transferring them to home confinement.

To succeed, these steps must extend to prisoners with violent records.  This should be obvious based on sheer numbers.  People with violent convictions make up a majority of the total state prison population.  Because sentences for violent crimes are longer, they make up an even larger percentage of the older detainees most vulnerable to COVID-19: about two out of every three prisoners over age 55.

So far, this reality is being ignored.  Efforts to move people out of prisons and jails have mainly focused on the lowest-hanging fruit: those detained for inability to pay bail, technical parole violations, minor misdemeanors, and the like. Almost all these measures have excluded people convicted of violent crimes.  Many prepandemic criminal justice reforms have also focused on nonviolent offenders only, so we shouldn’t be surprised.  For many, people with violent convictions seem dangerous, and the idea of granting them any kind of relief is simply anathema.

But how dangerous is it to release prisoners with violent records?  We recently carried out an empirical study using post-release crime data on hundreds of thousands of such prisoners.  We found that it is much less dangerous than you probably think.  And during this pandemic, we can add, it seems doubtless much less dangerous than keeping them behind bars.

Our study found that among those released after serving a sentence for a violent crime, about one of every 10 releasees was sent back to prison for any new crime within the next three years. Only one of every 20 had another violent crime in three years.  In fact, re-offense rates have been consistently shown to be lower for people released after serving sentences for violent crimes than those released for nonviolent crimes.

Crime rates are even lower if you look at older prisoners — the ones most seriously threatened by COVID-19.  We looked at more than 7,000 individuals over age 55 who had served at least five years in state prisons for a violent offense.  Fewer than 1 percent of such individuals were re-incarcerated for any new crime in the three years after release, and fewer than 0.5 percent for another violent crime.

Our study was bigger and more recent than most, but our findings are consistent with the patterns we found in a comprehensive review of the literature.  Moreover, all those low re-offense rates were for normal releases from prison into society.  But “releases” now need not simply mean flinging open the prison gates indiscriminately. It could mean temporary transfers to home confinement for the duration of the emergency.  Protective measures like electronic monitors are also available....

Of course, at many prisons there could be some individuals who really are so dangerous that they cannot be safely released, even to home confinement.  But the data tell us that such cases are likely to be relatively few, and officials should be required to identify them based on clear evidence.  It certainly shouldn’t be assumed to be true of all who have violent convictions.  And once as many people as possible have been removed from facilities, it will be easier to practice social distancing among those who remain.

Are crime rates among those released likely to be zero?  No — but they should be close to it.  The stakes of doing nothing, though, have never been higher.  Categorically refusing to remove violent offenders from these virus hotbeds does not protect public safety. It endangers it....  COVID behind bars threatens everyone outside too.  Staff — and some detainees — come and go daily.  Some will bring COVID in with them, and after it has spread, much larger numbers will take it out.  Plus, sick prisoners will have to be moved to local hospitals, competing for scarce resources.

Prisons and jails are like concerts, conferences, and cruise ships: places where crowds in confined spaces can spread the virus to many, many people fast.  But unlike these other sites, they won’t be shut down.  So COVID outbreaks behind bars threaten our entire society’s ability to control the pandemic and return to normal life....

The COVID-19 situation in prisons is a moral test that, so far, our society is failing.  Even when our own safety is at stake, we make knee-jerk assumptions about people who once committed a violent crime: that they cannot ever reform.  These assumptions are not borne out by data.  And right now, they are blinding us to what is needed to protect all of us.

The new empirical study referenced in this piece is titled "Understanding Violent-Crime Recidivism" and is available at this link via SSRN.  Here is the piece's abstract:

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration.  Serious efforts to shrink the large footprint of the prison system will need to recognize this fact.  This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic.  Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars.  Excluding them from protective measures will deeply undermine those measures’ effectiveness — and yet many governors and officials have hesitated due to fears of violent-crime recidivism.  In addition, the population imprisoned for violent offenses also exhibits sharper demographic disparities than the general prison population across both age and race.  Consequently, reforms that target those convicted only of nonviolent crimes will likely exacerbate existing inequalities in the criminal justice system.

In this Article, we start from the premise that better understanding individuals convicted of violent crimes is essential to overcoming resistance to the idea of releasing them earlier — and in particular, to address the fear that this population will almost certainly reoffend violently.  We review existing studies and offer new empirical analysis to inform these questions.  Although estimates vary, our synthesis of the available evidence suggests that released violent offenders, especially homicide offenders who are older at release, have lower overall recidivism rates relative to other released offenders.  At the same time, people released after previous homicide convictions may be more likely to commit new homicides than otherwise comparable releasees, although probably not by as much as most would expect.

April 13, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Offense Characteristics, Prisons and prisoners | Permalink | Comments (1)

Friday, April 10, 2020

Tracking COVID cases in juvenile facilities in incarceration nation

I was pleased to hear this morning from Josh Rovner at The Sentencing Project who reported that TSP is working on a webpage to track the incidence of the coronavirus in juvenile facilities.  As that site is being constructed, Josh has be posting information daily on the ever-growing number of COVID cases on his twitter page:

Tracking Youth (as of April 9: "At minimum, 46 YOUTHS in juvenile facilities have tested positive for #COVID19, a three-person increase from yesterday. There are cases in 11 states.")

Tracking Staff (as of April 9: "There have been 65 known #COVID19 cases among staff members working at #juvenilejustice facilities, ten more than yesterday (eight of these ten are in New York; the others are in Illinois and Nebraska). There are cases among facility staff in 23 states.)

AFTERNOON UPDATE New data as of April 10:

Youth 

Staff 

April 10, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Monday, April 06, 2020

SCOTUS upholds, by vote of 8-1, traffic stop after run of vehicle plate shows revoked driver's license

The Supreme Court this morning handed down its opinion in Kansas v. Glover, No. 16-556 (S. Ct. Apr. 6, 2020) (available here). Justice Thomas delivered the opinion of the Court, which start this way:

This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license.  We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

The short majority opinion is sure at the end to reiterate that "the ultimate touchstone of the Fourth Amendment is reasonableness;" the Court makes sure to "emphasize the narrow scope of our holding" by stressing "the presence of additional facts might dispel reasonable suspicion." Ergo, keep litigating.

A five-page concurrence authored by Justice Kagan and joined by Justice Ginsburg makes an interest collateral consequences point. Here is an excerpt (with cites removed):

I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws.  Consider, for example, if Kansas had suspended rather than revoked Glover’s license.  Along with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.  Indeed, several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor. So the good reason the Court gives for thinking that someone with a revoked license will keep driving — that he has a history of disregarding driving rules — would no longer apply.

A lengthy concurrence authored by Justice Sotomayor gets started and ends this way:

In upholding routine stops of vehicles whose owners have revoked licenses, the Court ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof. I therefore dissent....

Vehicle stops “interfere with freedom of movement, are inconvenient, and consume time.” Prouse, 440 U. S., at 657.  Worse still, they “may create substantial anxiety” through an “unsettling show of authority.” Ibid.  Before subjecting motorists to this type of investigation, the State must possess articulable facts and officer inferences to form suspicion. The State below left unexplained key components of the reasonable-suspicion inquiry.  In an effort to uphold the conviction, the Court destroys Fourth Amendment jurisprudence that requires individualized suspicion.  I respectfully dissent.

April 6, 2020 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, March 24, 2020

Broad coalition urges Prez Trump to commute the federal sentences in response to coronavirus crisis

A whole bunch of public policy and civil rights groups have just sent this short letter urging Prez Trump to utilize his clemency power to commute the federal sentences of those "who could benefit from compassionate release, and other populations that are exceptionally vulnerable to coronavirus."  The letter details the COVID-19 emergency emerging in prisons and jails and closes with this ask:

We call upon you to commute the federal sentences of individuals who could benefit from compassionate release, including those who: 

  • Are older and elderly; 
  • Have a terminal medical condition; 
  • Have a debilitated medical condition; 
  • Suffer from a chronic medical condition; or 
  • Have suffered a death of a family member who is a primary caregiver to a child of the person incarcerated.

In addition to commuting the federal sentences of individuals who could benefit from compassionate release, we call upon you to use your clemency power to release those incarcerated at the federal level who are elderly and/or particularly vulnerable to serious illness or death from COVID-19 due to underlying health conditions as identified by the Centers for Disease Control and Prevention, including: 

  • Blood disorders; 
  • Chronic kidney disease; 
  • Chronic liver disease; 
  • Compromised immune system (immunosuppression); 
  • Current or recent pregnancy; 
  • Endocrine disorders; 
  • Metabolic disorders; 
  • Heart disease; 
  • Lung disease; 
  • Neurological and neurologic and neurodevelopment conditions; and 
  • Hypertension.

As we work to combat the spread of the coronavirus pandemic, it is essential that we not forget about the millions of Americans currently incarcerated and working in jails, prisons and detention centers, and that we take action to protect those who are the most vulnerable to COVID-19. Again, we ask you to commute the sentences for those populations at the federal level most vulnerable to coronavirus.

UPDATE: It is worth noting here that this call to Prez Trump to use his clemency powers to move people out of federal prisons could and should also be directed, on similar terms, to Governors across the nation.  Helpfully, I just got word from Margy Love that the Collateral Consequences Resource Center has a new resource on state clemency posers. This CCRC post provides the details and other helpful links:

At this time of pandemic, we have been following the discussions of how jail, prison, and immigration detention conditions are highly concerning, including the very useful collection of links provided by Professor Doug Berman, the demands published by advocacy organizations, and the collection of policy responses by the Prison Policy Institute.  We agree that every available legal mechanism must be enlisted to secure the release of prisoners and detainees who pose little or no threat to public safety, and whose health and safety are themselves severely threatened by their enforced captivity.  This includes the great constitutional powers given to governors and pardon boards.  We therefore commend our newly revised pardon resources to advocates and policy makers to support their advocacy and action.

While our pardon-related research focuses primarily on how the power is used to restore rights and status to those who are no longer in prison, much of our information about how the pardon process is structured and operates is relevant to how the power might be used (or is already being used) to commute prison sentences during the pandemic.  Our revised pardon resources are part of a major revision of the CCRC Restoration of Rights Project, not only to make sure its information is current in light of the many recent changes in the law, but also reorganizing and revising its resources for clarity and easier access.  In the process, we have updated and revamped our state-by-state material on how the pardon process operates in each jurisdiction, noting that the process has become more regular and productive in a few states in the past several years.

Our 50-state pardon comparison is organized into four sections:

  • Section 1 provides a chart comparing pardon policy and practice across jurisdictions.
  • Section 2 lists jurisdictions by frequency and regularity of their pardon grants.
  • Section 3 sorts jurisdictions by how the administration of the power is structured.
  • Section 4 provides state-by-state summaries of pardon policy and practice, with links to more detailed analysis and legal citations.

March 24, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 23, 2020

Ruling 6-3, SCOTUS holds that Due Process does not compel a state to provide a traditional insanity defense in its criminal laws

The Supreme Court this morning handed down its opinion in the fascinating case of Kahler v. Kansas, No. 18-6135 (S. Ct. March 23, 2020) (available here). Justice Kagan authored the opinion of the Court, which starts this way:

This case is about Kansas’s treatment of a criminal defendant’s insanity claim.   In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of imprisonment or commitment to a mental health facility.  But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong.  The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so — otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement.

Notably, in her opinion for the Court, Justice Kagan at various points stresses the fact that defendants in Kansas still can use mental illness matters as mitigating arguments at sentencing. For example:

In sum, Kansas does not bar, but only channels to sentencing, the mental health evidence that falls outside its intent-based insanity defense.  When combined with Kansas’s allowance of mental health evidence to show a defendant’s inability to form criminal intent, that sentencing regime defeats Kahler’s charge that the State has “abolish[ed] the insanity defense entirely." Brief for Petitioner 39....

If a mentally ill defendant had enough cognitive function to form the intent to kill, Kansas law directs a conviction even if he believed the murder morally justified.  In Kansas’s judgment, that delusion does not make an intentional killer entirely blameless.  See Brief for Respondent 40.  Rather than eliminate, it only lessens the defendant’s moral culpability.  See ibid.  And sentencing is the appropriate place to consider mitigation: The decisionmaker there can make a nuanced evaluation of blame, rather than choose, as a trial jury must, between all and nothing. See ibid.

Justice Breyer authored a dissenting opinion, which Justices Ginsburg and Sotomayor joined, and it gets started this way: 

Like the Court, I believe that the Constitution gives the States broad leeway to define state crimes and criminal procedures, including leeway to provide different definitions and standards related to the defense of insanity.  But here, Kansas has not simply redefined the insanity defense.  Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.  Seven hundred years of Anglo-American legal history, together with basic principles long inherent in the nature of the criminal law itself, convince me that Kansas’ law “‘offends . . . principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Leland v. Oregon, 343 U.S. 790, 798 (1952) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

I am disinclined to pass judgement on these opinions before I get a chance to read them closely. But because I have long thought that so-called "excuse" defenses like insanity were more properly considered at the sentencing stage than the guilt stage, I am not inherently troubled by the essential of this ruling.  That said, it is worth noting here that if and when a defendant is subject to a severe mandatory minimum sentencing term (as is often the case for more serious crimes), Justice Kagan's assertion that a "decisionmaker [at sentencing] can make a nuanced evaluation of blame"  will not really be accurate.  And so I am going to be eager to try to (over)read Kahler as a statement that allowing a decisionmaker sentencing discretion is an important Due Process consideration (and this principle also finds expression in the Eighth Amendment in cases like Lockett and Miller).

March 23, 2020 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, March 10, 2020

Harvey Weinstein requesting (mandatory minimum) five-year prison sentence

As reported in this CNN piece, headlined "Harvey Weinstein's attorneys ask for him to receive the shortest possible prison sentence," defense attorneys have now filed their sentencing arguments a notable 7-page letter before the judge's scheduled sentencing on March 11.  Here are the basics:

Harvey Weinstein's defense attorneys are requesting a five-year prison sentence, the minimum for his first-degree criminal sexual act conviction, according to a sentencing letter provided by his spokesman.

His attorneys wrote in the letter to Judge James Burke that Weinstein's personal charitable giving, advanced age, medical issues and lack of a criminal history should lead to a lower sentence. They wrote that his life "has been destroyed" since the publication of an article in The New Yorker in October 2017 that alleged systemic abuse of women in the entertainment industry. "His wife divorced him, he was fired from The Weinstein Company, and in short, he lost everything," the attorneys wrote.

Weinstein, 67, was convicted of first-degree criminal sexual act and third-degree rape in a New York courtroom in late February based on accusations by Miriam Haley and Jessica Mann. He was acquitted of two more serious charges of predatory sexual assault, which could have come with a life sentence.

The movie producer faces a minimum of five years and a maximum of 25 years in prison for the criminal sexual act charge, and he faces up to 4 years in prison for the rape charge. His sentencing is scheduled for Wednesday.

The Manhattan District Attorney's office argued in an 11-page court filing last week that Weinstein should receive a sentence that "reflects the seriousness of defendant's offenses." He led a "lifetime of abuse towards others, sexual and otherwise," prosecutors argued, and they highlighted three dozen uncharged incidents and accusations. "Starting in the 1970s, he has trapped women into his exclusive control and assaulted or attempted to assault them," prosecutor Joan Illuzzi-Orbon wrote in a letter. Noting that sentencing isn't limited "to the evidence at trial," Illuzzi-Orbon wrote that Burke has "wide discretion" to consider everything known about the defendant when the judge imposes his sentence on the disgraced movie mogul.

However, Weinstein's attorneys argued that the prosecution's request to consider 36 alleged bad acts in sentencing is "inappropriate," adding they intend to expound upon these issues at sentencing....

In the letter, Weinstein's attorneys said his medical issues mean any sentence above five years would effectively be a life sentence. "Given his age and specific medical risk factors, any additional term of imprisonment above the mandatory minimum — although the grave reality is that Mr. Weinstein may not even outlive that term — is likely to constitute a de facto life sentence."...

The attorneys said the trial "did not fairly portray who he is as a person," saying "his life story, his accomplishments, and struggles are simply remarkable and should not be disregarded in total because of the jury's verdict." Besides noting his commercial success and contributions to the entertainment industry, the attorneys highlighted Weinstein's philanthropic endeavors, including that he was an organizer for a 9/11 benefit concert that raised $100 million. The attorneys wrote that Weinstein "always remained involved in the forefront of various social justice causes" during his career.

The defense cited that he has no criminal history and wrote that in providing this information "do not in any way intend to denigrate the seriousness of the conduct for which he was found guilty," adding his background "should be given substantial consideration in reaching a just and appropriate sentence."

The full defense letter is available here, and sentencing fans may be especially interested in the last couple of pages in which the defense makes the case against consideration of uncharged conduct at sentencing. Here are excepts from this portion of the letter:

The People now ask this court to rely on more uncharged conduct in fashioning what they surely hope will be a draconian sentence.  To that end, by and large, the People ask that your honor consider 36 alleged bad acts in arriving at an appropriate sentence.  We submit that this request is inappropriate and intend on expounding upon these issues at sentencing.

First, these allegations have not been admitted, proven, or subject to adversarial testing in any meaningful manner and for the most part mirror allegations made by the People in other filings.  Reliance upon the People’s proffer would be improper.

Second, even under the federal standard, which does not apply, the People neglect to mention that under 18 U.S.C. § 3553(a) (the “3553(a) factors”), or at least the ones it tendentially cites, federal courts are not permitted by Due Process to consider whatever unsupported conjecture the People ask it to.  Rather, in order for “relevant, uncharged conduct” must be proven by a “preponderance of the evidence” standard” before a sentencing court can give it any weight or effect.  See United States v. Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000)...

Third, the alleged bad acts cited by the People do not constitute “relevant conduct,” and thus, even in federal court, and even if proven, would not be proper for consideration at sentencing....

Fourth, in the course of the People’s efforts to bootstrap these allegations to its sentencing request, it is unclear if it has met requirements under both C.P.L. § 245.20(1)(k) and Brady v. Maryland, 373 U.S. 83 (1963)Brady applies equally to material relevant to both guilt itself as well as punishment....

Finally, as the court observed, all of the People’s evidence was vigorously contested at trial.  To add weight to a sentence based upon mere allegations, some of which predate even Ms. Sciorra’s rejected claims, would violate Due Process.

Based on the foregoing, Mr. Weinstein, through counsel, requests the Court expressly disregard the People’s request to use these alleged other bad acts as a basis for it sentencing determination as set forth in its March 6, 2020 letter.

Prior related post:

March 10, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Monday, March 09, 2020

"Data Collected Under the First Step Act, 2019"

The title of this post is the title of this notable new document that the Bureau of Justice Statistics released this morning.  The document reports a range of data about the federal prison system, and here are excerpts from the start of this document:

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on a number of topics and to report these data annually.  BJS is required to report on selected characteristics of prisoners, including marital, veteran, citizenship, and English-speaking status; educational levels; medical conditions; and participation in treatment programs.  Also, BJS is required to report some facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations that resulted in time-credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

The statistics in this report are for calendar year 2018, which is prior to the enactment of the FSA, and were collected in 2019.  Data for 2019 will be available from BOP in the second half of 2020.  Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.  Other reporting required by the FSA, such as the establishment of new methods by BOP to score risk-assessment or recidivism-reduction programs, will be included in BJS’s annual reports when data become available.

Key findings....

  • At year-end 2018, a total of 80,599 prisoners — or 45% of all BOP prisoners — were the parent, step-parent, or guardian of a minor child (dependents age 20 or younger, per BOP definition).
  • At year-end 2018, a total of 51,436 prisoners (about 29% of all BOP prisoners) had not attained a high-school diploma, general equivalency degree (GED), or other equivalent certificate before entering prison.
  • At year-end 2018, a total of 23,567 prisoners identified English as their second language (13% of all BOP prisoners).
  • At year-end 2018, a total of 33,457 prisoners were non-citizens (19% of all BOP prisoners)....
  • In 2018, all 122 BOP-operated facilities had the capability for prisoners to use video-conference technology to participate in judicial hearings, foreign embassy consultations, reentry-related communication from probation offices, pre-reentry preparation, disciplinary hearings, and the Institution Hearing Program....
  • A total of 87,628 prohibited acts occurred in BOP-operated facilities during 2018, of which 39,897 were committed in medium-security facilities (45%).
  • A total of 55,361 individual prisoners committed the 87,628 prohibited acts.
  • During 2018, there were 1,270 physical assaults on BOP staff by prisoners, with 21 of the assaults resulting in serious injury to the staff member.

March 9, 2020 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (2)

SCOTUS grants cert on a Mississippi case on the application of Miller to replace dismissed Malvo case

In this new order list, the Supreme Court this morning granted certain in one case, Jones v. Mississippi, No. 18-1259.  Here is the straight-forward question presented in Jones' cert petition:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

As explained in this post and this post, after Virginia enacted new legislation to make all juvenile offenders eligible for parole, SCOTUS had to dismiss, more than four months after oral argument, the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing for a series of murders committed when he was 17.  It was expected that the Justice would be inclined to take up a "replacement case," and that now appears to be the Jones case.

Notably, the facts and legal realities surrounding the Jones case are strikingly different that the Malvo case.  Lee Malvo was just shy of 18 when he was involved is a high-profile series of thrill killings; Brett Jones had just turned 15 when he stabbed to death his grandfather in an altercation in which Jones claimed (unsuccessfully) he acted in self-defense.  In addition, the Malvo case involved the extra complications of federal habeas review of (unclear) state procedures; the Jones case involves a direct appeal from the state court on the question of what process or finding is required to impose a discretionary life without parole sentence on a juvenile killer.

Because of the somewhat simpler facts and simpler procedural posture, it would seem that Jones will present an interesting opportunity to essentially relitgate a range of issues left behind in the wake of the Miller and Montgomery cases.  I suspect some amici may argue, for example, that is is now time for the Eighth Amendment to be interpreted to categorically ban all juve LWOP (or at least to ban all LWOP sentences for crimes committed under the age of 16).  Some other amici might argue, however, that no particular finding or process should be required for before any juve LWOP sentence is imposed despite suggestions otherwise in Montgomery.

Importantly, because of the timing of all these developments, the oral argument in this case will not be until the Fall and we ought not expect an opinion before early 2021.

March 9, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, March 05, 2020

Federal prosecutors and hundred of victims write in opposition to Bernie Madoff's compassionate release motion

Last month, as noted in this post, Bernie Madoff filed a motion for compassionate release thanks to a provision of federal law modified by the FIRST STEP Act.  This week, filings in response came from federal prosecutors.  This USA Today piece has the filing and reports on it  starting this way:

Federal prosecutors on Wednesday night objected to Ponzi scheme mastermind Bernard Madoff's bid for release from prison, arguing that the reviled and ailing ex-financier should continue serving his 150-year sentence.

Charging that the 81-year-old convict who ran one of history's biggest scams has "demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims," the U.S. Attorney's Office for the Southern District of New York urged a judge to keep him in prison.

"Madoff's crimes were 'extraordinarily evil.' His sentence was appropriately long. It should not be reduced," Assistant U.S. Attorneys Drew Skinner and Louis Pellegrino wrote in the filing to U.S. Circuit Court Judge Denny Chin, who sentenced Madoff more than a decade ago.

I think the first paragraph of the filing is effective:

The Government respectfully submits this memorandum of law in opposition to defendant Bernard L. Madoff’s request for 92% reduction in his sentence.  The nature of Madoff’s crime — unprecedented in scope and magnitude — wholly justified the 150-year sentence this Court imposed and is by itself a sufficient reason to deny Madoff’s motion.  Furthermore, since his sentencing, Madoff has demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims, underscoring that he is undeserving of compassionate release himself.  Finally, the Section 3553(a) factors weigh heavily against his release.

This CNBC piece report on some of the victim letters opposing Madoff's motion. Here is how this article gets started:

Hundreds of victims of Ponzi scheme kingpin Bernie Madoff really don’t want him to get out of prison despite his claim that he is dying. They recently told a judge their reasons in often-heartbreaking letters.

“Our lives, and not just financially, also emotionally, mentally, and physically . . . were Destroyed,” wrote one victim, who noted that her husband lost $850,000 to Madoff.

Another woman wrote, “I lost all my money and my husband of 40 years committed suicide because of his horrific crimes. As far as I am concerned, he should spend the rest of his life in jail,” she wrote to Judge Denny Chin in U.S. District Court in Manhattan.

Releasing Maddoff, a third victim told Chin, “would be to put another knife in the hearts of his victims.”

Those three letters are among the approximately 520 that Madoff victims sent Chin on the heels of Madoff’s court filing last month seeking early release from his 150-year prison sentence because he has terminal kidney disease.

Prior related posts:

March 5, 2020 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, March 03, 2020

"Going Back to Jail When You Haven’t Committed a Crime: Early Findings From a Multi-State Trial"

The title of this post is the title of this new report from the Institute for Justice Research and Development (IJRD) prepared by Carrie Pettus-Davis and Stephanie Kennedy. This report is part of a series of quarterly reports designed to provide real-time results of a multistate study on prisoner reentry currently being conducted in over 100 correctional facilities and 21 urban and rural counties in 7 states.  The full report itself is a reader-friendly 17 pages, and there is also this one-pager with key takeaways.  Here are excerpts from the one-pager:

Although the general public often thinks about recidivism as individuals leaving incarceration and committing new crimes, technical violations contribute to the strikingly high rates of recidivism reported for individuals released from prisons and jails across the United States....

• Research suggests that 45% of the more than 600,000 annual state prison admissions across the nation are due to probation or parole revocations.

• While probation or parole can be revoked for committing new crimes, 26% of new prison admissions are due solely to technical violations. Unpaid fines and fees also contribute to technical violations and may lead individuals back to incarceration.

• Our goal was to explore the circumstance of re-arrest among our study participants.  At this early point in the study, data are incomplete or unavailable.

• This report examines the reasons for re-arrest provided by study participants as these data were the most complete.  They describe a range of technical violations for expected events — missing check-ins with supervising officers and violating curfew — and unexpected events – being arrested, having one’s charges dropped, and returning to jail for coming into contact with law enforcement. Though not the focus of this report, other common technical violations were related to substance use, carrying guns, and reengagement in crime. We will have more complete data on these rates in the future.

• The 35 individuals highlighted in this report were re-arrested for non-drug related, non-criminal technical violations.

• We ask stakeholders to consider whether current policy and practices are meeting the stated purpose and goals of conditional release.  Are the non-criminal behaviors described in this report reason enough to send someone to jail?  Is it worth the financial costs and associated social costs?

March 3, 2020 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Making the case for algorithms to help with criminal justice decision-making

This new Washington Post piece by a group of California professors and data scientists, headlined "In the U.S. criminal justice system, algorithms help officials make better decisions, our research finds," makes a notable case for using algorithms in criminal justice decision-making.  Here are excerpts:

Should an algorithm help make decisions about whom to release before trial, whom to release from prison on parole or who receives rehabilitative services?  They’re already informing criminal justice decisions around the United States and the world and have become the subject of heated public debate.  Many such algorithms rely on patterns from historical data to assess each person’s risk of missing their next court hearing or being convicted of a new offense.

More than 60 years of research suggests that statistical algorithms are better than unaided human judgment at predicting such outcomes.  In 2018, that body of research was questioned by a high-profile study published in the journal Science Advances, which found that humans and algorithms were about equally as good at assessing who will reoffend. But when we attempted to replicate and extend that recent study, we found something different: Algorithms were substantially better than humans when used in conditions that approximate real-world criminal justice proceedings....

Surprised by the finding, we redid and extended the Dartmouth study with about 600 participants similarly recruited online.  This past month, we published our results.  The Dartmouth findings do not hold in settings that are closer to real criminal justice situations

The problem isn’t that the Dartmouth study’s specific results are wrong. We got very similar results when we reran the study by asking our own participants to read and rate the same defendant descriptions that their researchers used. It’s that their results are limited to a narrow context. We repeated the experiment by asking our participants to read descriptions of several new sets of defendants and found that algorithms outperformed people in every case. For example, in one instance, algorithms correctly predicted which people would reoffend 71 percent of the time, while untrained recruits predicted correctly only 59 percent of the time — a 12 percentage point gap in accuracy.

This gap increased even further when we made the experiment closer to real-world conditions. After each question, the Dartmouth researchers told participants whether their prediction was correct — so we did that, too, in our initial experiments. As a result, those participants were able to immediately learn from their mistakes. But in real life, it can take months or years before criminal justice professionals discover which people have reoffended. So we redid our experiment several more times without this feedback. We found that the gap in accuracy between humans and algorithms doubled, from 12 to 24 percentage points. In other words, the gap increased when the experiment was more like what happens in the real world. In fact, in this case, where immediate feedback was no longer provided, our participants correctly rated only 47 percent of the vignettes they read — worse than simply flipping a coin.

Why was human performance so poor? Our participants significantly overestimated risk, believing that people would reoffend much more often than they actually did. In one iteration of our experiment, we explicitly and repeatedly told participants that only 29 percent of the people they were assessing ultimately reoffended, but our recruits still predicted that 48 percent would do so. In a courtroom, these “judges” might have incorrectly flagged many people as high risk who statistically posed little danger to public safety.

Humans were also worse than algorithms at exploiting additional information — something that criminal justice officials have in abundance. In yet another version of our experiment, we gave humans and algorithms detailed vignettes that included more than the five pieces of information provided about a defendant in the original Dartmouth study. The algorithms that had this additional information performed better than those that did not, but human performance did not improve.

Our results indicate that statistical algorithms can indeed outperform human predictions of whether people will commit new crimes. These findings are consistent with the findings of an extensive literature, including field studies, that show that algorithmic predictions are more accurate than those of unaided judges and correctional officers who make life-changing decisions every day.

I blogged about the prior study in this post, and here are some (of many, many) prior related posts on risk assessment tools:

March 3, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, March 02, 2020

SCOTUS grants cert in Borden ACCA case to replace Walker case after death of petitioner

As noted in this prior post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  After seeing the facts in the Walker, case, which involved to possession of ammunition and not the possession of a gun, I reached out to some law professor colleagues and we filed this this SCOTUS amicus brief in US v. Walker in early January.

But Mr. Walker died in late January, and so his petition for a writ of certiorari was dismissed.  Today SCOTUS took up a replacement case, Borden v United States, which will given the Justices another chance to decide whether a crime that can be committed by being reckless can be a “violent felony” for purposes of the Armed Career Criminal Act.  Disappointingly, the Borden case involves gun possession, not just ammunition possession, so our amicus brief won't quite work for this new case.  Bummer.

In any event, though sentencing fans have to be excited about yet another ACCA case on the docket, the truly big SCOTUS cert news today concerns ACA, not ACCA.

March 2, 2020 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, March 01, 2020

"The Criminal History of Federal Economic Crime Offenders"

The title of this post is the title of this new report released late last week by the US Sentencing Commission.  Here is a basic summary and key findings from this USSC webpage:

Summary

For the first time, this report provides in-depth criminal history information about federal economic crime offenders, combining the most recently available data from two United States Sentencing Commission projects.

Key Findings
  • The application of guideline criminal history provisions differed among the different types of economic crime offenders.
  • The extent of prior convictions differed among the different types of economic crime offenders.
    • About half of all federal economic crime offenders had at least one prior conviction in their criminal history.
    • Prior convictions were most common among counterfeit and forgery (71.1%), identity theft (70.4%), credit card fraud (68.7%), and financial institution fraud (68.6%) offenders.
    • Prior convictions were least common among computer-related (29.6%) and government procurement (25.4%) fraud offenders.
  • Federal economic crime offenders did not “specialize” in economic crime.
    • Convictions for prior economic offenses were not the predominant types of prior convictions. 
    • Fourteen percent of federal economic crime offenders had convictions for prior economic offenses only, to the exclusion of other types of convictions. 
    • Convictions for prior “other” offenses, such as DUI and public order, were the predominant types of prior convictions.
  • The severity of criminal history differed for offenders in the specific types of economic crime.
    • Financial institution fraud, credit card fraud, identity theft, mail-related fraud, and counterfeit and forgery offenders had relatively serious criminal histories compared to other economic crime offenders.
    • Government procurement and computer-related fraud offenders had comparatively less serious criminal histories compared to other economic crime offenders.
  • Only about one-quarter of federal economic crime offenders with prior convictions were not assigned criminal history points under the guidelines.

March 1, 2020 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

Thursday, February 27, 2020

Will SCOTUS take up another case to address other post-Miller JLWOP issues now that Malvo has gone away?

As noted in this post , earlier this week Virginia enacted new legislation to make all juvenile offenders eligible for parole.  One effect of that new legislation was to moot, more than four months after oral argument, the Supreme Court's consideration of the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing since he was given LWOP for a series of murders committed when he was 17.  Many were wondering whether and how the Justices might use the Malvo case to address broader Eighth Amendment concerns, because the Malvo case touched on, but did not necessarily require resolution of, various issues related to past SCOTUS jurisprudence concerning juvenile sentencing.

Though the dispute in Malvo has gone away, the array of questions about how properly to apply Miller and related SCOTUS precedents in sentencing juveniles to extreme sentencing terms has not.  And it seems quite possible that some Justices, having become sufficiently involved in working through draft opinions for resolving Malvo, may now be eager to now take up a replacement case.  Kent Scheidegger sure seems eager for SCOTUS to take up a replacement case, as he has two new posts over at Crime & Consequences highlighting the range of potential replacements for Malvo:

Because I am always keen for SCOTUS to take up more sentencing issues and to clarify its constitutional jurisprudence, I am hopeful we will see SCOTUS take up another case to address post-Miller issues ASAP.  But SCOTUS often has a way of dashing my hopes (e.g., its recent acquitted conduct cert denials), so I make no firm predictions.

February 27, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, February 26, 2020

SCOTUS unanimously rejects effort to narrow ACCA-predicate drug crimes in Shular

Much of the never-ending Armed Career Criminal Act litigation concerns the reach of ACCA's "violent felony" definitions as predicate priors for applying the statute's extreme 15-year mandatory minimum term.  But the Supreme Court addressed unanimously today in Shular v. United States, No. 18–6662 (S. Ct. Feb. 26, 2020) (available here), the reach of the ACCA predicate provision defining "serious drug offense."  And while defendants have often prevailed on challenges to broad application of "violent felony," the unanimous opinion by Justice Ginsburg in Shular turns away a defense effort to limit what qualifies as a "serious drug felony."  Here is the full start to the Court's opinion:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence of imprisonment for certain defendants with prior convictions for a “serious drug offense.”  A state offense ranks as a “serious drug offense” only if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” §924(e)(2)(A)(ii).  This case concerns the methodology courts use to apply that definition.

While the parties agree that a court should look to the state offense’s elements, they disagree over what the court should measure those elements against.  In the Government’s view, the court should ask whether those elements involve the conduct identified in §924(e)(2)(A)(ii) — namely, “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.”  Petitioner Eddie Lee Shular, however, contends that the terms employed in the statute identify not conduct, but offenses.  In his view, those terms are shorthand for the elements of the offenses as commonly understood.  According to Shular, the court must first identify the elements of the “generic” offense, then ask whether the elements of the state offense match those of the generic crime.

Under the approach he advances, Shular argues, his sentence is not subject to ACCA enhancement.  The generic offenses named in §924(e)(2)(A)(ii), as Shular understands them, include a mens rea element of knowledge that the substance is illicit.  He emphasizes that his prior convictions were for state offenses that do not make knowledge of the substance’s illegality an element of the offense; the state offenses, he therefore maintains, do not match the generic offenses in §924(e)(2)(A)(ii).

The question presented: Does §924(e)(2)(A)(ii)’s “serious drug offense” definition call for a comparison to a generic offense?  We hold it does not.  The “serious drug offense” definition requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offenses.

Even for hard-core ACCA fans (and you know who you are), there does not seem to be all that much of great significance in Shular (beyond a reminder that rulings for prosecutors can still sometimes garner unanimity from this Court).  There is an intriguing coda to the Shular ruling in the form of a three-page concurrence by Justice Kavanaugh in order to "elaborate on why the rule of lenity does not apply here."  In his elaboration, Justice Kavanaugh seems mostly just to reiterate basic doctrinal statements about the rule of lenity from past SCOTUS cases, so I am not quite sure what the separate opinion was designed to achieve (beyond giving the Justice an excuse to cite his own Harvard Law Review article: "Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016)).

February 26, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, February 25, 2020

Ending JLWOP, Virginia makes all juvenile offenders eligible for parole (and thereby moots SCOTUS consideration of Malvo case)

As effectively reported here by Daniel Nichanian at The Appeal: Political Report, Monday brought big news out of Virginia that had an echo effect on the Supreme Court's docket. The report is headlined "Virginia Makes All Children Eligible For Parole, A Major Shift For This Punitive State," and here are the details:

Virginia will give hundreds of people who have been incarcerated for decades, ever since they were kids, a shot at petitioning for release. House Bill 35 will make people who have been convicted of an offense committed before the age of 18 eligible for parole after 20 years in prison. The legislature adopted the bill last week and the governor signed it into law [on Monday], effective July 1.

In practice, the bill abolishes sentences of life without the possibility of parole for minors; minors sentenced to sentences that amount to life in prison would also get some chance at parole. “It’s a huge victory,” Heather Renwick, legal director of the Campaign for the Fair Sentencing of Youth, told me. Besides banning life without the possibility of parole for minors, “the bill will provide broader relief and parole eligibility for all kids sentenced in the adult system,” she said.

Still, a major question looms over the concrete effect that the reform would have. It will only make people eligible to go in front of a parole board, with no guarantee that anyone gets paroled. And the recent history of Virginia’s board is to quasi-systematically deny the applications it receives. This signals the importance of strengthening the parole process alongside reforms that expand eligibility.

HB 35 also will not address the expansive mechanisms that lead minors to be prosecuted as adults in Virginia, and that trigger lengthy sentences in the first place. But the legislature is also considering separate bills to at least narrow those mechanisms....

In some ways, this bill is a modest reform. For one, it brings Virginia in line with many of its peers. With HB 35 signed into law, Virginia becomes the 23rd state (plus D.C.) to end sentences of life without the possibility of parole for minors. Oregon passed a similar bill last summer, and such proposals are on the table in other states as well.

HB 35, moreover, is a less expansive change than we’ve seen in other states. When neighboring West Virginia adopted a similar law in 2014, it made minors eligible for parole after 15 years, rather than the 20 that HB 35 stipulates. (Oregon’s law also stipulated 15 years.) And when Illinois established new parole rules for youths last year, it made people up to age 21 eligible to apply, affirming that considerations of youth do not just stop when someone is a day over 18. HB 35 still sets a cutoff at age 18.

The bill also better aligns Virginia on the U.S. Supreme Court rulings, such as Miller v. Alabama, which ended mandatory life without parole sentences for minors. The state has been slow at granting resentencing, and there is also litigation on whether the other mechanisms that impose extreme sentences on minors are any more constitutional. HB 35 addresses such concerns by retroactively conferring parole eligibility to minors sentenced to de facto life sentences.

When the bill becomes effective, it will affect 720 currently-incarcerated people, according to a legislative analysis....

Virginia may also soon pass a bill to make about 300 people sentenced between 1995 (when it ended parole) and 2000 (when it began informing juries of this change) eligible for parole.

Expanding eligibility may not by itself change much for anyone, though, including for minors. That’s because Virginia’s parole board has been denying the vast majority of applications it receives.

According to a Capital News Services analysis of Virginia’s parole board published in December, the vast majority of parole applications are denied: 94 percent since 2014. The rate of denial was above 90 percent for all age groups. Earlier analyses have found similar numbers.

This ABC News article explains the echo effect of this new Virginia law on a high-profile Supreme Court case argued last October:

D.C. sniper Lee Boyd Malvo asked the Supreme Court to dismiss his appeal on Monday after a change to Virginia state law now makes him eligible for parole....  In a letter to the Court signed by Malvo's attorney and an attorney for the state of Virginia, both sides agreed the case is now moot and should be dismissed.  Malvo will retain his sentences and remain behind bars, the letter says.

Over at Crime & Consequences, Kent Scheidegger has two posts in this wake of these developments, the first suggesting an alternative case for the Court to now take up and the second urging the Court to think about how best to dismiss the Malvo case:

February 25, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, February 23, 2020

"The Extraordinary Ordinary Prisoner: Essays From Inside America’s Carceral State"

Jeremiah-book-coverThe title of this post is the title of this notable new book authored by Jeremiah Bourgeois. The book is a collection of columns, mostly written while Jeremiah Bourgeois was serving a term of life imprisonment for a crime committed at the age of fourteen. Here is how the work is described at Amazon:

On June 7, 2016, an email from a prospective writer appeared in the inbox of The Crime Report, a nonprofit criminal justice news site. The last line in the message caught the editors' attention: “I realize that submissions should include more information. However, I hope you overlook that requirement in light of the fact that I am incarcerated.”

Over the next three years, Jeremiah Bourgeois, then confined to the Stafford Creek Corrections Center, a mixed medium-minimum security prison for men near Aberdeen, Washington, contributed 36 columns on his own transformation from self-destructive rage to dedicated writer and on subjects such as the treatment of gay and transgender prisoners, the lack of a #MeToo movement for incarcerated women, and the hypocrisies of prison “family visitation” events.

Months after Bourgeois finally won his parole in 2019, The Crime Report is publishing this collection of Jeremiah Bourgeois's most searing and unforgettable work.

The Crime Report provides more of the story in this posting:

When he wrote us, he was 38 years old — and had already spent the previous 24 years behind bars for the May 19, 1992, revenge killing of Seattle store owner Tecle Ghebremichale, who had testified against his brother in an assault case. Aged 14 at the time of his crime, he was sentenced to life without parole in the era before the Supreme Court ruled such sentences for juveniles unconstitutional.  Jeremiah had every expectation of spending the rest of his life in prison. “It was probably the saddest case I’ve ever had,” his lawyer, Michael Trickey, told the Seattle Times in 2005, noting both Jeremiah’s age and length of sentence.

Jeremiah spent much of his first decade in prison in a permanent state of anger and defensiveness, frequently in conflict with corrections officers and fellow inmates.  But then something changed.  Prisoner #708897, as he would later write in his columns, realized that he was on a path to self-destruction.  He began reinventing and reeducating himself through long hours in the prison library.

He is not the first incarceree to write his story.  Prison writing has long been a special genre, and The Crime Report has frequently published work written behind bars — by both juveniles and adults. But Jeremiah’s emergence as an independent, often contrarian, voice has been especially timely as our national debate about mass incarceration approaches a crossroads.

February 23, 2020 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Thursday, February 20, 2020

Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?

As reported in this Politico piece, headlined "Roger Stone was sentenced Thursday to just more than three years in prison, a decision that raises immediate questions about whether President Donald Trump will pardon his longtime political confidant for what the president has decried as a miscarriage of justice." Here is more about notable sentencing:

U.S. District Court Judge Amy Berman Jackson handed down Stone’s 40-month sentence in a packed Washington, D.C., courtroom after spending more than two hours ticking through the twisted history of his case... "The problem is nothing about this case was a joke,” Jackson said moments before sentencing Stone. “It wasn't funny. It wasn't a stunt and it wasn't a prank.”

Stone, who passed on a chance to address the courtroom, stood silently with his attorneys for nearly 45 minutes while the judge explained the reasoning behind her sentence. The punishment, she said, grew in large part from the severity of his attempts to stymie the Russia probe, violations of a gag order limiting his speech during the pre-trial proceedings and for making a threat to the judge through social media. “He was not prosecuted for standing up for the president,” Jackson added in her closing remarks. “He was prosecuted for covering up for the president.”

Jackson’s sentence for Stone — among the most severe to-date in a case originating from special counsel Robert Mueller — came a week after his potential punishment triggered a furor at the Justice Department. Stone’s case has become a flashpoint for broader concerns about political meddling in high-profile legal cases....

Jackson, an appointee of President Barack Obama, jumped at the chance to press one of the newly-assigned prosecutors, John Crabb, about the issue as he delivered the government’s final comments. “I want to apologize to the court for the confusion the government caused with respect to sentencing,” Crabb said.... Under questioning by Jackson, Crabb confirmed that the original recommendation was approved by a former aide to Barr who was recently installed as U.S. Attorney in Washington, Tim Shea.

Crabb said the confusion stemmed from miscommunication between Barr and Shea, but Crabb declined to elaborate. When the judge asked whether Crabb wrote the revised recommendation, he demurred again, saying that — despite his earlier comments — he was not permitted to discuss “internal deliberations.” While Trump has denounced the decision to prosecute Stone, Crabb took a contrary position, echoing comments Barr made in an interview last week, where he called the prosecution of Stone “righteous.”...

Without mentioning any names, the judge suggested that some critics of the original recommendation seemed unusually moved by Stone’s plight, even though the guidelines that DOJ followed — first adopted in the 1980s to rein in judges’ discretion — sometimes produce extraordinarily long sentences.

“For those of you new to this and who woke up last week to the fact that the...guidelines are harsh, I can assure you that defense attorneys and many judges have been making that point for a long time, but we don’t usually succeed in getting the government to agree,” Jackson scoffed.

Later, Jackson noted that the government’s decision to argue that Stone should get less prison time than federal sentencing guidelines recommend was a definite deviation from standard practices adopted by the Trump administration. “It’s not just a question of good faith, but whether it was fully consistent with current DOJ policy,” she said. “The current policy of this Department of Justice is to charge and prosecute the most serious offense available in order to get the highest guideline level.”

Crabb acknowledged that is “generally” DOJ’s current policy and that line prosecutors are not permitted to deviate from it without approval from higher-ups. And while Trump has suggested the judge has been cruel towards his allies like former Trump campaign chairman Paul Manafort, Crabb came to the judge’s defense Thursday, saying “the government has the utmost confidence” in her, and praising her “thoughtful analysis and fair sentences” in related cases....

The judge also said that when making her decision, she took into account Stone's social media attacks on the court during his prosecution that raised security concerns at the courthouse. "This is intolerable to the administration of justice and the courts should not sit idly by, shrug its shoulders and just say it's 'Roger being Roger,’” Jackson said.

Stone, 67, has sought to avoid any prison time. During Thursday’s hearings, his defense argued he had no criminal record and should get a reprieve because he’s a family man about to become a great-grandfather. “Consider the full scope of the person who stands before you in sentencing," said Seth Ginsberg, a new defense lawyer brought on for sentencing. “Mr. Stone has many admirable qualities,” Ginsberg added, urging Jackson to look beyond the "larger than life persona" Stone plays on TV. He noted Stone's charity work to help veterans, animal welfare and NFL players suffering from traumatic brain injuries.

Earlier this week, Judge Jackson indicated that Stone would not have to start serving his sentence until she rules on his motion for a new trial. I expect that Prex Trump will be inclined to hold back on any possible clemency action at least until that motion is resolved and Stone faces the prospect of heading to prison. (As some may recall, Prez GW Bush did not commute Lewis Libby's prison sentence until the DC Circuit denied his request for bail pending appeal.)

Prior related posts:

February 20, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Thursday, February 13, 2020

Oklahoma ballot initiative (State Question 805) seeks to block non-violent prior convictions from enhancing statutory range of punishment

Thanks to an ACLU event, I just learned that Oklahoma criminal justice reform advocates are working toward bringing a fascinating (and potentially far-reaching) new reform proposal directly to the voters.  This local press piece from a few weeks ago explains the basics:

Criminal justice reform advocates want to amend the Oklahoma Constitution to prohibit sentence enhancements based on previous felonies for nonviolent offenders. The measure would also allow nonviolent offenders serving enhanced sentences to seek a modification in court.

“A former conviction for one or more felonies shall not be used to enhance the statutorily allowable range of punishment, including but not limited to minimum and maximum terms, for a person convicted, whether by trial or plea of guilty or nolo contendere, of a felony,” reads the proposed measure [which is available here].  I This measure would not apply to those who have been convicted of a violent felony as defined by Oklahoma Statutes. This includes assault, battery, murder, manslaughter, kidnapping, child abuse, rape and human trafficking.

Oklahomans for Sentencing Reform, a bipartisan coalition championing the measure, filed the petition in November and began collecting signatures [in December]. State Question 805 requires nearly 178,000 signatures by 5 p.m. March 26 to be put to a statewide vote in 2020.

“The reality is that Oklahoma has an incarceration crisis,” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform (OCJR). “We have the second-highest incarceration rate per capita of any state in the United States, and we have the highest female incarceration rate in the nation. Unfortunately, we’ve held that distinction since 1991, and the disparity in the number of women we incarcerate continues to grow.”

According to a 2019 report by FWD.us, Oklahoma sends more people to prison than other states, especially for nonviolent crimes, and keeps them incarcerated for much longer. Eight in 10 women go to prison for nonviolent offenses. “Research has shown these long stays in prison have little or no effect on recidivism when people come home,” reads the report. “At the same time, these extra weeks, months and years place emotional and financial burdens on the families of those incarcerated.”

Proponents of the initiative say the state’s incarceration crisis is driven in large part by enhanced sentences, and they hope momentum from recent criminal justice reforms help the initiative succeed. “We’ve been working on responsible criminal justice reform for over a decade, and the good news is that support among voters continues to grow,” Steele said. “We have seen some tremendous momentum in recent years, and we are hoping to build on that momentum and deepen the conversation level of understanding and support statewide for a more effective approach to public safety.”

Gov. Kevin Stitt has publicly opposed the initiative, saying a constitutional amendment is the wrong way to go about criminal justice reform. Steele argues that a constitutional amendment would prevent lawmakers from trying to repeal the measure if approved by voters. He cited an attempt to repeal State Questions 780 and 781 only months after they were approved in November 2016....

District attorneys across the state have also publicly opposed the measure, saying it would negatively impact public safety. But proponents of the measure disagree because they don’t see many positives outcomes from the state’s high incarceration rates.

Some of the concerns of DAs are expressed in this local opinion piece authored by Jason Hicks, President of the Oklahoma District Attorneys Association, under the headline "Proposed state question could affect domestic violence sentencing."  Meanwhile, the  "Yes on 805" campaign has this website, but not a lot of details about 

I have no sense of whether proponents of this interesting initiative will be able to get it to voters, nor do I have any sense of whether Oklahoma voters might be supportive of this proposal.  But I think those troubled by mass incarceration, extreme sentencing terms and racially disparate sentencing practices are wise to focus criticism on the often out-sized impact of (even minor) criminal history at sentencing.  I do not know if this Oklahoma ballot initiative might be just the start of a whole new front for sentencing reform efforts, but I hope it can help generate a robust discussion of the many important issues that relate to the use of criminal history at sentencing.

February 13, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, February 12, 2020

"Remorse and Judging"

The title of this post is the title of this new book chapter authored by Susan Bandes now available via SSRN.  Here is the abstract:

This chapter focuses on the judicial evaluation of remorse.  It is an article of faith that judges can and should evaluate remorse when determining sentence.  Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions.  Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. 

Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge.  They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse.  Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity.  The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study.

February 12, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Tuesday, February 11, 2020

DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"

As noted in this prior post, yesterday federal prosecutors filed this 26-page sentencing memorandum advocating for a within-guideline sentence of 7.3 to 9 years in prison for Roger Stone.  Prez Trump in the middle on the night tweeted out his displeasure with that advocacy, and today we saw filed this new 5-page supplemental and amended memorandum from federal prosecutors.  This new document is remarkable in many respects, and here are just a few excerpts that I suspect federal defendants may be keen to quote in other cases (in part because this new filing almost reads like a defense submission):

The prior filing submitted by the United States on February 10, 2020 (Gov. Sent. Memo. ECF No. 279) does not accurately reflect the Department of Justice’s position on what would be a reasonable sentence in this matter.  While it remains the position of the United States that a sentence of incarceration is warranted here, the government respectfully submits that the range of 87 to 108 months presented as the applicable advisory Guidelines range would not be appropriate or serve the interests of justice in this case.

It is well established that the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935).  This axiom does not simply apply to the process of bringing charges or securing a conviction — it also “must necessarily extend” to the point where a prosecutor advocates for a particular sentence.  See United States v. Shanahan, 574 F.2d 1228, 1231 (5th Cir. 1978) (reviewing sentencing conduct of prosecutor). Applying that principle here, to the specific facts of this case, the government respectfully submits that a sentence of incarceration far less than 87 to 108 months’ imprisonment would be reasonable under the circumstances....

Here, as set forth in the government’s initial submission, the defendant’s total offense level is arguably 29 and his criminal history category is I, which would result in an advisory Guidelines range of 87 to 108 months.  Notably, however, the Sentencing Guidelines enhancements in this case — while perhaps technically applicable — more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b)....  Accordingly, it would be reasonable for the Court to conclude that the Guidelines range as calculated is unduly high on the facts of this case.

After calculating the Guidelines, the Court next turns to the statutory sentencing factors.  Title 18 of the United States Code Section 3553(a) states that a sentencing court should “impose a sentence sufficient, but not greater than necessary” to achieve the statutory goals of sentencing.  In doing so, Section 3553(a) delineates several factors that the court must consider when imposing a sentence, “and the sentencing range . . . as set forth in the Guidelines” is but one of those factors....  Here, there are several facts and circumstances supporting the imposition of a sentence below 87 to 108 months’ imprisonment....

Finally, the Court also should consider the defendant’s advanced age, health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence. As noted above, a sentence of 87 to 108 months more typically has been imposed for defendants who have higher criminal history categories or who obstructed justice as part of a violent criminal organization....

The defendant committed serious offenses and deserves a sentence of incarceration that is “sufficient, but not greater than necessary” to satisfy the factors set forth in Section 3553(a).  Based on the facts known to the government, a sentence of between 87 to 108 months’ imprisonment, however, could be considered excessive and unwarranted under the circumstances.

Interestingly, as reported via The Hill, a changed sentencing recommendation is not the end of the fallout here:

The four Department of Justice (DOJ) prosecutors who recommended Roger Stone be sentenced to seven to nine years in prison left the case Tuesday after top officials sought to reduce their sentencing request.

Prosecutors Michael Marando, Timothy J. Shea, Jonathan Kravis and Aaron Zelinsky all asked the judge in the case for permission to withdraw. Kravis left the DOJ entirely, announcing his resignation as an assistant U.S. attorney. The four were involved in providing the initial sentencing guidance for Stone. But in a rebuke to the career prosecutors, the DOJ on Tuesday told the judge in the case to apply "far less" to Stone's sentence....

The DOJ decision and the withdrawal of career prosecutors from the case stunned legal watchers and Washington and raised questions about potential political interference in the sentencing of a longtime Trump adviser. Reports of the DOJ reversal said top officials found the initial guidelines to be "excessive." Those reports also came after Trump blasted the guidelines on Twitter, saying that Stone was treated unfairly by prosecutors....

Speaking with reporters in the Oval Office, Trump said he didn't tell the Justice Department to amend its sentencing guidance but that he would have been within his rights to do so. “I'd be able to do it if I wanted. I have the absolute right to do it. I stay out of things,” Trump said.

"I didn't speak to them. I thought the recommendation was ridiculous. I thought the whole prosecution was ridiculous,” he continued. “I thought it was an insult to our country.”

Senate Minority Leader Charles Schumer (D-N.Y.) is calling on the DOJ's top watchdog to investigate the decision to suddenly recommend a lighter sentence for Stone, while the group Citizens for Responsibility and Ethics in Washington is sending the Justice Department a Freedom of Information Act request for records related to the case. "The DOJ Inspector General must open an investigation immediately. I will be sending a formal request to the IG shortly," Schumer tweeted.

Prior related post:

February 11, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (7)

For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!"

As reported in this Politico piece, "Federal prosecutors are urging that longtime Donald Trump adviser and Republican political provocateur Roger Stone be sent to prison for about seven to nine years for his conviction on charges of lying and witness tampering during investigations of ties between Russia and the Trump campaign." Here is more about the sentencing filings in this high-profile case that emerged late yesterday:

The stern recommendation is starkly at odds with a suggestion from Stone's defense team that he should be sentenced to probation — and no jail time — in the case.

Following a weeklong trial last November, a Washington jury found Stone guilty on all seven felony counts he faced: five of making false statements to Congress, one of obstruction of Congress, and one of witness tampering with both the House Intelligence Committee inquiry and special counsel Robert Mueller's probe.

In a sentencing filing Monday, prosecutors from the U.S. Attorney's Office in Washington argued that Stone's conduct was exceptionally sinister because of the importance of those investigations and the danger of overseas influence on U.S. elections. "Foreign election interference is the 'most deadly adversar[y] of republican government,'” prosecutors from the U.S. Attorney's Office in Washington wrote, quoting Alexander Hamilton's Federalist Paper No. 68....  The argument was strikingly similar — in some cases borrowing from the exact passages from the same Constitution-era text — as that lodged by the House's prosecutors during Trump's impeachment trial. "Alexander Hamilton cautioned that the 'most deadly adversaries of republican government may come 'chiefly from the desire in foreign powers to gain an improper ascendant in our councils,'" the House members argued in their trial brief....

While prosecutors tied the gravity of Stone's crimes to their impact on the electoral system, the bulk of the prison time authorities are calling for is a product of the prosecution's decision to treat hostile and vulgar messages Stone sent to longtime associate Randy Credico as genuine threats of violence, or at least as having the potential to stir up violence against Credico or others.  Prosecutors pointed, in particular, to a message Stone sent to Credico after he indicated plans to cooperate with the House committee. "Prepare to die, cocksucker," Stone wrote.  In another instance, Stone told Credico, who has a therapy dog, that he would "take that dog away from you."

Stone said during the trial his comments were in jest and part of the brash banter often exchanged between the two men, whose views are usually at opposite ends of the political spectrum. Prosecutors insisted that the barbed remarks mean Stone deserves between four and five years longer under federal sentencing guidelines than in cases involving witness tampering efforts that involve no physical threats.... Prosecutors acknowledged that Credico — a liberal New York city talk show host, comedian and activist — recently wrote to the court saying he did not think Stone was threatening him physically. Credico's letter urged that Stone get probation.  However, prosecutors also noted that during the trial, Credico said he was concerned about Stone's statements because they could encourage others to get violent.

Defense lawyers, who weighed in with U.S. District Court Judge Amy Berman Jackson late Monday night, vigorously disputed the notion that Stone's statements to Credico were actual threats to do anything.  They noted that at the trial Credico called Stone's comments "hyperbole" and said Stone "loves all dogs," so he could not have actually intended to harm Credico's service dog, a tiny Coton de Tulear who's almost constantly at his side. "Stone’s indecorous conversations with Randy Credico were many things, but here, in the circumstances of this nearly 20-year relationship between eccentric men, where crude language was the norm, 'prepare to die cocksucker' and conversations of similar ilk, were not threats of physical harm, 'serious acts' used as a means of intimidation, or 'the more serious forms of obstruction' contemplated by the Guidelines," Stone's lawyers wrote....

Stone, 67, faces a maximum of 50 years in prison at the sentencing, which Jackson has set for Feb. 20. Prosecutors say federal sentencing guidelines urge between 87 to 108 months in prison for Stone.  The defense disputes several aspects of that calculation and argues that the guidelines call for just 15 to 21 months.  Judges have the right to sentence above or below the guidelines, but are required to calculate the recommended sentence and take it into account.

Stone's defense also submitted a collection of letters from his wife and acquaintances in the political sphere and elsewhere.  "I can't tell you that Roger is a saint — he pushes everything to the limit even with you," Stone's wife Nydia wrote, alluding to Stone's run-ins with the judge over her gag orders and perhaps to an Instagram post he sent during the trial that included a picture of Jackson next to what appeared to be crosshairs. She also proclaimed her husband "loyal, kind, loving, considerate, generous and good-natured," as well deeply committed to Trump's re-election.

Among others asking for leniency for Stone were Democratic political consultant Hank Sheinkopf and former New York Republican gubernatorial candidate Carl Paladino.  Stone's supporters saluted him as an early backer of gay rights and marriage equality, an opponent of animal testing and a strong advocate for the easing of New York state's tough Rockefeller drug laws.

I am not surprised to see the upcoming Roger Stone sentencing to engender an interesting debate over both guideline calculations and 3553(a) factors (not to mention the real meaning of colorful phrases).  Here are the full filings from the parties:

Unsurprisingly (and I think importantly), President Donald Trump is not at all keen about the sentencing advocacy of his Department of Justice in this case. Among other tweets on the topic, Prez Trump retweeted a lament about federal prosecutors seeking "A *9 year* prison recommendation for non-violent crimes committed by a 67-year-old man." In addition, Prez Trump had this original tweet on the topic in the wee hours (just before 2am EST):

Regular readers know that plenty of extreme (and within-guideline) sentencing recommendations by federal prosecutors have kept me up at night, although I usually turn to blogging rather than tweeting to express my concerns about the banal severity and cruelty of the federal criminal justice system.  (For the record, all US Presidents — current, former and wanna-be — have an open invitation to guest-blog here about any sentencing matters!) 

Based on the submissions, I am inclined to (tentatively) predict that Judge Amy Berman Jackson will come to a lower guideline calculation than urged by prosecutors and yet still impose a below-guideline sentence.  But I still expect the sentencing judge to impose some prison time on Stone, at which point it will be interesting to see if Prez Trump will make another controversial use of his clemency power.  If Stone gets less than a year, I suspect Trump will leave him to serve his sentence at least until the upcoming election, as he has with Paul Manafort. 

As always, I welcome comments and other predictions from readers.

UPDATE: This Fox News article, headlined "DOJ expected to scale back Roger Stone's 'extreme' sentencing recommendation: official," suggests that federal prosecutors may soon be changing their sentencing tune in this high-profile case.

February 11, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Friday, February 07, 2020

Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal

As reported in this Los Angeles Times piece, "Douglas Hodge, once the leader of an international bond manager and now an admitted felon, was ordered Friday to spend nine months in federal prison for paying bribes totaling $850,000 to get four of his children into USC and Georgetown as fake athletic recruits."  Here is more about the latest sentencing in Operation Varsity Blues:

Hodge, 62, received the longest prison term of any of the 14 parents who have so far been sentenced for fraud and money laundering crimes they admittedly committed with William “Rick” Singer, a Newport Beach college admissions consultant who has acknowledged defrauding some of the country’s most selective universities for years with rigged exams, fake athletic credentials and bribes.  In addition to his prison term, U.S. District Judge Nathaniel M. Gorton ordered Hodge to pay a $750,000 fine, serve 500 hours of community service and remain on supervised release for two years.

“I know that I unfairly, and ultimately illegally, tipped the scales in favor of my children over others, over the hopes and dreams of other parents, who had the same aspirations for their children as I did for mine,” Hodge said in a statement. “To those children, and their parents, I can only express my deepest and sincerest regret.”

From the day he surrendered to authorities last March, Hodge, a resident of Laguna Beach, was among the highest-profile names in a scandal headlined with them. He rose to the head of Pimco, the bond management company based in Newport Beach, before retiring from the post of chief executive in 2016.

Prosecutors from the U.S. attorney’s office in Boston had asked Gorton to send Hodge to prison for two years. In a memo filed before his sentencing, they criticized Hodge as a hypocrite, appearing to the world the image of success and integrity while leading “a secret double life, using bribery and fraud to fuel a mirage of success and accomplishment.”

Hodge’s lawyers said the request for a two-year prison term reflected the Boston prosecutors’ “single-minded obsession” with obtaining undeservedly lengthy sentences in the high-profile case. Gorton handed down in November what was previously the longest sentence in the case, a six-month term, to Toby Macfarlane. The Del Mar title insurance executive is incarcerated in Tucson scheduled to be released in June, according to Bureau of Prison records.

Hodge pleaded guilty in October to conspiring to commit fraud and money laundering. Along with three other parents, he reversed his not-guilty plea after prosecutors warned of a new indictment carrying a bribery charge.

Eleven parents — a group that includes the actress Lori Loughlin and her husband, J. Mossimo Giannulli — balked at the threat, maintained their not-guilty pleas and were indicted on a bribery charge. Fifteen parents have pleaded not guilty; 21 have admitted their guilt or said they plan to do so...

Justin D. O’Connell, an assistant U.S. attorney in Boston, said Hodge did more than look away from Singer’s scheme. Hodge, he wrote in a memo, “engaged in the scheme more often, and over a longer period of time, than any of the defendants charged to date.” After his daughter was admitted to Georgetown, Hodge repeated the scam at the school for his oldest son and at USC for two more children, spending $850,000 in all. In arguing for a two-year sentence, O’Connell pointed to what he said was Hodge’s willingness to bring his children into his crimes.

He told his daughter to “stay under the radar,” and not tell a Georgetown interviewer that she had already been admitted through tennis, O’Connell wrote. Hodge vehemently disputed this. “The government simply has the facts wrong on this,” he said. His lawyers said he took “great steps” to hide from his children the scheme to transform them into elite athletes on paper, and that prosecutors have no evidence they were aware of, let alone complicit in, the fraud.

Prior related Varsity Blues posts:

February 7, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Friday, January 31, 2020

Effective accounting of Miller implementation four years after Montgomery made ruling retroactive

A few days ago marked four years since the US Supreme Court decided Montgomery v. Louisiana, a ruling which made retroactive the Court's prior decision in Miller v. Alabama declaring mandatory LWOP for juvenile murderers unconstitutional.  The folks at The Campaign for the Fair Sentencing of Youth marked the occasion by producing this short effective review of juve homicide sentencing past and present.  Here are some portions of the report:

When the Supreme Court decided Montgomery, over 2,800 individuals in the U.S. were serving life without parole for crimes committed as children — a sentence that the United States alone is known to impose on children. In the four years since Montgomery was decided, the number of individuals serving life without parole for crimes committed as children has been reduced by nearly 75 percent.

Fewer than 100 individuals have been resentenced to life without parole to date, which is less than 5 percent of all individuals whose sentences have been modified to date. And a number of those cases are on appeal.

Since Montgomery, close to 600 individuals have been released from prison who formerly were sentenced to life without parole as children, and that number continues to grow....

Today 22 states and the District of Columbia ban life-without-parole sentences for children, and in at least four additional states, no one is serving life without parole for a crime committed as a child.  Therefore more than half the country has rejected life-without-parole sentences for children in law or in practice....

Over 70 percent of all youth ever sentenced to life without parole are people of color — primarily Black and Latinx.

Strikingly, racial disparities in the imposition of life without parole on children continue to worsen.  The Supreme Court in Miller and Montgomery guaranteed all children an individualized sentencing hearing before life without parole can be imposed.  Yet despite the now-discretionary nature of life without parole, and the Supreme Court’s unequivocal language that the penalty may be imposed only if a child has no capacity for rehabilitation, racial disparities have increased under this new framework.

Of new cases tried since Montgomery, approximately 70 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before Montgomery...

With little guidance from the Supreme Court in Miller and Montgomery on the specifics of the resentencing process, states have varied significantly in the procedural protections afforded.  This patchwork of interpretations raises a high risk that resentencings to life without parole will be arbitrary, based more on the jurisdiction and the idiosyncrasies of individual judges than on whether the individual is capable of positive change.

Some states — including Georgia, Louisiana, Ohio, and Michigan — have continued to sentence children to life without parole in new cases at a rate that far outpaces the rest of the country, and in contravention of the constitutional mandate established in Miller and Montgomery that the sentence be uncommon.

Approximately 1,600 of the individuals whose sentences have been modified following Montgomery will go before a parole board, and the likelihood of release through the parole process varies greatly by state.  For example, Henry Montgomery — who was deemed a model prisoner by the Supreme Court in Montgomery v. Louisiana — has been denied parole twice by the Louisiana parole board.

January 31, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, January 30, 2020

Rehearing petition (and guest post) in Mississippi Supreme Court case upholding 12-year prison term for mere possession of cell phone in jail

6a00d83451574769e2022ad3762ba2200c-320wiIn this post earlier this month, I noted a disheartening ruling by the Mississippi Supreme Court upholding 12-year prison term for mere possession of cell phone in jail.  Will Bardwell, an attorney in the Mississippi office of the Southern Poverty Law Center, last week sent me a copy of a motion for rehearing that he helped file in the case (which can be accessed below).  I asked Will if he might want to do a guest posting to go along with my posting of the motion, and here is what he sent my way:

On its edges, sentencing law can be a bit of a technical thicket — difficult to navigate for laymen, or even for practitioners who don’t often work in that field. But at its heart, sentencing law — and the constitutional demands under which it exists – embodies our society’s sense of fairness. Above all else, sentencing demands that punishment must fit the crime.

It is not news that a consensus has developed among Americans that our criminal justice system’s priorities must be recalibrated. Nor is it news that our laws have failed to keep pace with that consensus. Unfortunately, though, the human toll of that failure does continue to make news.

In early January, the Mississippi Supreme Court added another ignominious chapter to that story when it affirmed the 12-year prison sentence of my client, Willie Nash.  In 2017, Willie was arrested for a misdemeanor in Newton County, Mississippi. The county jail’s policy is to strip-search all arrestees, but when Willie arrived, the jail violated that policy — so the cell phone that a search would have uncovered remained with Willie.  Willie never lied about the phone or made any effort to conceal it.  And guards might never have discovered the phone if Willie had not offered it up and provided the passcode to unlock it.

For this, Willie was convicted of taking a cell phone into a jail — and sentenced to an astonishing 12 years in prison.  No fewer than 36 states punish cell phone possession in a correctional facility with no more than five years in prison.  If anyone in American history has ever gotten 12 years for doing what Willie did, then my partners and I at the Southern Poverty Law Center are unaware of it. 

When Willie’s sentencing judge announced that decision, he pointed to Willie’s two prior burglary convictions some two decades earlier and explained that, if prosecutors had indicted Willie as a habitual offender, then Willie could have received 15 years — “so I want you to consider yourself fortunate,” the judge said.

It is no exaggeration to say that the Mississippi Supreme Court’s affirmance of that sentence shocked the world: the decision made headlines as far as way as New Zealand. And you don’t need a law degree to be as alarmed by the Mississippi Supreme Court’s reasoning as by its result.

Like Willie’s sentencing court, the Mississippi Supreme Court rested its decision heavily on Willie’s prior convictions. It pointed out the sentencing judge’s reliance on “evidence of Nash’s criminal history;” and it distinguished authority favorable to Willie by explaining that “Nash’s prior felony convictions subjected him to fifteen years’ imprisonment, to be served day for day, had the State charged him as a habitual offender.”

Like Willie’s sentencing judge, the Mississippi Supreme Court seems to think that Willie should consider himself lucky. But I’ve been in a room with Willie. I’ve looked into his tired eyes, heard his quiet voice, and seen how his oversized prison uniform hangs over his thin, slumping frame.

Willie doesn’t feel lucky.  And the many Mississippians that I’ve spoken to, from the widest imaginable political perspectives, don’t think Willie is lucky.

In fairness, the Mississippi Supreme Court must view Willie’s case through a different lens than most people.  For most of us, the shock to our consciences has been enough for us to know that Willie’s punishment does not fit his actions. For the Mississippi Supreme Court, though, that question has been complicated by the United States Supreme Court’s contorted precedent concerning the Eighth Amendment’s proportionality requirement.

That the Eighth Amendment requires proportionality is no longer up for debate.  Aside from its existence, though, the Court’s decisions over the past 40 years have left nearly every other detail of the proportionality requirement unsettled.  Seemingly irreconcilable decisions have been left unreconciled, and ambiguities have been left unclarified. In recent years, the Court has seemed content to keep its silence on the issue, perhaps hoping that lower courts will clarify what it has muddled.

But the outcome in lower courts has been predictably chaotic.  These unanswered questions are not merely fodder for academic debate.  There are human beings languishing in prison because of this case law jumble. Willie is one of them.

In particular, one unanswered question lies at the heart of Willie’s case: the Mississippi courts’ use of his prior convictions to justify his sentence.  Despite his two burglary convictions nearly 20 years ago, Willie was not charged as a habitual offender.  Mississippi’s courts relied on those convictions anyway -- and urged him to “consider yourself fortunate.”

But none of the United States Supreme Court’s proportionality decisions hold that prior convictions contribute to a crime’s gravity when the defendant was not charged as a recidivist.  In Ewing v. California, the Court insisted that “weighing the gravity of Ewing’s offense” required it to “place on the scales not only his current felony, but also his long history of felony recidivism.” But Ewing had been sentenced under California’s “three strikes” law. Likewise, the defendants in Rummel v. Estelle and Lockyer v. Andrade – both of whose challenges to their life sentences failed – were sentenced under habitual offender statutes.

But Willie wasn’t charged as a habitual offender. And if Mississippi courts wanted to sentence him like a habitual offender, then prosecutors should have charged him as a habitual offender.  But they didn’t.

Not surprisingly, lower courts have taken this unworked detail in different directions.  In 2016, for example, the South Dakota Supreme Court held that “[f]or purposes of challenging the constitutionality of a sentence in a noncapital case, it appears that a defendant’s criminal history is only relevant when the sentence is enhanced under recidivism statutes.”  That court is not alone in its view. Obviously, Willie’s case illustrates that the Mississippi Supreme Court has reached the opposite result; neither is it alone.

I’m hopeful that the Mississippi Supreme Court will correct the injustice of Willie’s case [based on the rehearing motion below] without the need to petition the United States Supreme Court.  Willie’s case certainly does not rely on novel legal theories; even under the proportionality requirement’s framework as unsettled as it is, Willie’s sentence is grossly disproportionate.  If, instead of taking a cell phone into jail, Willie instead had committed second-degree arson or poisoned someone in an effort to kill them, Mississippi law would have imposed a shorter sentence than the one he is serving today.  A 12-year sentence for something so much more innocuous simply doesn’t pass the straight-face test.

But even if the Mississippi Supreme Court reconsiders Willie’s case, our society’s sense of basic fairness cries out for the United States Supreme Court to begin cleaning up the mess that its predecessors have made of the proportionality doctrine.  The cost of that confusion is human lives like Willie’s.  And that cost is growing.

Download Nash v State - Motion for Rehearing (filed)

Prior related post:

January 30, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, January 28, 2020

"Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs"

The title of this post is the title of this new paper authored by Beth Colgan and Nicholas McLean now available via SSRN.  Here is its abstract:

In the wake of the Supreme Court’s decision in Timbs v. Indiana — which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines” — it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine.  The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families — in particular, the infliction of financial hardship — when assessing the severity of a forfeiture in the proportionality review context.  In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.

January 28, 2020 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, January 27, 2020

Sixth Circuit panel declares one-day prison sentence (plus 10 years on supervised release) for large child porn possession substantively unreasonable

In a series of rulings in recent years, most notably United States v. Bistline, the Sixth Circuit has found sentences for child porn possession that lacked some significant prison time to be unreasonable.  Another such ruling was handed down this past on Friday in United States v. Demma, No. 18-4143 (6th Cir. Jan 24, 2020) (available here).  The 15-page panel ruling, authored by Judge Gilman, gets started this way: "This is yet another case raising the issue of whether a one-day sentence for a defendant convicted of possessing child pornography is reasonable. For the reasons set forth below, we determine that it is not."  The full opinion is worth a read, and here are some key passages:

At the sentencing hearing, the district court focused almost entirely on Demma’s individual characteristics in deciding not to impose a term of incarceration. It relied, in particular, on the testimony of Dr. Peterson and Dr. Tennenbaum, both of whom opined that Demma’s use of child pornography was directly caused by his service in the military and his resulting PTSD.

To be sure, the district court did not err by recognizing Demma’s military service and PTSD diagnosis under § 3553(a)(1) as considerations relevant to his sentence.  See United States v. Reilly, 662 F.3d 754, 760 (6th Cir. 2011) (explaining that the defendant’s military service and lack of criminal history were “permissible considerations in the ‘variance’ determination under 18 U.S.C. § 3553(a)”).  But the court in the present case gave these considerations unreasonable weight in deciding to vary downwards to an essentially noncustodial sentence....

Moreover, in focusing on the role of Demma’s military service as purportedly causing his crimes, the district court cast Demma more as the victim than the perpetrator, stating that Demma’s crimes were “the result of his voluntary service to his community and his country” and “an unintended consequence” of his decision to serve in the Army.  This court has explained, however, that “[k]nowing possession of child pornography . . . is not a crime that happens to a defendant.”  Bistline I, 665 F.3d 758, 765 (6th Cir. 2012)....

Our overall conclusion is that, based on the totality of the circumstances, the district court weighed some factors under § 3553(a) too heavily and gave insufficient weight to others in determining Demma’s sentence.  This is not to say that some other defendant possessing far fewer and less offensive images over a much shorter period of time might justify such an extreme downward variance, but that is not Demma’s case.  As this court noted in United States v. Elmore, 743 F.3d 1068 (6th Cir. 2014), a United States Sentencing Commission report states that “fully 96.6 percent of first-time child-pornography-possession convictions led to at least some prison time.” Id. at 1076 (emphasis in original).  We find no basis in the record for Demma to not become part of this overwhelming statistic.  

January 27, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

SCOTUS dismisses Walker ACCA case after death of petitioner (and after robust amicus efforts)

As noted in this post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  Even more than the average ACCA case, the Walker case caught my attention because it involved an elderly man, James Walker, who received 15 years in prison under ACCA based on his possession of 13 bullets that he had found while cleaning a house.

Though the cert grant in Walker involved ACCA statutory interpretation concerning predicate prior offenses, I have long been troubled by any application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  (Indeed, long-time readers may recall I helped file an amicus brief in the Sixth Circuit and another amicus brief in support of a cert petition in a similar case, US v. Young, a few years ago.)  After seeing the cert grant in Walker, I reached out to some law professor colleagues and we filed earlier this month this SCOTUS amicus brief in US v. Walker, and here is part of the brief's Summary of Argument:

This Court’s interpretation of the reach of the Armed Career Criminal Act (ACCA), if properly informed by constitutional principles, must avoid application to Petitioner of the ACCA’s fifteen-year mandatory minimum prison term based on his possession of thirteen bullets in violation of 18 U.S.C. § 922(g)(1).  Because mere possession of ammunition is the most passive of crimes — in fact, most States do not even criminalize this behavior and it almost never results in severe punishment — a mandatory fifteen-year prison term is arguably disproportionately harsh.  That Petitioner possessed a small amount of ammunition, that he lacked any vicious or menacing mens rea, and that his prior convictions are decades old serve as additional factors suggesting that a mandatory minimum fifteen-year federal sentence for Petitioner’s offense is constitutionally suspect under any and all jurisprudential approaches to the Eighth Amendment.

As this Court has explained, the “canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009)....  Given extensive litigation over what predicate offenses qualify for ACCA’s enhanced penalties, there is little question that this Court confronts ambiguous statutory language in this case.  In turn, because any sound approach to the Eighth Amendment suggests serious constitutional doubts about the application of a fifteen-year mandatory sentence for “one of the most passive felonies a person could commit.”  Solem v. Helm, 463 U.S. 277, 296 (1983), the canon of constitutional avoidance provides support for the narrower interpretation of ACCA advanced by Petitioner.  Further, the absence of a modern Court application of the Eighth Amendment to a federal non-capital adult sentence suggests that this constitutional right is precisely the kind of constitutional norm that cautions judicial restraint when interpreting an ambiguous statute.

As this case highlights, broad interpretations of ACCA present a heightened risk of constitutionally questionable mandatory minimum sentences.  This Court should limit that risk by adopting the ACCA interpretation put forward by the Petitioner.

Notably, though I believe our amicus brief was the only one to raise Eighth Amendment issues, another half dozen amicus briefs were filed earlier this month supporting the petitioner.

But, sadly, petitioner's counsel filed this notice last week reporting that James Walker passed away on January 22, 2020.  In accord with its practice, the Supreme Court via this morning's order list, dismissed the writ of certiorari in this case.  I suspect that SCOTUS will before too long take up a replacement case to address the ACCA statutory issue, though I sincerely hope there are not a lot of other cases in the pipeline that also involve application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  If there are, I surely will continue to complain about this extreme sentencing provision.

January 27, 2020 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Sunday, January 26, 2020

Different type of drug dealers get lengthy (though still way-below-guideline) sentences for RICO conspiracy to push opiods

There are nearly 400 drug dealers sentenced in federal courts every single week in the US, but a number of notable defendants were sentenced last week for their role in a somewhat different kind of drug conspiracy.  This Forbes article provides the basic details:

John Kapoor, the 76-year old billionaire founder of Insys Therapeutics, has been sentenced to 66-months in prison for orchestrating a system of bribery and kickbacks to physicians across the US in exchange for prescribing and over prescribing large amounts of the powerful fentanyl spray, Subsys, to patients with little to no need of the drug. Kapoor is the first ever CEO of a drug company to be convicted by the federal government in their fight to combat the opioid crisis.

Kapoor’s sentence was handed down by U.S. District Judge Allison Burroughs in a Boston federal court on Thursday January 23rd.... It is the lengthiest prison sentence imposed on any of the seven former Insys executives who were found guilty of racketeering charges in May of 2019. In addition to Kapoor’s 66-month sentence he was sentenced to three years of supervised release and a $250,000 fine.

Similar sentences have been handed down in recent days to Kapoor’s seven co-conspirators.  Michael Gurry, Insys' former vice president, along with Richard Simon, Insys’ national director of sales, each received 33-months in prison; Michael Babich, Insys’ former CEO,was sentenced to 30-months; Joseph Rowan, the company's regional sales director, received 27 months; Alec Burlakoff, the former vice president of sales, was sentenced to 26 months Thursday; and Sunrise Lee, the former regional sales director, to a year and a day in prison....

The landmark case has been notable on two major fronts, the first being big pharma’s hand in the perpetuation and exacerbation of the opioid epidemic in the US and second, Insys’ systematic defrauding of the American healthcare system. From 2012 and 2015, Insys allegedly paid physicians to prescribe Subsys to patient and then went on to lie to insurance companies and defraud hundreds of thousands of dollars from Medicare from physician to physician to ensure that the expensive fentanyl-based painkiller would be covered....

Kapoor’s five and a half year sentence is considerably less than the 15-year prison sentence that was being sought by prosecutors who asserted that Kapoor was the ‘fulcrum’ of the racketeering scheme and was the only defendant who could not have been replaced by another conspirator.  Federal prosecutors wrote in a sentencing memo, "He was the principal leader, who personally approved, and thereafter enforced, the corrupt strategies employed throughout the conspiracy," continuing, "This crime would not have happened, could not have happened, without John Kapoor. It was, in almost every way, Kapoor’s crime."

Kapoor and his four co-defendants were faced with seven victims and family members of victims whose gave emotional statements about how their lives had been destroyed by Insys’ actions.  “By the grace of God, I am here to speak for all of us including the ones who lives you took,” said victim Paul Lara, who says he still suffers from being prescribed a drug that was never meant for him. Subsys, the powerful fentanyl spray is intended for terminal cancer patients to ease the pain during end of life care....

"Today's convictions mark the first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids," U.S. Attorney Andrew E. Lelling said in a statement.  "Just as we would street-level drug dealers, we will hold pharmaceutical executives responsible for fueling the opioid epidemic by recklessly and illegally distributing these drugs, especially while conspiring to commit racketeering along the way." Lelling continued,  "This is a landmark prosecution that vindicated the public's interest in staunching the flow of opioids into our homes and streets."

Though Kapoor will now have to be in federal prison until he is in his 80s and might not live out the term, this CBS News article reports that victims are not content with the sentences imposed. The piece is headlined "Pharmaceutical executives 'got away with murder,' says mom of woman who died of an overdose," and here is an excerpt:

The prison sentence given to the pharmaceutical executive who helped fuel the opioid crisis "wasn't fair," the mother of a woman who died of an overdose said.  Deb Fuller was at the Boston courthouse Thursday, where Insys Therapeutics founder John Kapoor was sentenced to five and a half years for his role in bribing doctors to prescribe the powerful painkiller Subsys.  "I don't think it was fair. It wasn't fair to all the victims," Fuller told CBS News consumer investigative correspondent Anna Werner....

Former Insys Therapeutics Vice President of Sales Alec Burlakoff, who was featured in a video of company employees rapping about increasing sales, also was sentenced.  He got a shorter term of 26 months in prison, reflecting the fact that he cooperated with prosecutors.  Outside the courthouse, when asked if there was anything he would say to families of people who overdosed on Subsys, he said, "I'm sorry, very sorry."

Four other executives received sentences ranging from a year and a day to 33 months, not long enough for many families. "They all got away with murder because that's exactly what they did because it's more than Sarah that died from it," Fuller said.

January 26, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Monday, January 20, 2020

SCOTUS to contemplate yet another level of ACCA jurisprudential hell with Shular oral argument

In this post a few years ago, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".   That post and that question was prompted by the headaches I get when trying to make sense of the the modern federal court jurisprudence over application of the Armed Career Criminal Act as it relates to whether a defendant's prior conviction qualities as a "violent felony."  But the US Supreme Court is due to hear oral argument tomorrow in Shular v. United States wherein the petitioner is presenting this question:

Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act.

Over at SCOTUSblog in this post titled "Argument preview: Category is: the categorical approach," Leah Litman sorts through the arguments made by the petitioner and the government.  Here are parts of the start and the end of her intricate discussion:

Most of the Supreme Court’s ACCA cases address the meaning of ACCA’s various definitions of “violent felony.”  But Shular’s case concerns the meaning of an ACCA provision that defines “serious drug offense.”  In Section 924(e)(2)(A)(ii), Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.”

The probation office determined that Shular’s prior Florida convictions were serious drug offenses and recommended that Shular be sentenced under the ACCA.  Shular objected, arguing that Congress defined “serious drug offense” as a series of generic offenses (manufacturing, distributing or possessing with intent) that do not match Florida’s drug offense.  (Specifically, Shular argued that the generic definitions of the drug offenses contain mens rea, or criminal intent, elements, while Florida’s drug laws do not.)....

There is a good amount of text and structure for the Supreme Court to work with in this case.  But the court may be interested in the implications of both sides’ interpretations. Shular is offering the court a tried-and-true approach that has come under fire in recent years.  The government is asking the court to venture into new terrain, but also does not want the court to consider some of the harder questions and greyer areas that might result from the government’s approach.  Oral argument could allow the justices to test out how the government’s proposed interpretation might work.

January 20, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, January 18, 2020

Former US Rep Chris Collins sentenced to 26 months for insider trading

As reported in this Politico piece, on Friday "former Rep. Chris Collins was sentenced to 26 months in prison for an insider trading scheme that led to his arrest and resignation from Congress." Here is more about a notable federal sentencing:

The Western New York Republican pleaded guilty in October, accused of passing illicit stock tips to his son from the White House lawn during a Congressional picnic.

Judge Vernon Broderick handed down the sentence Friday in Manhattan federal court along with a $200,000 fine, after the disgraced Congressman broke down in sobs as he pleaded for mercy for himself and his son. “I violated my core values and there is no excuse,” Collins said, breathing heavily. “What I have done has marked me for life.”

Collins, the first member of Congress to back Donald Trump for president, was charged in August 2018 with securities fraud, wire fraud and making false statements to FBI agents — part of an alleged scheme to share confidential information about an Australian biotech company whose board he sat on.

When he learned of the results of a failed trial for a multiple sclerosis drug, he called his son Cameron Collins to alert him — allowing the son and his fiancee’s father to unload Innate Immunotherapeutics stock before it tanked and avoid hundreds of thousands of dollars in losses.

He initially denied any wrongdoing and was reelected despite being under federal indictment, but ultimately pleaded guilty to one count of conspiracy to commit securities fraud and one count of lying to the FBI. He resigned his seat ahead of the plea....

Broderick said prison time was necessary to instill respect for the law. He said he did not buy Collins’ argument that his crime was one of emotion and faulted him for leaving his constituents with no representation in Congress. “I don’t view this as a spur of the moment loss of judgment,” Broderick said.

Collins faced a maximum of ten years in prison, but agreed in a plea deal to accept a sentence of up to 57 months. Prosecutors asked the judge to hit him with a sentence of 46 to 57 months, arguing that a hefty sentence was necessary to send the message that abuse of power would not be tolerated....

The former congressman asked to be spared jail time and be sentenced to probation, saying he had shown remorse and already paid a price for his crimes through the loss of his political career. “Chris is a fundamentally good and decent human being,” said his attorney, Jonathan Barr.

His son Cameron and Stephen Zarsky, the father in law of Cameron’s fiancee, have also pleaded guilty for their role in the insider trading scheme. Collins asked the judge to show mercy for his son, even if he himself was not spared.

January 18, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (3)

Sunday, January 12, 2020

Mississippi Supreme Court upholds 12-year prison term for mere possession of cell phone in jail

If anyone is looking for a recent example of why and how America persistently earns its status as incarceration nation, look no further than this local article, headlined "Miss. Supreme Court upholds 12-year sentence of man convicted for having cellphone in jail."   Here are the ugly details:

The Mississippi Supreme Court affirmed the 12-year sentence of a man convicted for having a cellphone in jail on Thursday.

Willie Nash was originally booked in the Newton County Jail for a misdemeanor charge when he asked a jailer to charge his smartphone. The jailer confiscated the phone and brought it to the sheriff’s deputy in charge....

A jury convicted Nash of possessing the cellphone in a correctional facility, a felony that carries three to 15 years in prison.  On Aug. 23, 2018, a judge sentenced Nash to 12 years in prison, telling Nash to “consider himself fortunate” for not being charged as a habitual offender based on his prior burglary convictions. Nash was also fined $5,000....

On appeal, Nash challenged the sentence, arguing a 12-year sentence was “grossly disproportionate to his crime” and in violation of the Eighth Amendment....  As for the proportionality of the sentence, the court ruled that while “obviously harsh," the sentence was not grossly disproportionate, and the court affirmed the conviction and sentence.

In a separate written opinion, Presiding Justice Leslie D. King agreed the court reached the correct ruling based on case law, but wrote of his concern that the case as a whole “seems to demonstrate a failure of our criminal justice system on multiple levels.”

King said it is probable that the Newton County Jail’s booking procedure was not followed in Nash’s case, allowing him to enter the jail with his phone.  King also noted that Nash’s behavior indicated that he was not aware that inmates could not bring phones into the correctional facility.  Justice King pointed out that Nash voluntarily showed the jailer his phone when asking him to charge it, suggesting that he was not told during booking that he was not allowed to keep his phone.

King also noted that Nash’s criminal history reveals a change in behavior, with his last conviction of burglary being in 2001, which he was sentenced to seven years in prison for.  For eight to 10 years, King said Nash had stayed out of trouble with the law. He also has a wife and three children who depend on him. Based on the nature of his crime, King said the judge should have used his discretion to consider a lesser sentence....

According to the Mississippi Department of Corrections website, Nash’s tentative release date is Feb. 2, 2029.

The full Mississippi Supreme Court opinion in this case is available at this link, and it serves to highlight how easy it is to use extreme and cruel punishments to justify more extreme and cruel punishments.  Because the defendant here is apparently parole eligible in as few as three years, the trial judge was not off-base when telling him that he was lucky not to be facing a true 15-year mandatory minimum under the state's habitual offender law. And the Supreme Court of Mississippi was able to cite to other cases of defendants getting even harsher sentences(!) for mere cell phone possession to conclude that this harsh sentence was not constitutionally problematic.

With the scale of punishments set so severely for so long in so many places throughout our country, I fear it has become almost routine for many judges and prosecutors to send people off to live in cages for years and years without deep reflection on just what these sentences really mean for the defendant and what they say about American as a nation.  I suspect that, if told in general terms that a citizen had been sent to prison for more than a decade for having a cell phone in the wrong place, most of us would think that this story was coming from China or Russia or some other country with a poor human rights record.  But, in fact, it is just another day in the United States, the supposed land of the free. Sigh.

January 12, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Sunday, January 05, 2020

Noting the discouraging connection between criminal justice involvement and overdose deaths

This recent Connecticut Mirror piece, headlined "From prison to the grave: Former inmates now account for more than half of all drug overdose deaths in Connecticut," spotlights the disconcerting link between involvement with the criminal justice system and overdose deaths:

Accidental drug overdose deaths tripled in Connecticut between 2010 and 2018, with the proportion of overdose victims with prior involvement in the criminal justice system slowly increasing during that time.

Former inmates account for more than half of the people who died from drug overdoses between 2016 and 2018, according to an analysis of new state data. In 2015, this same group made up 44% of the people who died from an overdose.

Officials with the Office of Policy and Management’s Criminal Justice Policy and Planning Division discovered the uptick in drug deaths among former inmates when examining data from the Office of the Chief Medical Examiner and the Department of Correction.

While the data shows an overlap between criminal justice involvement and overdose deaths, many details are still missing.  While officials believe the majority of the overdose deaths are from fentanyl, for example, OPM did not specify this in its analysis.  There has been a dramatic increase in fentanyl-related deaths statewide over the past half-decade, according to the Office of the Chief Medical Examiner.  Of 1,017 opioid deaths last year, 75% involved fentanyl. In 2012, fentanyl deaths accounted for 4% of the total.

There are other unanswered questions, as well. “We don’t know whether they were admitted pretrial or served a sentence,” said Marc Pelka, Gov. Ned Lamont’s undersecretary of criminal justice policy and planning. “We don’t know how soon after their release they experienced an accidental drug overdose death.”

Pelka said his office likely would do a deeper dive into the data to learn more about the intersection between arrests and overdose fatalities.  Even without that detail, however, the data is startling, officials said.  “I hope that this whole commission really understands what this shows. Because I’m seeing this come across my desk every day,” Department of Correction Commissioner Rollin Cook told his colleagues on the Criminal Justice Policy Advisory Commission during a recent presentation on the data.  Cook said one of his jobs is to sign off on investigations into overdose deaths of people who have been released from prison but are still under state supervision.

Those reports, Cook said, often show the overdose victims were attending recovery programs and adhering to the terms of their parole.  “They’re doing everything they’re supposed to do,” he said. “Yet we’re still losing them. They’re dying.”

People released from prison are at greater risk of certain early deaths compared to the general population.  Research shows people who get out of prison are 40 times more likely to die of an opioid overdose within two weeks of their release than those who haven’t spent time behind bars.  In Connecticut, white ex-prisoners are more likely to die from drug overdoses, while black former inmates are more likely to die by homicide....

The overlap between criminal justice system involvement and addiction makes sense to Louis Reed, an organizer for the national criminal justice reform group Cut 50.  Criminal records function as scarlet letters, making it hard for people to secure housing or land jobs even after their sentences have ended. “The moment they get a door slammed in their face they most likely are going to go right back to what it is they felt was more comfortable to them,” Reed explained.  Using drugs after a long period of sobriety while incarcerated also poses problems, said Reed. Tolerances decrease when people don’t use for a while.  That puts them at risk of an accidental overdose because their first hit “shocks their system.”

January 5, 2020 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)