Sunday, August 18, 2019

Enduring examinations of the data and dynamics of modern mass incarceration

Professor John Pfaff's important book on modern criminal justice systems in the United States, Locked In: The True Causes of Mass Incarceration - and How to Achieve Real Reform, was published more than 2.5 years ago.  But the data and themes covered in this book remain quite timely, as well evidenced by two new pieces published this week.  The first is by Pfaff himself in Politico under the headline "What Democrats Get Wrong About Prison Reform." A paragraph from the start of this piece provides highlights: 

Drug crime is not what’s driving the high prison population in the United States.  It’s crimes of violence.  And this omission has consequences. It means that any “solution” is unlikely to achieve its intended goal and in the meantime society will continue to suffer long-term damage — physical, psychological and economic — from a persistent cycle of unaddressed violent crime.

The second is this much longer treatment of these important subjects in the Federalist Society Review under the title "Two Views on Criminal Justice Reform: The Author and a Critic on Locked In." This document has two terrific pieces: (1) an "An Interview with Professor John Pfaff" curated by Vikrant Reddy, and (2) "Refreshing Candor, Useful Data, and a Dog’s Breakfast of Proposals: A Review of Locked In by John Pfaff" authored by Kent Scheidegger. Here is how Scheidegger's review of Pfaff gets started:

John Pfaff gives us two books under one cover in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.  In the first book, he tells us that nearly everything we have been told about so-called mass incarceration by his fellow “reform” advocates is false.   His candor is a breath of fresh air. He convincingly makes the case with a mound of useful data.

The second book, in contrast, is thinly supported and heavily influenced by Pfaff’s predispositions.  He tells us that high incarceration rates are caused primarily by overcharging prosecutors, though his data do not rule out alternative hypotheses.  He claims that the election of tough prosecutors is caused by the “low-information, high salience electorate,” not by informed people who genuinely and justifiably disagree with him on priorities.   The primary ingredients in his stew of solutions are tools to save the ignorant masses from themselves by making our society less democratic and our criminal justice decision-makers less responsible to the people.  Other intriguing possibilities raised by his data go unexplored.

Pfaff does not define what he means by “reform,” but he appears to use that term for policies that have the single-minded purpose of reducing the number of people incarcerated.  Obviously, that is not the sole or universally accepted meaning of the term in criminal justice. The Sentencing Reform Act of 1984 definitely did not have that purpose.  In this review, I will put the word “reform” in quotation marks when used in Pfaff’s sense.

August 18, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 29, 2019

Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing

A helpful reader made sure I did not miss the rich opinions coming today from the Michigan Supreme Court in People v. Beck, No. 152934 (Michigan July 29, 2019) (available here).  Here is part of the start of the majority opinion authored by Chief Justice McCormack:

In this case, we consider whether a sentencing judge can sentence a defendant for a crime of which the defendant was acquitted.

That the question seems odd foreshadows its answer. But to explain the question first: Once a jury acquits a defendant of a given crime, may the judge, notwithstanding that acquittal, take the same alleged crime into consideration when sentencing the defendant for another crime of which the defendant was convicted?  Such a possibility presents itself when a defendant is charged with multiple crimes.  The jury speaks, convicting on some charges and acquitting on others.  At sentencing for the former, a judge might seek to increase the defendant’s sentence (under the facts of this case, severely increase, though we consider the question in principle) because the judge believes that the defendant really committed one or more of the crimes on which the jury acquitted.

Probably committed, that is: A judge in such circumstances might reason that although the jury acquitted on some charges, the jury acquitted because the state failed to prove guilt on those charges beyond a reasonable doubt.  But the jury might have thought it was somewhat likely the defendant committed them.  Or the judge, presiding over the trial, might reach that conclusion.  And so during sentencing, when a judge may consider the defendant’s uncharged bad acts under a lower standard — a mere preponderance of the evidence — the judge might impose a sentence reflecting both the crimes on which the jury convicted, and also those on which the jury acquitted but which the judge finds the defendant more likely than not did anyway.  Is that permissible?

We hold that the answer is no. Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.

Justice Viviano authored a lengthy solo concurrence that starts this way:

In every criminal trial, jurors are instructed, “What you decide about any fact in this case is final.”  But if a judge may increase a defendant’s sentence beyond what the jury verdict alone authorizes — here, based on the judge’s finding that the defendant committed a crime of which the jury just acquitted him — a more accurate instruction would read: “What you decide about any fact in this case is interesting, but the court is always free to disregard it.” Though I concur fully in the majority opinion, including its holding that due process precludes consideration of acquitted conduct at sentencing under a preponderance-of-the-evidence standard, I write separately to explain (1) why I believe that, because defendant’s sentence would not survive reasonableness review without the judge-found fact of homicide, his sentence also violates the Sixth Amendment, and (2) why I believe more generally that the consideration of acquitted conduct at sentencing raises serious concerns under the Sixth Amendment.

And Justice Clement authored an extended dissent for herself and two other that concludes this way:

The majority’s holding may be difficult to apply, and it directly contradicts existing precedent.  The presumption of innocence does not prohibit the trial court from considering conduct underlying acquitted charges when sentencing a defendant for convicted offenses as long as the conduct is relevant and supported by a preponderance of the evidence. The contrary conclusion is belied by the majority’s failure to cite any supporting precedent for its conclusion.  Accordingly, I dissent from this Court’s reversal of the judgment of the Court of Appeals.  I would have affirmed the holding of the Court of Appeals that the trial court did not err by considering conduct underlying defendant’s acquitted charge but reversed insofar as the Court of Appeals remanded this case for a Crosby hearing.  Pursuant to this Court’s decision in People v Steanhouse, 500 Mich 453, 460-461; 902 NW2d 327 (2017), I would have instead remanded this case to the Court of Appeals so that it could determine whether the trial court abused its discretion by violating the principle of proportionality.

Based on my too-quick scan of these opinions, it seems that the majority's holding is grounded on federal constitutional law (rather than just on state constitutional law). This means the state of Michigan could reasonably opt to seek further review in the US Supreme Court. Give Justice Gorsuch's work to date on similar issues and Justice Kavanaugh's past statements about acquitted conduct, I really hope Michigan might try to garner the Justices' attention on this conceptual and practically important topic.

July 29, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Monday, July 08, 2019

Some news and notes surrounding latest indictment of Jeffrey Epstein

The arrest and now (not-quite-second) federal prosecution of billionaire Jeffrey Epstein is all the buzz in the criminal justice world today, and this New York Post article provides some highlights on the indictment that was unsealed and how federal prosecutors are now approaching this matter:

Convicted pedophile Jeffrey Epstein “sexually exploited and abused” dozens of underage girls as young as 14 at his homes in New York and Florida in the early 2000s, Manhattan federal prosecutors alleged in an indictment unsealed Monday.  The billionaire financier was charged with sex trafficking and a related conspiracy count for allegedly creating “a vast network of underage victims” for him to exploit across multiple states from 2002 to 2005, the Manhattan federal court documents say.

Aided by three unidentified employees Epstein, 66, allegedly paid the girls hundreds of dollars in cash to come to his residences in Manhattan and Palm Beach to give him nude “massages” that would become “increasingly sexual in nature,” prosecutors allege.  “During the encounter, Epstein would escalate the nature and scope of physical contact with his victim to include, among other things, sex acts such as groping and direct and indirect contact with the victim’s genitals,” the indictment alleges....  Epstein “intentionally sought out” girls under 18 — and knew the girls were underage because some told him how old they were, they allege.

“The alleged behavior shocks the conscience and while the charged conduct is from a number of years ago, it is still profoundly important to the alleged victims,” Manhattan US Attorney Geoffrey Berman said at a news conference announcing the charges. “They deserve their day in court and we are proud to be standing up to them by bringing this indictment.”

The indictment shows the feds want to seize Epstein’s lavish townhouse at 9 E. 71st St. — a seven-story, 21,000-square-foot Upper East Side pad that is one of Manhattan’s largest townhouses and was allegedly one of the venues for his sick sexual pyramid scheme. Authorities “seized evidence including nude photographs what appear to be underage girls,” Berman said.

Epstein’s indictment follows a controversial deal he struck in 2008 with prosecutors in Palm Beach, Florida, after cutting a non-prosecution agreement with the Miami US Attorney’s Office, as detailed last year in an expose by the Miami Herald.  Epstein was facing up to life behind bars, but got a sentence of just 13 months.  The Miami US attorney at the time was Alex Acosta, who is now President Trump’s secretary of labor, and the Justice Department launched an investigation of that agreement in February following a request from Sen. Ben Sasse (R-Nebraska).

Berman said Epstein’s non-prosecution agreement “only binds the Southern District of Florida.”

“The Southern District of New York is not bound and is not a signatory,” he said.

Prosecutors will seek to have Epstein held without bail when he appears in court later Monday, Berman said. Berman called Epstein a “significant flight risk” due to his “enormous wealth” and the fact that the charges against him carry a maximum 45 years in prison, which Berman called “basically a life sentence” for someone of Epstein’s age. Berman also noted that Epstein owns two private plans and lives “much of the year abroad.”

Epstein was arrested around 5:30 p.m. on Saturday at Teterboro Airport in New Jersey, where he arrived in a private plane from Paris, officials said.

The full 14-page indictment in this high-profile matter is available at this link.

A few prior related posts:

UPDATE: This new Atlantic article by Ken White, headlined "The Jeffrey Epstein Case Is Like Nothing I’ve Seen Before: Great wealth insulates people from consequences, but not always, absolutely, or forever," is the best read on this case that I have seen of late.

July 8, 2019 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (4)

Sunday, July 07, 2019

"Statutory Federalism and Criminal Law'

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

Federal law regularly incorporates state law as its own.  And it often does so dynamically so that future changes to state laws affect how federal law will apply.  For example, federal law protects against deprivations of property, but states largely get to define what property is.  So when a state changes its property law, it automatically influences the effect of federal law.  This interdependence eases the tension that would otherwise arise when two different governments issue overlapping regulations.

This Article is the first to identify how rare meaningful use of dynamic incorporation is in criminal law and also how this scarcity impairs that law.  With some notable exceptions, Congress ordinarily acts alone in criminal law.  But using dynamic incorporation more often would redress two problems: the political inertia that leads to a one-way ratchet in criminal law and the limited accountability for enforcement discretion.

Marijuana laws provide a compelling example.  Federal law flatly prohibits all marijuana use.  But forty-six states now have laws that conflict with federal law, and 93 percent of Americans believe that medicinal marijuana should be lawful.  The only legislation Congress has managed to pass in response to this conflict makes heavy use of dynamic incorporation.  This example and others suggest that dynamic incorporation reduces the inertia that ordinarily makes it difficult for Congress to pass responsive legislation in criminal law.  What is more, dynamic incorporation creates additional flexibility that prevents these kinds of conflicts from arising in the first place.

Dynamic incorporation also furthers separation of powers values.  Local and federal enforcement officials have crafted joint relationships that make local officials a critical part of federal enforcement.  This relationship is efficient, but it also enables local officials to evade state law constraints.  Local officials use this ability to exacerbate, among other things, sentencing disparity.  Dynamic incorporation rebalances power by giving state legislatures the opportunity for greater oversight of enforcement discretion, enhancing enforcement accountability.

July 7, 2019 in Marijuana Legalization in the States, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Friday, June 28, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

SCOTUS, in final order of OT 2018, adds two more federal criminal cases to docket for next Term

The Supreme Court released its final order list for the Term today, and it unsurprisingly starts with a bunch of remands based on its recent big criminal rulings.  I will do a distinct post on those remands, and here will instead focus on a few of the 11+ cases in which SCOTUS granted certiorari review for hearing the cases in the fall.  Most of these cases (some of which are consolidated) deal with civil issues, but I see two that are federal criminal matters: Kelly, Bridget v. United States, No. 18-1059, and Shular, Eddie v. United States, No. 18-6662.

SCOTUSblog has this page covering Kelly, which emerges from the high-profile "Bridgegate" scandal in New Jersey and present this issue:  "Whether a public official 'defraud[s]' the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision."

And the Shular case is yet another case raising an important technical issue in the application of the Armed Career Criminal Act, with the cert petition 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?"

Last but not last, the SCOTUS order list ends with a cert denial in a South Carolina case, McGee v. McFadden, No. 18-7277, which prompted an eight-page dissent from Justice Sotomayor starting this way:

Pro se petitioner Shannon McGee has a strong argument that his trial and resulting life sentence were fundamentally unfair because the State withheld material exculpatory evidence.  See Brady v. Maryland, 373 U. S. 83, 87 (1963).  The state courts offered flawed rationales for rejecting that claim. Nevertheless, the District Court denied McGee federal habeas relief, and both the District Court and the U.S. Court of Appeals for the Fourth Circuit summarily declined to grant McGee a “certificate of appealability” (COA), 28 U.S.C. §2253(c), concluding that his claim was not even debatable.  Without a COA, McGee cannot obtain appellate review on the merits of his claim.  See ibid.  Because the COA procedure should facilitate, not frustrate, fulsome review of potentially meritorious claims like McGee’s, I would grant the petition for writ of certiorari and reverse the denial of a COA.

June 28, 2019 in Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 23, 2019

Were lawyers busy all weekend drafting "Rehaif motions" seeking relief for "tens of thousands of prisoners" potentially impacted by the SCOTUS decision?

The question in the title of this post is prompted by the dire claims appearing in Justice Alito's dissent in Friday's Supreme Court ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here).  At the start of his dissent, Justice Alito frets that the Court's ruling in Rehaif "will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions" and that "[a]pplications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts."  At the end of his dissent, he returns to this lament (with cites removed):

Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g).  It is true that many pleaded guilty, and for most direct review is over.  Nevertheless, every one of those prisoners will be able to seek relief by one route or another.  Those for whom direct review has not ended will likely be entitled to a new trial.  Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies.  If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past.  This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.”...

The majority today opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant’s knowledge.

Though I am not sure that the litigation following the Court's decision in Rehaif will amount to a flood, I am sure that it will be interesting to see just how this ruling echoes through the lower courts in the weeks and months ahead.

June 23, 2019 in Gun policy and sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Friday, June 21, 2019

SCOTUS finds mens rea of "knowing" distributes in gun statute in Rehaif

The Supreme Court ruled for a federal criminal defendant today in classic criminal law mens rea case in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here). Justice Breyer authored the opinion for the Court, which starts this way:

A federal statute, 18 U. S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid.  A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “knowingly.”  Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?  We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status.  To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

Justice Alito penned a lengthy dissent, which was joined by Justice Thomas and starts this way:

The Court casually overturns the long-established interpretation of an important criminal statute, 18 U. S. C. §922(g), an interpretation that has been adopted by every single Court of Appeals to address the question.  That interpretation has been used in thousands of cases for more than 30 years.  According to the majority, every one of those cases was flawed. So today’s decision is no minor matter.  And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law.  It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.

Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions.  Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts.  A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of harmless-error review.

June 21, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 19, 2019

"Testing Periods and Outcome Determination in Criminal Cases"

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

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

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

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

Tuesday, June 18, 2019

"Most US drug arrests involve a gram or less"

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Monday, June 17, 2019

Via lengthy opinions, SCOTUS preserves "dual sovereignty" doctrine in Gamble

Unsurprisingly, the Supreme Court has decided not to overturn its longstanding "dual sovereignty" doctrine in the case of Gamble v. US, No. 17-646 (S. Ct. June 17, 2019) (available here). Here is how the Court's majority opinion, authored by Justice Alito, gets started:

We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”?

We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.

Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below.

Notably, Justice Thomas pens an extended concurrence in Gamble, but does so "to address the proper role of the doctrine of stare decisis." Thereafter, Justice Ginsburg authors a lengthy dissent, and Justice Gorsuch authors an even longer dissent. I hope to have more to say about all these opinions in the days to come, but the close of Justice Gorsuch's dissent seem immediately blogworthy:

Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs. It is not for this Court to reassess this judgment to make the prosecutor’s job easier. Nor is there any doubt that the benefits the framers saw in prohibiting double prosecutions remain real, and maybe more vital than ever, today. When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is “the poor and the weak,” and the unpopular and controversial, who suffer first — and there is nothing to stop them from being the last. The separate sovereigns exception was wrong when it was invented, and it remains wrong today.

June 17, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Saturday, June 15, 2019

"Criminal Clear Statement Rules"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and Joseph Edward Kennedy available via SSRN. Here is its abstract:

There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive.  Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws.  The problems of over-criminalization thus seems to be both a predictable yet intractable consequence of the incentives that legislatures face.  But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes.

The Supreme Court has created clear statement rules to protect important values, such as federalism and the separation of powers.  Legislatures can overcome those values, but only if they do so affirmatively and unambiguously.  Just as existing clear statement rules protect important structural values, new criminal clear statement rules would protect important criminal justice values.  Unless statutes clearly state that they reject those values, clear statement rules will result in statutory interpretations that better protect the interests of criminal defendants. 

The result will be clearer and more thoughtful criminal laws — both because legislatures will write better statutes and because judges will construe poorly drafted statutes in a more narrow and predictable manner.  In addition to making the case for criminal clear statement rules as a general interpretive tool, this Article proposes two specific clear statement rules.  One rule would create a default presumption of a knowing mental state requirement for material elements.  The other would impose a substantial harm requirement.  Both would markedly improve the state of modern criminal law.

June 15, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, June 10, 2019

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

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

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

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

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

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

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

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

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

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

Thursday, June 06, 2019

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

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

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

Here are the basic particulars:

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

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

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

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

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

Tuesday, June 04, 2019

"Reconsidering The 'Violent Offender'"

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

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

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

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

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

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

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

Wednesday, May 29, 2019

Oklahoma makes retroactive its 2016 defelonization reform initiative

Still more proof that deep red states can be deeply committed to deep criminal justice reforms comes in this local article from Oklahoma headlined "Governor signs legislation to make State Question 780 retroactive." Here are the encouraging particulars:

Gov. Kevin Stitt on Tuesday signed into law a criminal justice reform measure that will make State Question 780 retroactive.  Voters passed the state question in 2016 to reclassify some drug possession and property crimes as misdemeanors instead of felonies.

The retroactivity legislation, which takes effect Nov. 1, establishes an expedited commutation process for people who are serving felony prison sentences for offenses that are now misdemeanors. It also provides a simplified path to expungement for people with old drug possession and low-level property convictions.

Lawmakers estimated that 500 to 800 people could be released on simple possession charges and up to 60,000 people could have their records expunged under the bill.

The legislation will allow families to be reunited and will contribute to workforce development, said Kris Steele, executive director of Oklahomans for Criminal Justice Reform, a nonpartisan coalition that pushed for the retroactivity measure and other legislative reforms.  "Tens of thousands of Oklahomans will be eligible to apply to have their felony taken off their record, which will open up new and hopefully more fruitful employment opportunities for them," Steele said....

"Making the reforms in State Question 780 retroactive not only upholds the will of the people, the voters of our state, but it also opens up a lot of opportunities for individuals who have that scarlet letter hanging around their neck to have that removed and it affords those individuals the opportunity to move forward in life in a very healthy and positive way," he said.

The law directs the Oklahoma Pardon and Parole board to establish an accelerated, single-stage commutation docket for applicants currently serving time who have been convicted of a crime that has been reclassified from a felony to a misdemeanor.  Typically, applicants seeking commutation must pass through a two-stage review process with the Pardon and Parole Board in order to receive a favorable recommendation to the governor, who has final say about whether to grant a commutation.

May 29, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 24, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Florida completes execution of killer of 10 women in 1984

As detailed in this AP article, a "serial killer who terrorized Florida with a murderous spree that claimed 10 women in 1984 was put to death Thursday, his execution witnessed by a woman who survived one of his attacks and aided in his capture."  Here is more:

Bobby Joe Long, 65, was pronounced dead at 6:55 p.m. Thursday following a lethal injection at Florida State Prison.  Long had no last words, simply closing his eyes as the procedure began, witnesses said.

The killer terrified the Tampa Bay area for eight months in 1984 as women began showing up dead, their bodies often left in gruesome poses.  Most were strangled, some had their throats slit, and others were bludgeoned.  Law enforcement had few clues until the case of Lisa Noland, who survived one of Long's attacks.  She witnessed Thursday's execution from the front row.

Just 17 in 1984, Noland was abducted by Long outside a church that year.  He raped her but ultimately let her go free.  She left evidence of his crimes on the scene and gave police details leading to his capture.  Long confessed to the crimes, receiving 28 life sentences and one death sentence for the murder of 22-year-old Michelle Simms. 

Noland positioned herself in the witness room where she hoped Long would see her.  "I wanted to look him in the eye. I wanted to be the first person he saw.  Unfortunately, he didn't open his eyes," she said.  "It was comforting to know this was actually happening."  She said she began to cry after she left the room once it was over.  “The peace that came over me is a remarkable feeling,” she said.

Another witness wore a polo shirt with a photo of one victim on the front and the words "Gone But Not Forgotten."  On the back were photos of all 10 slaying victims and the words, "The Ones That Matter."...

Investigators were baffled by the trail of bodies Long left around Tampa Bay.  Artiss Ann Wick was the first killed, in March 1984.  Nine others followed.  Law enforcement had few clues until Noland told her story. 

Noland said beforehand that she knew what she would have said if she could have addressed Long. Said Noland: "I would say 'Thank you for choosing me and not another 17-year-old girl.'"...

The execution was the first under Gov. Ron DeSantis, who took office in January.

May 24, 2019 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (1)

Monday, May 20, 2019

Waiting for Godot ... Gundy

Waiting-for-godot1-740x1024With apologies to Samuel Beckett, the following script came to mind t capture how I am feeling after another morning of SCOTUS rulings without a decision in one interesting criminal case argued way back in early October:

ESTRAGON: Charming spot. (He refreshes SCOTUSblog.) Inspiring prospects. (He turns to Vladimir.) Let's do some other work.

VLADIMIR: We can't.

ESTRAGON: Why not?

VLADIMIR: We're waiting for Gundy.

ESTRAGON: (despairingly). Ah! (Pause.) You're sure it won't be DIGed?

VLADIMIR: What?

ESTRAGON: That we might wait and wait and not get a ruling.

VLADIMIR: They said by June. (They look at the calendar.) Do you see any others cases taking this long?

ESTRAGON: What others?

VLADIMIR: I don't know. A civil case.

ESTRAGON: What about all the capital cases?

VLADIMIR:  What are you insinuating? That we've come to the wrong place?

ESTRAGON: It should be here by now.

VLADIMIR: Then didn't say for sure it'd come.

ESTRAGON: And if it doesn't come?

VLADIMIR: We'll come back next decision day.

ESTRAGON: And then the decision day after that.

VLADIMIR: Possibly.

ESTRAGON: And so on.

VLADIMIR: The point is—

ESTRAGON: Until Gundy comes.

May 20, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

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

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

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

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

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

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

Thursday, May 16, 2019

"Promoting Equality Through Empirical Desert"

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

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability.  This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory.   Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform.  Chief among them: it draws from community intuitions, and community intuitions — as the theory acknowledges — are sometimes immoral.  In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices.

This Article argues that these critiques are misplaced and overstated, and that empirical desert theory can be safely relied on in criminal justice — and beyond.  Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology.   Moreover, it can do even better. T  his Article presents an innovative proposal to reconceptualize the theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination.  It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections.  Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them.  In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.

May 16, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

California felony murder revisions showcase, yet again, the varied challenges of giving retroactive effect to sound reforms

The Marshall Project has this notable new article about the application of California's new felony murder law under the headline "California Law Says This Man Isn’t a Murderer. Prosecutors Disagree." Here are excerpts:

After California changed its murder laws last fall, Neko Wilson was the first man to walk free. Wilson, 37, had been facing the death penalty for a 2009 robbery that led to the deaths of a couple in Fresno County.  No one accused him of killing anyone, or even being in the family’s home that night, but prosecutors said he helped plan the break-in.  At the time, that was enough for him to be charged with felony murder, under a doctrine that holds that anyone involved in a crime is responsible if a death occurs.

But in September 2018, the legislature limited murder charges to people who actually participate in a slaying. And so in October, Wilson left the Fresno County jail, where he had spent nine years awaiting trial, subsisting largely on beans and instant noodles....

That freedom may be short-lived.  Prosecutors have moved to send Wilson back to jail, arguing that the new law that freed him violates California’s constitution and that freeing him was a mistake.  A hearing is set for May 16.

District attorneys around the state have launched similar challenges since prosecutors in Orange County successfully argued in February that the new murder law unconstitutionally clashes with anti-crime initiatives that voters approved in 1978 and 1990.  As prisoners around the state seek release, some judges have agreed with the constitutional argument and others have rejected it, setting up a fight that is likely to end up in the state’s highest court.

The cases are a sign of the broader pushback facing state lawmakers who have passed laws aimed at reducing the prison population and the cost of incarceration.  After decades of tough-on-crime laws, California now leads the nation in shrinking the number of people behind bars, while crime remains near historic lows.  But the trend has angered some prosecutors, who say lawmakers are risking public safety.

May 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, May 12, 2019

Split California Court of Appeal rejects claim that second-degree felony murder provision unconstitutionally vague

A helpful reader made sure I saw an interesting and lengthy split California Court of Appeal ruling in In re White, No. E068801 (Cal. 4th App. Dist. April 30, 2019) (available here). Here is how the majority opinion gets started, along with the start of its substantive analysis:

Petitioner Gregory White challenges the constitutionality of his conviction for second degree felony murder (Pen. Code, § 187) on the basis of the United States Supreme Court’s decision in Johnson v. United States (2015) __ U.S. __, 135 S.Ct. 2551 (Johnson), and seeks relief via a petition for writ of habeas corpus....

As we discuss herein, there are some general similarities and some differences between the categorical approach analysis to the ACCA’s residual clause that the United States Supreme Court found unconstitutionally vague in Johnson and the abstract analysis under California law for the second degree felony-murder rule.  However, on this record, we do not find unconstitutional vagueness in petitioner’s conviction for second degree felony murder for the death of an accomplice arising out of the felonious manufacture of methamphetamine.  Accordingly, we will deny the petition.

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

Under California’s second degree felony-murder law, petitioner Gregory White’s guilt depended upon an abstract legal issue that had nothing to do with his actions.  The trial court had to adjudicate whether California’s offense of manufacturing methamphetamine — in general, not in White’s case in particular — was “inherently dangerous to human life” such that it qualified as a felony murder predicate.  If so, the fact that White’s co-conspirator died from burns incurred during the manufacture meant White was guilty of not just the drug crime, but of murdering his accomplice.

Had our Legislature listed methamphetamine manufacture among the crimes that can serve as a predicate for first degree felony murder, White would be guilty of murder with no claim that the crime of conviction was unconstitutionally vague.  The Legislature would have provided notice to the public and adequately guided the courts.  But there is no statutory list of predicate crimes for second degree felony murder.  A defendant such as White may find out whether his crime qualifies after he committed it, when a court determines whether the crime, taken in the abstract, fits the amorphous inherent-dangerousness-to-life standard....

I conclude that under Johnson, California’s second degree felony-murder law is unconstitutionally vague because it requires courts to assess the hypothetical risk posed by an abstract generic version of the offense.

May 12, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Tuesday, May 07, 2019

Prez Trump gets back in clemency business by granting full pardon to US veteran convicted of killing Iraqi prisoner

As reported in this AP piece, "President Donald Trump has pardoned a former U.S. soldier convicted in 2009 of killing an Iraqi prisoner, the White House announced Monday." Here is more:

Trump signed an executive grant of clemency, a full pardon, for former Army 1st Lt. Michael Behenna, of Oklahoma, press secretary Sarah Sanders said. Behenna was convicted of unpremeditated murder in a combat zone after killing a suspected al-Qaida terrorist in Iraq.  He was paroled in 2014 and had been scheduled to remain on parole until 2024.

A military court had sentenced Behenna to 25 years in prison.  However, the Army's highest appellate court noted concern about how the trial court had handled Behenna's claim of self-defense, Sanders said.  The Army Clemency and Parole Board also reduced his sentence to 15 years and paroled him as soon as he was eligible.

Behenna's case attracted broad support from the military, Oklahoma elected officials and the public, Sanders said.  She added that Behenna was a model prisoner while serving his sentence, and "in light of these facts, Mr. Behenna is entirely deserving" of the pardon.  Oklahoma’s two Republican senators, James Lankford and Jim Inhofe, hailed the pardon, thanking Trump for giving Behenna “a clean slate.”

Behenna acknowledged during his trial that instead of taking the prisoner home as he was ordered, he took the man to a railroad culvert, stripped him, and then questioned him at gunpoint about a roadside bombing that had killed two members of Behenna's platoon. Behenna, a native of the Oklahoma City suburb of Edmond, said the man moved toward him and he shot him because Behenna thought he would try to take his gun.

Oklahoma’s attorney general first requested a pardon for Behenna in February 2018 and renewed his request last month. Attorney General Mike Hunter said he believed Behenna’s conviction was unjustified because of erroneous jury instructions and the failure of prosecutors to turn over evidence supporting a self-defense claim.

May 7, 2019 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, May 04, 2019

Florida legislature passes it own first (very baby) step act on criminal justice reform

This local article out of Florida, headlined "Legislature OKs criminal justice reforms but no change to mandatory-minimum sentencing," reports on how the Sunshine State is starting to move forward on reform inspired clearly by the federal FIRST STEP Act. But, as the article explains, political challenges have resulted in Florida's first step being even more limited that what has been achieved at the federal level:

The Florida Legislature passed a 296-page criminal justice reform package bill Friday, the last full day of the session, addressing the issue of a bulging prison population that has long eluded resolution....

Reshaping Florida’s tough-on-crime policies and reducing the state’s nearly 100,000-person prison population is a rare issue that has united Trump populists and progressive civil rights groups, yet often results in open and closed-door fights among Republicans over how far to go.

This year, compromise was reached. The House passed the bill unanimously Friday, following the Senate’s near-unanimous passage on Thursday. The bill now heads to Gov. Ron DeSantis’ desk. Despite the victory for Republican Sen. Jeff Brandes of St. Petersburg, who’s long been a leading voice in the Legislature for the need for criminal justice reform, the bill’s passage was bittersweet.

“I am incredibly disappointed,” he said Thursday, referring to several big-ticket reform pieces that were taken out of the bill at the behest of the House. “I’m not surprised we didn’t get there, but I think what we did was advance the conversation.”

House Bill 7125 is the result of private negotiations between the two chambers over the past week and contains many changes proposed by those seeking to reshape Florida’s tough-on-crime laws from the 1990s. That includes making it easier for felons to get professional licenses and allowing state attorneys to decide whether juvenile cases should be transferred to adult court. Currently, that happens automatically if the crime is severe or the child has certain prior convictions.

It also would raise the “threshold” dollar amount at which theft charges go from a misdemeanor to a felony, from $300 to $750. That’s not as high as the House’s original proposal, which was to raise it to $1,000, but it brings Florida’s law closer to the national average. It also eliminates or reduces driver’s license suspensions as a criminal penalty, which lawmakers have said unfairly hampered people’s ability to get to their jobs and continue to make an honest living.

The bill has been dubbed the “Florida First Step Act” after the federal reform law with the same name. Shortly after the bill passed the House, Kara Gross, the legislative director for the American Civil Liberties Union of Florida, said the bill amounted to “a baby step, at best.”...

What didn’t make the cut of the final bill:

▪ Allowing judges discretion over sentences for certain drug crimes that currently have required amounts of time that defendants must serve, called “mandatory minimum” sentences.

▪ Permitting prison inmates convicted of nonviolent felonies to be released after serving a minimum 65 percent of their sentence if they have good behavior and participate in educational and rehabilitative programs (current law is 85 percent).

▪ Retroactive re-sentencing for people who were convicted of aggravated assault back when the state’s punishment for that crime was harsher than it is now.

Email messages between House and Senate staff obtained by the Herald/Times show that the House had, at one point last week, been “comfortable” with modified language related to giving judges more discretion over sentences for nonviolent drug crimes, reducing the length of some sentences. But that didn’t make it into the final bill....

Despite some lukewarm support for giving judges more sentencing discretion, Gov. Ron DeSantis poured cold water on the idea of letting inmates out after serving 65 percent of their sentence, likely one of the reasons that piece was scrapped....

The bill passed with only one “no” vote in the Senate, which came from Sen. Randolph Bracy, D-Orlando, who praised Brandes’ efforts but said that he, too, was frustrated with the compromise. “Honestly, I’m tired of submitting to the will of the House on these types of issues,” he said.

Still, the willingness of the House, traditionally the more tough-on-crime chamber, to cobble together a criminal justice reform package of this size shows a shift of tone, however subtle, toward reducing Florida’s burgeoning prison population.

Friday’s bill also creates a task force to reevaluate Florida’s entire criminal punishment code, and whether the set punishments fit the crime. House Speaker José Oliva said that this bill is the result of several years of discussion on this issue. Lawmakers in both the House and Senate have said they intend on taking up some of the issues that failed next year. “Sometimes ideas take time for people to understand and to have a chance to really let set in. For a lot of years the idea was being tough on crime,” Oliva said recently. He added, though, that data showing the harms of these policies “started a conversation. I think that conversation is now maturing.”

I am sorry to see that Florida is not moving forward on bolder reforms, but there is still good reason to celebrate reform efforts finding expression in this historically tough state.  Given that it took a full 40 years to ramp up incarceration level to historical levels, nobody should expect changes in the forces and laws developed in the tough era to happen quickly or without lots of fits and starts.

May 4, 2019 in Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, May 02, 2019

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Friday, April 26, 2019

"Individualized Sentencing"

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

In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences.  One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.”  The Court’s reasoning in both cases centered on the seriousness of the death penalty.  Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence.

In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama.  Specifically, the Court held that juvenile offenders also were unique — in their capacity for rehabilitation and their diminished culpability — such that they too deserved individualized sentencing determinations.  The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases.

Felony convictions, however, are serious too.  The current consequences for a felony conviction in most states result in dehumanizing effects that extend far beyond release including loss of right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma.  As such, this Article argues for an extension of the Court’s Eighth Amendment individualized sentencing principle to all felony cases.  Doing so would require the Court to overrule its prior decisions, including Harmelin v. Michigan, but the Court’s opinion in Miller hints at a willingness to do just that.

While initially valuable in ensuring that capital cases received heightened scrutiny, the unintentional consequence of the Court’s differentness principle is that non-capital cases have received almost no constitutional scrutiny.  The individualized sentencing determination requirement provides one simple way to begin to remedy this shortcoming.

Adopting this doctrinal extension would have three major consequences: (1) it would provide each defendant his day in court in the face of serious, lifelong deprivations, (2) it would eliminate draconian mandatory sentencing practices, and (3) it would shift the sentencing determination away from prosecutors back to judges.

Part I of the Article describes the evolution of the individualized sentencing doctrine.  Part II exposes the unintended consequences of the differentness concept, and unearths the theoretical principles behind individualized sentencing.  In Part III, the Article argues for the expansion of the current doctrine and explains why the current roadblocks are not insurmountable.  Part IV then explores the consequences of broadening the application of the individualized sentencing doctrine, for defendants, legislators, and judges alike.

April 26, 2019 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, April 21, 2019

"Misdemeanors by the Numbers"

The title of this post is the title of this notable new article now available via SSRN authored by Sandra Mayson and Megan Stevenson.  Here is its abstract:

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue.  But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research.  This Article represents the most substantial empirical analysis of misdemeanor case processing to date.  Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

The resulting portrait reveals a system that disproportionately impacts poor people and people of color.  Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction.  There were substantial racial disparities in case-filing rates across locales and offense categories.  The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted.  The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice.  At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice.  As appreciation for the significance of low-level law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

April 21, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (5)

Monday, April 15, 2019

Fascinating map and data highlighting prevalence and intensity of marijuana's criminal enforcement footprint

MIUJRLKJWJFCFOZTWYLD2U6JUI.pngOver at the Washington Post, Christopher Ingraham has this great new piece fully titled "Where the war on weed still rages: In some U.S. counties, more than 40 percent of all arrests are for marijuana possession." The title highlights the piece's themes, but the text and a map therein reinforce the point in various ways:

Marijuana possession led to nearly 6 percent of all arrests in the United States in 2017, FBI data shows, underscoring the level of policing dedicated to containing behavior that’s legal in 10 states and the nation’s capital.

But the figure obscures the considerable variations in enforcement practices at the state and local levels.  In many areas of the country in 2016, more than 20 percent of all arrests stemmed from pot possession, according to newly released county-level arrest figures from the National Archive of Criminal Justice Data.  The figure exceeds 40 percent in a handful of counties, topping out at nearly 55 percent in one Georgia county.

The data tracks arrests, not individuals, so there’s no mechanism for winnowing out repeat offenders.  Nor does it include arrests for the sale or production of marijuana. But the numbers still illustrate how marijuana enforcement continues to make up a big part of many police agencies’ caseloads.

The findings reflect, in part, a few simple realities: The federal government incentivizes aggressive drug enforcement via funding for drug task forces and generous forfeiture rules that allow agencies to keep cash and other valuables they find in the course of a drug bust.  And because marijuana is bulky and pungent relative to other drugs, it’s often easy for police to root out.

But given that recreational marijuana is legal throughout the West, and that two-thirds of the public supports legalization, critics view such aggressive enforcement tactics as wasteful, ineffective and even racially biased....

Nationwide, a few clear patterns emerge in the county-level arrest statistics from 2016, the latest year for which data is available.  A swath of mostly conservative states, running from North Dakota through Texas, is home to many counties where marijuana enforcement accounts for 10 percent or more of all arrests — well above the national average.

But those conservative states are by no means alone.  On the East Coast, New York and New Jersey stand out for relatively high arrest rates for marijuana possession. In New England, New Hampshire — the “Live free or die” state — also shows a high number of arrests relative to its neighbors.

States that have legalized marijuana, on the other hand, tend to have lower arrest rates. Colorado and Washington, where recreational use had been legal for two years at the time the data was taken, few counties attributed more than 2.5 percent of their arrests to marijuana enforcement.  Not a single county in California, which legalized the drug in 2016, met that threshold. Alabama and Kentucky — which are not known for liberal marijuana policies — also appeared to place a low priority on marijuana possession enforcement.

The data shows that Dooley County, Ga., has the highest rate of marijuana arrests in the nation. Out of 422 total arrests in 2016, 230, or 54.5 percent, were for marijuana possession.  The next highest was Hamilton County in New York’s Adirondack Mountains, where 43.5 percent of the 130 arrests logged in 2016 targeted marijuana offenders. That’s followed by Sterling (42.1) and Hartley (42.0) counties in Texas, with South Dakota’s Edmunds County (33.3 percent) rounding out the top five.

While these counties are all small and rural, some larger counties in and around big cities also reported unusually high arrest rates. In Chesapeake, Va., (population 233,000), for instance, 23 percent of its nearly 3,600 arrests were for marijuana possession. In Maryland’s Montgomery County (population 1 million), just outside of Washington, D.C., about 20 percent of its 24,000 arrests were for pot....

Another notable component of the study is what’s missing. Individual police agencies share arrest statistics with the FBI as part of its Uniform Crime Reporting Program.  But participation is voluntary, and different states use different systems to report crime and arrest data, which means that some jurisdictions have more complete coverage than others.  The map above omits all jurisdictions where the reporting rate is less than 90 percent, which eliminates large parts of some states and removes others, like Illinois and Florida, completely.

Not all marijuana arrests lead to convictions or prison time. But an arrest can be highly disruptive in and of itself: Legal fees, bail and bond costs, time lost from work and the potential for pretrial detention can take a heavy toll on arrested individuals.  In a number of cases, suspects have been inadvertently or deliberately killed while in police custody for possessing small quantities of pot.  In one recent high-profile case, a Pennsylvania man was crushed by a bulldozer as he fled from police attempting to apprehend him over 10 marijuana plants — a quantity that is legal in other parts of the country.

Cross-posted at Marijuana Law, Policy and Reform.

April 15, 2019 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (0)

Saturday, April 13, 2019

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

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

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

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

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

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

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

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

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

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

Wednesday, April 10, 2019

"Vague Comparisons and Proportional Sentencing"

The title of this post is the title of this new theoretical paper authored by Jacob Bronsther now on SSRN.  Here is its abstract:

The “small improvement problem” (“the Problem”) applies when no option in a comparison is best nor, it seems, are the options equal, because a small improvement to one would fail to make it the better choice.  I argue that vagueness causes the Problem, such that the options are vaguely equal or vaguely “related.” I then unpack an important instance of the Problem, the comparison between a crime and a punishment upon which the ideal of a retributively deserved sentence is based.  I argue that this comparison is not only vague, but remarkably vague, leading to an expansive array of “not undeserved” sentences.  I conclude, however, that retributivism can only justify the least harmful “not undeserved” sentence.

April 10, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, April 09, 2019

"Who Belongs in Prison?"

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

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

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

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

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

Monday, April 08, 2019

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

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

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

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

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

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

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

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

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

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

"Declining Corporate Prosecutions"

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

Ten years ago, people across the U.S. protested that “too big to jail” banks were not held accountable after the financial crisis.  Little has changed.  Two years into the Trump Administration, newly collected data allows one to assess what impact a series of new policies have had on corporate enforcement.  To provide a snapshot comparison, in its last 20 months, the Obama Administration levied $14.15 billion in total corporate penalties — with 71 financial institutions and 34 public companies prosecuted.  During the Trump Administration, corporate penalties declined.  During its first 20 months, there were $3.4 billion in total penalties, with 17 financial institutions and 13 public companies prosecuted. These trends build over time — in each year, blockbuster cases come and go, creating swings in fines.  However, consistent with these data, this Article describes changes in written policy, practice, and informal statements from the Department of Justice that have cumulatively softened the federal approach to corporate criminals.

This Article also describes continuity between administrations.  A rise in corporate declinations, for example, represents a continuation of Obama Administration policy.  A decline in use of corporate monitors similarly reflects prior policy.  The steady and low level of individual charging in corporate cases, reflects an ongoing lack of success of efforts to prioritize individual prosecutions, exemplified by the 2015 “Yates Memo.”  That policy, like others, has now been formally relaxed.  This series of DOJ corporate prosecution policy changes have been accompanied by important institutional shifts.  For example, high-level vacancies within the DOJ and other enforcement agencies may compromise ability to coordinate resolution of complex cases. 

This Article concludes by proposing structural changes, such as an independent corporate enforcement functions, to enhance capacity and prevent pendulum shifts in the administration of enforcement.  How we handle corporate crime goes to the root of power imbalance in the economy that produced the financial crisis.  Ten years gone, if we still have not learned the lessons of the last financial crisis, then the next one cannot be far ahead.

April 8, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, April 07, 2019

"Third-Class Citizenship: The Escalating Legal Consequences of Committing a 'Violent' Crime"

The title of this post is the title of this notable new article authored by Michael M. O'Hear now available via SSRN. Here is its abstract:

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.”  These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community.  The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served.  A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.”  While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous — pushing the person into a veritable third-class citizenship.

This article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction.  The article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime.  While the article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society.

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

Thursday, April 04, 2019

"When 'Violent Offenders' Commit Nonviolent Crimes"

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 02, 2019

"The Next Step: Ending Excessive Punishment for Violent Crimes"

The title of this post is the title of this notable new report written by Nazgol Ghandnoosh, Senior Research Analyst at The Sentencing Project.  Here is its executive summary:

While the First Step Act and other criminal justice reforms have limited the number of people imprisoned for drug crimes, they have yet to meaningfully reduce excessive penalties for violent crimes.  Nearly half of the U.S. prison population is now serving time for a violent offense, including assault and robbery.

Although the violent crime rate has plummeted to half of its early-1990s level, the number of people imprisoned for a violent offense grew until 2009, and has since declined by just 3%.  This trend stems from increased prison admissions and sentence lengths, despite evidence that excessive penalties are counterproductive.  Long sentences incapacitate older people who pose little public safety threat, produce limited deterrent effect since most people do not expect to be caught, and detract from more effective investments in public safety.

For those who seek to end mass incarceration, there are signs of hope.  In the past two decades, local, state, and federal lawmakers, governors, judges, and practitioners have rejected the death penalty, shortened excessive prison terms for violent convictions, scaled back collateral consequences, narrowed broad definitions of violence, and ended long term solitary confinement.  The 15 reforms featured in this report, implemented in over 19 states, represent more effective, fiscally sound, and morally just responses to violence.  While exceptions in a punitive era, these reforms serve as models for the future.  For example:

Rejecting torture in prison

In 2017, Colorado Department of Corrections’ executive director Rick Raemisch restricted solitary confinement to only serious violations in prisons and set a maximum duration of 15 days.

Using discretion to reduce extreme sentences

Philadelphia District Attorney Larry Krasner seeks to end the city’s heavy reliance on life without parole (LWOP) sentences.  He has made case-by-case evaluations when making resentencing offers to individuals convicted as juveniles, shown restraint in charging decisions and plea offers in homicide cases, and endorsed legislation to allow people serving LWOP to be evaluated for parole after 15 years of incarceration.

Legislators reducing excessive sentences

Mississippi legislators reformed the state’s truth-insentencing requirement for violent crimes in 2014, reducing the proportion of a sentence that individuals with certain violent convictions have to serve before becoming eligible for parole from 85% to 50%.

Recognizing the rehabilitative potential of youth and young adults

In 2010, the Supreme Court ruled that LWOP sentences were unconstitutional for non-homicide crimes committed by juveniles. The Court also later ruled that mandatory LWOP sentences for homicide failed to recognize young people’s “diminished culpability and greater prospects for reform.”  In 2018, California built on this precedent by directing individuals convicted under age 26 to “Youth Offender Parole Hearings.”

Scaling back collateral consequences

Floridians voted in 2018 to re-enfranchise people with felony convictions, including those convicted of most violent crimes.

The reforms identified in this report demonstrate that it is possible to undo excessive penalties for violent crimes while also promoting public safety. They are the next step of criminal justice reform and offer blueprints for policies that will better enable an end to mass incarceration within our lifetime.

April 2, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, March 28, 2019

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

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

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

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

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

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

Tuesday, March 19, 2019

"Mass Incarceration: The Whole Pie 2019"

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

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

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

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

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

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

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

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

"Misdemeanor Appeals"

The title of this post is the title of this notable new empirical article authored by Nancy King and Michael Heise. Here is its abstract:

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one.  Yet very little empirical information exists on many aspects of misdemeanor prosecutions.  This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide.  It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in 10,000 misdemeanor convictions, and disturb only one conviction or sentence out of every 10,000 misdemeanor judgments.  This level of oversight is much lower than that for felony cases, for reasons we explain.  To develop law and regulate error in misdemeanor cases, particularly in prosecutions for the lowest-level offenses, courts may need to provide mechanisms for judicial scrutiny outside the direct appeal process.

Additional findings include new information about the rate of felony trial court review of lower court misdemeanor cases, ratios of appeals to convictions for various misdemeanor-crime categories, detailed descriptive information about misdemeanor cases that reach state appellate courts, the results of a complete statistical analysis examining which features are significantly associated with a greater or lesser likelihood of success, including crime type, claim raised, judicial-selection method, and type of representation, and the first quantitative look at how misdemeanor appeals differ from felony appeals.

March 19, 2019 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, March 13, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Monday, March 11, 2019

New indictment exposes underbelly of federal RDAP program ... and provides still more reason to be thankful for passage of FIRST STEP Act

This interesting new AP piece, headlined "Show up drunk: Indictments spotlight prison rehab scams," reports on indictments surrounding efforts to defraud the only long-standing federal prison program thathas  allowed prisoners to earn reductions in their rehabilitative efforts.  Here are the details:

It's a tip that has been passed onto convicts for years: On your way to federal prison, say you have a substance abuse problem, and you could qualify for a treatment program that knocks up to a year off your sentence.

Federal prosecutors have long suspected abuses in the program, which has enrolled a deep list of high-profile convicts.  Recently, a grand jury in Connecticut indicted three people accused of coaching ineligible convicts on how to get into the Residential Drug Abuse Program, or RDAP, by telling them to show up to prison intoxicated and fake withdrawal symptoms. The charges are among the first filed against prison consultants involving the program.

The case has put a spotlight on the unregulated world of prison consulting, in which some ex-convicts and former prison employees charge thousands of dollars for their inside knowledge to help people prepare for life behind bars. Some consultants say there has been wrongdoing in the industry for decades, including encouraging clients to scam their way into the rehab program.

The small industry now is "totally the Wild West," said Jack Donson, president of New York-based My Federal Prison Consultant and a retired federal Bureau of Prisons employee. "I hope it brings light to things," he said, referring to the Connecticut case.  "I hope it gives people ... pause to not cross that line to illegality and unethical conduct."

Completing the nine-month, 500-hour treatment program for nonviolent offenders is one of only a few ways inmates can get their sentences reduced. About 15,600 inmates — nearly 10 percent of the current federal prison population — participated in the program last year, and thousands more are on waiting lists. To get in, convicts must present evidence they had substance abuse or addiction problems during the year prior to their arrest. Upon completion, their sentences can be reduced and they can spend the last six months of their sentences in a halfway house.

Christopher Mattei, a former federal prosecutor in Connecticut, said the U.S. attorney's office increasingly saw white-collar convicts make use of the program. "It undermines the public's confidence that all people when they go before a court for sentencing will be treated fairly.  People who know how to game the system know how to get the benefits, whereas people who are struggling with addiction don't know all the angles to play," said Mattei, former chief of the financial fraud and public corruption unit in the Connecticut U.S. attorney's office....

The criminal indictments in Connecticut are believed to be among the first criminal charges filed against prison consultants in connection with the treatment program. Arrested were Michigan residents Tony Pham, 49, and Samuel Copenhaver, 47, both of Grand Rapids; and Constance Moerland, 33, of Hudsonville.  The three were managing partners in RDAP Law Consultants, authorities said.

Prosecutors said the three told clients over the past six years to falsely inform Bureau of Prisons officials that they had drug and alcohol problems, taught them how to fake withdrawal symptoms and how to fraudulently obtain medication to treat withdrawal symptoms, so they could show prescriptions to qualify for the program. The partners also told their clients to begin drinking alcohol daily before going to prison and to show up drunk, the indictments said....

Last year in New York City, a lawyer and three other people were charged with defrauding the government and making false statements. They allegedly submitted bogus information to prison officials, claiming that a convicted drug dealer had a history of addiction, in an effort to get the client into the drug treatment program so he could be released early. The case remains pending.

Other consultants coach people on how to lie to get into the program, according to Donson, who said some also claim they can get convicts sent to prisons that have the RDAP program when only federal prison officials have that authority. He said he sees potential for fraud also as consultants rush to offer help related to a new law that allows federal prisoners sentenced for crack cocaine offenses before late 2010 the opportunity to petition for a lighter penalty.

Donson and other consultants say more monitoring of the industry and prosecutions would help deter misconduct. "It's an unregulated industry, so something like this hopefully brings some attention to it," said Dan Wise, an ex-con who completed the RDAP program and now runs a prison consultant business based in Spokane, Washington.

I think it important for the feds to appropriately police the RDAP program to ensure defendants who are truly struggling with addiction are able to access a program with finite resources. But this article fails to highlight that defendants' efforts to sneak into the RDAP program was a symptom of a broader disease, namely that federal prisoners have historically had precious few means to seek to earn reductions in their sentences. Thankfully, the FIRST STEP Act is a significant step toward treating this disease, as it provides an elaborate set of mechanisms for allow some prisoners to earn reductions through other rehabilitative efforts. But, critically, the FIRST STEP Act has a number of problematic exclusions and restrictions on which prisoners can earn reductions AND there is reason to worry that poor implementation of the FIRST STEP could lead to privileged prisoners again being better able to access programming and reduction that should be made properly available to as many prisoners as possible.

Without know more about the indictments and underlying facts referenced in this AP article, I am disinclined to comment directly on whether federal prosecution of prison consultants may be the most efficient and effective way to police the administration of prison programming. But I am eager to encourage everyone involved in counseling defendant and prisoners to be honest and straight-forward in their dealing or else prisoners and their families are likely to be the ultimate victims.

March 11, 2019 in FIRST STEP Act and its implementation, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Sunday, March 10, 2019

Rounding up some of many thoughts about Paul Manafort's (first) federal sentence

Lots of folks have had lots and lots to say about Paul Manafort's first federal sentence of 47 months in prison (basics here).  I am disinclined to make any definitive assessment of whether I think justice has been served in this matter until we see the results of his first federal sentencing later this week.  In the meantime, however, I am happy to share a sampling of just some of the copious commentary from notable folks about Manafort's fate to date:

From (former federal prosecutor) Frank Bowman, "The (first) Manafort sentencing"

From (former federal judge) Nancy Gertner, "US sentencing needs reform, but Manafort's 47 months was a strange one"

From (former federal prosecutor) Elie Honig, "A shockingly lenient sentence for Paul Manafort"

From (current defense attorney) David Oscar Markus, "Four years for Paul Manafort is the right sentence"

From (current defense attorney) Rachel Marshall, "I’m a public defender. My clients get none of the sympathy Manafort did."

From (former federal prosecutor) Renato Mariotti, "Racial Bias Doesn’t Fully Explain Manafort’s Sentence. It’s Unchecked Judges."

From (former federal prosecutor) Ken White, "6 Reasons Paul Manafort Got Off So Lightly"

March 10, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (4)

Kansas doctor gets federal LWOP sentence for abusive opioid prescribing

In the wake of Paul Manafort's sentencing, lots of folks are complaining about privileged white defendants getting a different kind of justice than others.  But this federal sentencing story from Kansas, headlined "Wichita doctor who sold pain-med prescriptions for cash sentenced to life in prison," reveals that, in some cases, even some privileged white defendant will be subject to the most severe sentences possible. Here are the details:

A Wichita doctor who illegally distributed addictive prescription drugs has been sentenced to life in federal prison.

Judge J. Thomas Marten said it is “quite clear” that Dr. Steven R. Henson, 57, wrote multiple prescriptions without a legitimate medical purpose and “abused his position of trust as a licensed physician.”

“I have sentenced people to life before,” Marten said in court Friday. “They were people who took guns and shot people.”

The investigation began after a pharmacist raised concerns that a doctor was over-prescribing controlled pain medications. One man died from an overdose after getting a prescription from the doctor.

“I want this case to send a message to physicians and the health care community,” U.S. Attorney Stephen McAllister said in a statement. “Unlawfully distributing opioids and other controlled substances is a federal crime that could end a medical career and send an offender to prison. We are dealing with an epidemic. Nationwide, more than 70,000 Americans died in 2017 from drug overdoses. That is more than all the American casualties during the war in Vietnam.”

Nicholas “Nick” McGovern died in July 2015 after overdosing on a mix of alprazolam and methadone prescribed to him by Henson. It was the count relating to McGovern’s death on which Henson was sentenced to life in prison....

Defense attorney Michael Thompson contended during sentencing that Henson wasn’t writing the prescriptions “to make easy money on the side” because he didn’t need to. He said that the doctor “tried to do what he thought was best for his patients.”

“I only had one goal in life as a physician,” Henson said, “and that was to take excellent care of patients and to increase their functionality,” adding that he tried to serve the under-served in the community and worldwide through mission trips.

But the judge cited Henson’s own testimony during the trial that he raised his fee from $50 to $300 to help pay rent on his medical office.

Federal investigators discovered that Henson would give pain-med prescriptions to patients for $300 in cash at a time, with few questions asked. The investigation began in 2014 with a pharmacist’s concern that a doctor was over-prescribing controlled medications. Prosecutors said Henson falsified patient records during the federal investigation in addition to obstructing investigators....

Henson was found guilty in October of two counts of conspiracy to distribute prescription drugs outside the course of medical practice; 13 counts of unlawfully distributing oxycodone; unlawfully distributing oxycodone, methadone and alprazolam; unlawfully distributing methadone and alprazolam, the use of which resulted in the death of a victim; presenting false patient records to investigators; obstruction of justice; and six counts of money laundering....

Defense attorneys asked for a 20-year prison sentence, saying that Henson led a “model life” outside of this case. “Maybe he wasn’t the best physician,” his attorney said. “He made some very serious mistakes. He wrote these prescriptions not out of greed, malice or ill intent. He was trying to help his patients. That was his goal.”

The judge said he had only met three or four people who he thought were “filled with evil and beyond redemption.”

“In some respects, what I’ve seen from you is worse, in that you don’t seem to understand,” Marten said. “I really don’t think that you get it. I think that in some respects you were numb to what you were doing over time. ... I just wonder if your practices have had any impact on you. It seems as if you’re still thinking, ‘Why am I here, what did I do wrong?’”

Just based on this news report, I think this case could probably sustain a whole book highlighting how this sentencing intersects with our modern opioid and overdose crisis and the broader debates over mass incarceration and equity and the trial penalty in sentencing.

March 10, 2019 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Saturday, March 02, 2019

"Mitigations: The Forgotten Side of the Proportionality Principle"

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

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment.  Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment.  Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the resistance and subversion that is provoked by perceived violations of blameworthiness proportionality.

Such a principle has been commonly used as the basis for criticizing improper aggravations, such as the doctrines of felony murder and “three strikes,” but the principle also logically requires recognizing a full range of deserved mitigations, not as a matter of grace or forgiveness but as a matter of entitlement.  And given ordinary people’s nuanced judgments about blameworthiness proportionality, maintaining moral credibility with the community requires that the criminal law adopt an equally nuanced system of mitigations.

Such a nuanced system ideally would include reform of a wide variety of current law doctrines as well as, especially in the absence of such specific reforms, adoption of a general mitigation provision that aims for blameworthiness proportionality in all cases.  Such a general mitigation ought not be limited to cases of “heat of passion” or limited to cases of murder, as today’s liability rules commonly provide.  It ought to be available whenever the offense circumstances and the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness, as long as giving the mitigation does not specially undermine community norms.

March 2, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, February 26, 2019

FBI reports on encouraging crime data from the first half of 2018

This FBI press release, titled "Preliminary Semiannual Crime Statistics for 2018 Released; Report Shows Overall Crime Declined in First Half of Last Year," provides heartening news about recent crime trends.  Here are the basics from the release:

Preliminary statistics show declines in both violent crime and property crime in the first half of 2018 when compared to statistics from the first half of the previous year, according to the FBI’s Preliminary Semiannual Uniform Crime Report, released today.

The report contains data from more than 14,000 law enforcement agencies nationwide that voluntarily submitted crime data to the Uniform Crime Reporting (UCR) Program. The report showed nearly all offenses in the violent crime category declined. Robbery offenses decreased 12.5 percent, murder and nonnegligent manslaughter offenses decreased 6.7 percent, and aggravated assault offenses declined 2 percent.  Rape (revised definition), however, increased 0.6 percent.

When comparing data from the first six months of 2018 with the first six months of 2017, all property crime categories showed a decrease. Burglaries were down 12.7 percent, larceny-thefts decreased 6.3 percent, and motor vehicle thefts declined 3.3 percent.

The full Crime in the United States, 2018 report will be released later this year.

The data follow reports from last year that the first-half of 2017 crime data also reflected a decline in most categories of crime. This FBI table providing year-to-year trends of the last four years provides a little more context for this latest data.  It is especially encouraging to see violent crime move down significantly after increases in 2015 and 2016 and a small decline in 2017.  And the continued huge decline in property crime remains remarkable.

February 26, 2019 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Paul Manafort's sentencing memorandum in DC makes pitch for a sentence "significantly below" ten years

As reported in this Politico piece, counsel for "Paul Manafort, the former Trump campaign chairman, pleaded on Monday for a federal judge to spare their 69-year-old client from a sentence that would essentially send him to prison for the rest of his life."  Here is more about the latest sentencing filing:

In a 47-page filing, Manafort’s attorneys described a client who has been “personally, professionally, and financially” broken by special counsel Robert Mueller’s Russia investigation and who deserves a sentence “significantly” below the statutory maximum of 10 years he faces after pleading guilty in Washington to a pair of conspiracy charges.

“Mr. Manafort has been personally and financially devestated [sic] as a result of his conduct and the forfeiture he has agreed to,” his lawyers wrote. “There is no reason to believe that a sentence of years in prison is necessary to prevent him from committing further crimes.”

Manafort’s lawyers added that he “poses no risk to the public, which itself has certainly been generally deterred from engaging in similar conduct based on the widespread negative publicity this case has garnered, as well as his incarceration in solitary confinement.”

Two federal judges are scheduled to sentence Manafort twice next month over criminal charges brought by Mueller’s office, including tax and bank fraud, as well as witness tampering and unregistered lobbying for a foreign government. U.S. District Court Judge T.S. Ellis III is scheduled first in Virginia, on March 8, and U.S. District Court Judge Amy Berman Jackson in Washington goes second, on March 13.

The memo that Manafort’s attorneys submitted Monday aims to rebut Saturday’s filing from Mueller, who told Jackson that the longtime Republican operative “repeatedly and brazenly violated the law” for more than a decade and should be considered for a total sentence in the roughly 17-to-22-year range by stacking her sentence on top of the one Ellis issues.

The full filing is available at this link, and here is an excerpt from its introduction:

Mr. Manafort, who over the decades has served four U.S. presidents and has no prior criminal history, is presented to this Court by the government as a hardened criminal who “brazenly” violated the law and deserves no mercy.  But this case is not about murder, drug cartels, organized crime, the Madoff Ponzi scheme or the collapse of Enron.  Rather, at its core, the charges against the defendant stem from one operable set of facts: Mr. Manafort made a substantial amount of income working as a political consultant in Ukraine, he failed to report to the government the source and total amount of income he made from those activities, and he attempted to conceal his actions from the authorities. He has accepted full responsibility by pleading guilty to this conduct....

Mr. Manafort has been punished substantially, including the forfeiture of most of his assets. In light of his age and health concerns, a significant additional period of incarceration will likely amount to a life sentence for a first time offender.

Some prior related posts:

February 26, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Monday, February 25, 2019

Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?

Tomorrow the Supreme Court has a day of sentencing arguments scheduled, as the Justices will from counsel in United States v. Haymond and Mont v. United States.  Here are the questions presented and argument previews via SCOTUSblog:

United States v. Haymond Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

Mont v. United States Issue: Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

For hard-core sentencing fans, the Haymond case could be the sleeper of the Term because a major ruling on constitutionally required procedures for revocation of supervised release could have profound implications not only for the federal system, but also potentially for some state systems. 

I doubt that oral argument will provide any big indication of just how big a ruling Haymond could produce, but I will be particular eager to see what the newer Justices might have to say about the kind of judicial factfinding that landed Andre Haymond back in prison for a (mandatory) five years after a judge found by only a "preponderance of the evidence" that he had violated the terms of his supervised release.  I think serious originalists should be troubled by the kinds of procedures used to deprive Haymond of his liberty, but the modern tradition of lax procedures at the "back-end" of sentencing systems is considerable.  I am hoping a number of Justices might take big swings with their questions in Haymond, but lately I am thinking I should not be expecting too much from the Justices.

Some prior related posts:

February 25, 2019 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Making the conceptual and statistical case for going well beyond the FIRST STEP Act

UZU3HWQVUVE2JH5FXAH56P5MMMKeith Humphreys has this notable new Washington Post piece headlined "The new criminal justice law will modestly shrink prison populations. Should we go further?".   The piece has an important little chart that speaks interestingly to the reality of federal prison populations,and I recommend this piece in full.  Here are excerpts:

The recently enacted First Step Act reduces criminal sentences and promotes rehabilitative programs within the federal justice system. Combined with earlier reforms implemented during the Obama administration, the law should return the federal imprisonment rate back to what it was a generation ago.  But that would still leave the federal prison system with about seven times as many inmates as it had in 1980.  Could the United States ever return to a federal prison population that small, or would that unleash a horrific crime wave?

Questions about how big or small the federal prison system should be are part of the ongoing debate about mass incarceration. But they also have a unique dimension because even though the Constitution assigns most law enforcement powers to states, the federal role in prosecution and incarceration expanded in recent decades (e.g., to include many white-collar crimes, carjacking, DVD piracy, street-corner drug dealing).  As a result, the federal prison system went from accounting for only 7.4 percent of all imprisonment in 1980 to 12.6 percent of all imprisonment in 2016.  Even a decade before the federal prison system reached its peak size, a bipartisan American Bar Association task force argued that the expansion of federal law enforcement and corrections were “inconsistent with the traditional notion that prevention of crime and law enforcement in this country are basically state functions.”

Sometimes it is helpful in public policy to ask questions about first principles: Why should the federal government ever imprison anyone at all?  A common fear — which some opponents of the First Step Act stoked — is that the United States would be overwhelmed with violent crime if not for federal law enforcement and incarceration.  In reality, virtually every murder, rape, assault and battery is charged under state law and results in imprisonment at the state or local level.  The federal prison system holds only 1.8 percent of U.S. inmates serving time for violent crimes.

Federal law enforcement and imprisonment thus do not serve as the nation’s primary bulwark against violence.  But they are important in three defined contexts.

Combating state and local corruption....

Battling criminal organizations that overwhelm state and local law enforcement....

Punishing crimes specifically against the federal government....

All of the above types of crimes are destructive, and those who commit them and are sent to federal prison do not deserve our sympathy.  But it is implausible that the number of and deserved sentence length for such offenses are seven times greater than they were before the federal prison population exploded.  That reality, combined with the fact that the generational cutback in the size of the federal prison system has caused no evident problems, suggest the First Step Act should be considered just that — a first step.  The extremely broad coalition that supported the First Step Act can reasonably aim higher in its next round of proposed reform, returning the federal prison system to its traditional role as an important — but small — part of the U.S. correctional system.

February 25, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)