Friday, August 9, 2019

You be the Prez: would you grant a commutation to former Gov Blago?

Prez Trump has a distinctive and sometimes disturbing way of keeping policy and political stories interesting, and his use of the clemency power is no exception.  The latest developments on this front, which prompt the question in the title of this post, concern imprisoned former Illinios Gov Rod Blagojevich. Prez Trump has been talking up a possible commutation for some time, and this Politico article, headlined "Illinois Republicans urge Trump to keep Blagojevich in prison," has me suspecting that the Prez may not be prepared to "walk the walk" after talking the clemency talk.  Here are excerpts:  

Illinois’ delegation of House Republicans on Thursday urged President Donald Trump not to commute the sentence of Rod Blagojevich, the state’s former governor, after the president told reporters he was considering doing so. In a statement, Reps. Darin LaHood, John Shimkus, Adam Kinzinger, Rodney Davis and Mike Bost said that commuting Blagojevich’s sentence “sets a dangerous precedent and goes against the trust voters place in elected officials.”

“It’s important that we take a strong stand against pay-to-play politics, especially in Illinois where four of our last eight Governors have gone to federal prison for public corruption,” the congressmen wrote.

The state’s Republican delegation previously wrote to Trump in June 2018, also to oppose a presidential commutation of Blagojevich’s sentence. The Thursday statement renewed the call after Trump told reporters a day earlier that he felt Blagojevich’s seven years in prison had been enough.

“I thought he was treated unbelievably unfairly,” Trump said Wednesday. “He’s been in jail for seven years over a phone call where nothing happens.”

Blagojevich, a Democrat who served in the House before he was elected governor, was impeached and removed from office in 2009, and was later convicted on multiple charges of corruption, including trying to sell the U.S. Senate seat vacated by Barack Obama. During his trial, a recorded phone conversation revealed him saying: “I've got this thing, and it’s fucking golden. I’m just not giving it up for fucking nothing.” He was sentenced to 14 years in prison in a case that became a media frenzy. His family has tried multiple times to appeal the sentence.

Trump dismissed the phone call as “braggadocio” and nothing outside the norm of what has been said privately by several other elected officials.

On Thursday night, he tweeted that “many people” had asked him about commuting the sentence on account of its severity and that White House staff were looking into the matter. Prosecutors at the time of his trial argued that Blagojevich qualified for 30 years to life, but they recommended less time out of concern for his family.

As president, Obama declined to commute the sentence, and the Supreme Court declined to hear the case on more than one occasion. Trump, however, has raised the possibility of commutation in the past. In their 2018 letter opposing such a move, the Illinois Republicans — then including Peter Roskam and Randy Hultgren — said commuting the sentence would compromise trust in American democracy.

Notably, former Gov Blago has already served the equivalent of more than eight years of a federal prison sentence, which is considerably longer than the prior Gov George Ryan served for seemingly more extensive official misdeeds.  And I have a hard time seeing just how public safety (or "American democracy") is really served by his service of another half decade in federal prison. But, as the question in this post is meant to prompt, I am eager to hear others' thoughts on this matter.

August 9, 2019 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Bold effort by reform advocates to get federal Fair Chance Act enacted via defense bill

This piece from The Hill, headlined "Advocates ramp up pressure on criminal justice measure," explains how and why criminal justice reform advocates have a bold strategy to get additional federal reforms into law expeditiously.  Here are the interesting details:

A coalition of advocacy groups is ramping up pressure on lawmakers to include criminal justice legislation in a must-pass defense bill. The push comes as staffers and lawmakers are expected to informally start merging the House and Senate National Defense Authorization Acts (NDAAs) during the August recess.

The House-passed NDAA includes the Fair Chance Act, which prohibits the federal government and federal contractors from asking about a job applicant's criminal history before making a conditional offer of employment. The Senate's defense bill doesn't include the legislation.

Supporters are rolling out a new poll, obtained exclusively by The Hill ahead of its release, showing most Americans support the ideas behind the Fair Chance Act.

The poll — conducted by GOP polling firm Public Opinion Strategies on behalf of the Justice Action Network, a coalition of outside groups supporting the bill — found that 83 percent of voters say they would support a proposal that allows employers to conduct background checks "but not until after applicants have had a chance to share their skills and qualifications."...

"We've shown overwhelming public support, the administration has shown its support, and now we just need the Senate to include the amendment," said Holly Harris, the executive director of Justice Action Network. She added that she's "really hopeful that the leaders and those negotiating the bill will see both the policy value and the political value."...

The push to include the legislation in the NDAA comes as lawmakers are out of Washington until September. When they return, they'll have a packed floor schedule, including funding the government by Oct. 1 to prevent a second shutdown.

Jason Pye, the vice president of legislative affairs at FreedomWorks, noted that putting the criminal justice measure in the mammoth defense bill prevents it from having to compete with other items on the Senate's agenda. Senate Majority Leader Mitch McConnell (R-Ky.) is likely to prioritize nominations and appropriations when making decisions about the chamber's limited floor time in the fall. "The House could pass Fair Chance and send it over to the Senate and absent the White House saying 'hey McConnell, please take up this bill,' he's not going to do it," Pye said.

Neither the House nor Senate have named which senators will be on the conference committee that will ultimately sign off on the final version of the defense bill. In one potential hurdle to the Fair Chance Act, Sens. Rick Scott (R-Fla.) and Josh Hawley (R-Mo.) both asked to be recorded as "no" on the measure when it passed the Senate Homeland Security and Governmental Affairs Committee earlier this year. They are both members of the Armed Services Committee, making it possible that they end up on the NDAA conference committee.

The criminal justice bill comes after Congress passed long-stalled sentencing and prison reform legislation in late 2018. The bill had wide bipartisan support, but had stalled for years until President Trump threw his support behind it and publicly urged McConnell to give it a vote.

Rep. Doug Collins (R-Ga.), who is sponsoring the Fair Chance Act in the House along with Rep. Elijah Cummings (D-Md.), said he hopes the Fair Chance Act makes it into the NDAA. "The Fair Chance Act builds off the success of the First Step Act and goes one step further by helping rehabilitated men and women gain meaningful employment nationwide," he said. "This bill has the potential change lives and help communities everywhere by reducing recidivism and bringing hope to families from coast to coast.”

August 9, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, August 8, 2019

Lots of stories and commentary catching my eye as I am on the road

Blogging has been a bit lighter than usual for the first part of August because I am on the road for a last bit of summer fun before the new school year kicks into gear.  As a result, I have lacked time to blog about, but have today found some time to round up here, a a number of stories and commentaries that have caught my eye in recent days in my newsfeed:

From BuzzFeed News, "The Criminal Justice System Is Bad For Your Health, Warns New York City’s Health Department"

From The Crime Report, "The Redemption of Teen Killers: Why ‘Miller’s Children’ Deserved Their Second Chance"

From Forbes, "NAACP, ACLU And Allies Demand Congress Pass Marijuana Bill With Justice Focus"

From Governing, "America Has a Health-Care Crisis — in Prisons"

From The Hill, "Criminal justice reform should extend to student financial aid"

From the Los Angeles Times, "Once tough-on-crime prosecutors now push progressive reforms"

From the New York Times, “A Relentless Jailhouse Lawyer Propels a Case to the Supreme Court

From Reuters, "U.S. federal death penalty protocol faces fresh legal scrutiny"

From the San Francisco Chronicle, "First inmate released under new California resentencing law"

From Simple Justice, "Kopf: A 'Second Look' Option Might Lessen Federal Sentencing Disparity"

From the Washington Post, "Edward Simms is living proof that defenders of mandatory minimum sentences are wrong"

As always, I welcome reader input on criminal justice stories and reform commentaries here or elsewhere that should be getting more (or less) attention here and elsewhere.

August 8, 2019 in Recommended reading | Permalink | Comments (0)

Wednesday, August 7, 2019

"A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines"

The title of this post is the title of this notable new article now available via SSRN and authored by Brent Evan Newton. Here is its abstract:

Except for the federal criminal penalties for crack cocaine offenses, no specific non-capital penalty structure has been more widely criticized than USSG § 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. §§ 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography.  Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012 made a compelling case for changing both the guideline and, to a lesser degree, the statutes.

The current sentencing guideline for non-production offenses is fundamentally broken, as evidenced by the fact that only 28.4 percent of defendants sentenced under section 2G2.2 receive within-range sentences and 69.1 percent of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program).  The vast majority of child pornography defendants receive downward variances from their guideline ranges based on sentencing judges’ subjective senses of what appropriate sentences should be.  Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist -- in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants.

Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission.  Therefore, I have set forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional authorization.  If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

August 7, 2019 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Has anyone been tracking the record of Trump judges on sentencing and other criminal justice issues?

The question in the title of this post is prompted in part by this new NPR article headlined "Trump's Impact On Federal Courts: Judicial Nominees By The Numbers." Here is an excerpt:

President Trump can be a master of distraction, but when it comes to judges, his administration has demonstrated steely discipline. In the 2.5 years that Trump has been in office, his administration has appointed nearly 1 in 4 of the nation's federal appeals court judges and 1 in 7 of its district court judges....

Legal observers say Trump and his Republican allies in the Senate have placed an unmistakable stamp on the federal judiciary, not only in ideology but in identity.

"What stands out to me is that President Trump is deliberately nominating the least diverse class of judicial nominees that we have seen in modern history," said Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights. "It is stunning to me that 2 1/2 years in, he has not nominated a single African American or a single Latinx to the appellate courts."

In all, around 70% of Trump's judicial appointees are white men....

Russell Wheeler, a visiting fellow at the Brookings Institution, said Trump has mostly replaced judges appointed by Republican presidents with his own candidates, adding to conservative majorities in courts based in the South and narrowing the margin in the 9th Circuit in San Francisco — a frequent target of the president's attacks.

All the same, Wheeler said, the new judges of the Trump era are generally more conservative than the older ones winding down their careers. "When you replace a 70-year-old George W. Bush appointee who is slightly to the right of center with a 45-year-old movement conservative, obviously you're not trading apples for apples," Wheeler said.

On the Supreme Court, the record of Trump Justices on sentencing and other criminal justice issues has been interesting and intricate and not easily summarized.  I suspect the same is true for all the Trump judges on the district and circuit courts, especially because the impact of "movement conservatives" on sentencing and other criminal justice issues can be quite unpredictable.

August 7, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Tuesday, August 6, 2019

"The short-run effects of marijuana dispensary openings on local crime"

The title of this post is the title of this notable new empirical article authored by Jesse Burkhardt and Chris Goemans. Here is its abstract:

The recent legalization of marijuana in several states has led to increased public interest regarding the effect of legalization on crime.  Yet, there is limited empirical evidence relating the legalization of marijuana use and distribution to criminal activity.  This paper uses a difference-in-differences design to estimate the effect of marijuana dispensary openings on local crime rates in Denver, Colorado. 

We find that the opening of dispensaries actually decreases violent crime rates in above median income neighborhoods, an important finding in light of increased political debate surrounding legalization.  We also find robust evidence that non-marijuana drug-related crimes decrease within a half-mile of new dispensaries but do not simultaneously increase within a half-mile to mile of new dispensaries, with one possible explanation being that legal marijuana sales and hard drug sales are local substitutes.  Finally, in line with previous research, we find that vehicle break-ins increase up to a mile away from new dispensaries.

Cross-posted at Marijuana Law, Policy and Reform

August 6, 2019 in Marijuana Legalization in the States, National and State Crime Data | Permalink | Comments (0)

Notable Govs make the case for pressing forward with additional criminal justice reforms

Jerry Brown, former governor of California, and Matt Bevin, current governor of Kentucky, have this new Hill commentary under the headline "The US has barely scratched the surface on criminal justice reform."  Here are excerpts:

In these highly polarized times, our nation is awash in loud and public fights about immigration, health care, global warming, and other daunting challenges. Criminal justice used to be on that list of divisive topics.  But now Americans of nearly every political and demographic perspective agree — we need a public safety approach that works better and costs less.

As current and former governors who prioritize greater justice and safety, we believe this historic moment carries great opportunity, but even greater responsibility.  We must ensure that our momentum does not slip away, and we must push forward with nonpartisan purpose toward a criminal justice system worthy of our nation.

Our states of Kentucky and California are very different.  But we and other leaders across the country have coalesced around the principle that while people must be held accountable for breaking our laws, we cannot build our way to a safer society with ever-more prisons....

But while several dozen states and the federal government have made laudable progress, we’ve barely scratched the surface of all that must be done.  Taxpayers spend a quarter trillion dollars per year to arrest, try, sentence, and supervise the 7 million adults behind bars or on probation and parole.  Yet return-to-prison rates remain high, too many communities struggle with violence and substance abuse, and new technologies are increasing our vulnerability to cybercrime and other threats.

Fortunately, we know a lot more about what works in criminal justice than we did 40 years ago, when our nation began an incarceration boom that has exacted a heavy toll, in both fiscal and human costs.  While there are no magic bullets, research has spotlighted effective strategies to stop the cycle of reoffending and better equip people leaving prison to resume stable lives....

We’ve witnessed the power of shifting political winds, and we know that, particularly with criminal justice reform, we must double down on our efforts and guard against backward-looking proposals that are borne of emotion or recycle failed ideas of the past.

August 6, 2019 in Elections and sentencing issues in political debates, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, August 5, 2019

Are pretrial risk assessment algorithms really part of "socialist agendas that are sweeping this country"?

The question in the title of this post is prompted by this curious new Fox News commentary authored by US Senator John Kennedy under the headline "Bail, bond decisions are being made today with algorithms -- That puts your safety at risk."  Here are excerpts:

Jurisdictions across the U.S. are snapping up algorithms as tools to help judges make bail and bond decisions. They’re being sold as race- and gender-neutral assessments that allow judges to use science in determining whether someone will behave if released from jail pending trial.

Really, they’re a dangerous collision of the poorly vetted cost cuts and socialist agendas that are sweeping this country.

The algorithms scare me because they’re being implemented for the same reason as the early release programs that are getting people killed.  The goal isn’t to protect public safety.  It’s to empty jail cells and release dangerous criminals on their own recognizance.

As a member of the Senate Judiciary Committee, I’m concerned about the recklessness of public policy that endangers people’s lives, especially in minority communities, where crime often is such a scourge.  These algorithms -- called pretrial assessment release tools -- are the equivalent of using a Magic 8 ball in courtrooms.  The results are disastrous to communities and great for criminals.

In my home state of Louisiana, New Orleans decided a few years ago to reduce the jail population. City officials started using a pretrial assessment release tool that was available for free from a nonprofit founded by a former hedge fund manager who became a billionaire through risky investments that turned into gold.

Do you know what happens when you allow a hedge fund manager to restructure your criminal justice system? You get a model that’s fraught with risk.

The new tool comes into play when someone is arrested on a felony charge, such as robbery or rape. The tool comes up with a score of one to five based on the defendant’s age, criminal history and several other factors. A “one” is considered a low risk to public safety. A “five” is considered justification for maximum supervision.

You would think that a risk level of “one” would be limited to people who jaywalk or shoplift. You would be wrong. In practice, a “five” apparently is reserved for people who kill busloads of nuns.  Ordinary thugs get a “one” as long as they promise that they’ll spend all their time in church and attend every court appearance.  They don’t have to regularly check in with a court officer or even call once a month....

The Metropolitan Crime Commission found that 37.6% of the people arrested for violent felonies in New Orleans during the third and fourth quarters of 2018 received the lowest risk level of “one.”  That included more than 32% of the people arrested for homicide and 36.5% of the people arrested for rape.

Algorithms diminish public safety in this country.  They ask us to pretend that lengthy arrest records and violent crimes don’t matter. They ask police to scoop up the bad guys only for the courts to immediately release them.  They turn us into a bad joke.

The use of risk assessment algorithms, whether pretrial or at sentencing or in the prison system, is an important modern criminal justice development that justifies much scrutiny and can be criticized on many grounds. But this commentary by Senator Kennedy reads a bit like a parody.

For starters, one of the main reasons risk assessments are appealing is because judicial decision-making without the help of data can itself often seem a lot like "Magic 8 ball" decision-making.  Moreover, all sound risk-assessment tools factor in arrest records and violent crimes, so they cannot properly be attacked for pretending that these past acts "don’t matter."  And, most amusingly, I cannot  quite fathom how efforts to make criminal justice decisions based on useful and relevant data amounts to part of "socialist agendas." 

I would welcome Senator Kennedy encouraging the Senate Judiciary Committee to hold hearings about the pros and cons of using risk assessment algorithms in modern criminal justice systems.  But, since he suggests giving judges more information is part of "socialist agendas that are sweeping this country," I worry he might think informing Senators more about these matters also somehow has mysterious sinister socialist undertones.

August 5, 2019 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (6)

“MAGA Bomber” Cesar Sayoc sentenced to 20 years in prison despite LWOP guideline range

As reported in this CNBC piece, "'MAGA Bomber' Cesar Sayoc was sentenced to 20 years in prison on Monday for sending 16 mail bombs to 13 people around the United States last year, including leading critics of President Donald Trump such as former President Barack Obama, ex-Vice President Joe Biden, former Secretary of State Hillary Clinton, actor Robert De Niro and financier George Soros." Here is more about this high-profile sentencing:

“I am beyond so very sorry for what I did,” Sayoc said before he was sentenced in U.S. District Court in Manhattan by Judge Jed Rakoff, according to the Courthouse News service.

“Now that I am a sober man, I know that I a very sick man,” Sayoc reportedly said. “I wish more than anything that I could turn back time and take back what I did ... I feel the pain and suffering of these victims.”

But Rakoff said, “The nature and cirumstances of the instant offenses are, by any measure, horrendous.”

“While none of the devices exploded ... at the very least they were intended to strike fear and terror into the minds of their victims and to intimidate those victims, mostly prominent political figures, from exercising their freedom.” Rakoff noted that Sayoc, even if he proves to be a model prison, “will be about 75 years old before he can be released.”

“No one can pretend this is not, in real terms, substantial punishment; but in the Court’s view, it is no more, and no less, than [what] he deserves,” Rakoff said.

Sayoc, a 57-year-old Florida resident whose own lawyers called him “a Donald Trump super-fan,” pleaded guilty on March 21 to 65 criminal counts, which included using weapons of mass destruction and illegal mailing of explosives with intent to kill or injure. Prosecutors said Sayoc’s crimes amounts to a “domestic terrorist attack.”

Prosecutors had asked Rakoff to sentence the former exotic dancer and steroid abuser to life in prison for the mail bombing spree....

None of the home-made bombs exploded, and “would not have functioned as designed,” according to prosecutors. But they noted that Sayoc packed PVC pipes with explosive powder and glass shards, along with pool chemicals to “increase the chances of burning the skin of” his targets....

Sayoc’s lawyers had asked that he be sentenced to just 10 years in prison, the mandatory minimum for his crimes. In their own sentencing submission, defense lawyers wrote that, “a series of traumatic events pushed Cesar Sayoc further and further into the margins of society.”

Valuably, Judge Rakoff authored this nine-page sentencing opinion explaining why he found the sentencing recommendations of the prosecution and defense not quite right and why he settled on a 20-year prison term for these crimes.

August 5, 2019 in Booker in district courts, Celebrity sentencings, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Expressing concern about potential capital distraction from bipartisan criminal justice reform momentum

Laura Arnold has this notable new commentary at Law360 under the headline "Death Penalty Return May Undermine Criminal Justice Reform."  Here are excerpts:

Reasonable minds vociferously differ on, and will continue to debate, the morality of the death penalty. At this critical juncture and moment of opportunity for criminal justice, we must resist the urge to allow this debate to derail large-scale reform.

From a public policy, public safety and cost perspective, the federal death penalty pales in comparison to larger-scale reforms that we could enact today — areas where the White House could add to its bipartisan accomplishments.

There are roughly 171,000 convicted inmates in federal facilities and yet [AG Barr's restarting of executions] decision wastes precious political capital and national attention on a mere 62. Even if we end executions, those 62 will likely never set foot outside a prison for the rest of their lives. Their hearts will continue to beat, but their exile from the living world is immutable.

Meanwhile, there is much greater value in getting the system right for those among the 171,000 federal inmates and nearly 2 million in state and local facilities who have a chance of getting out. Those are the people helped by the First Step Act, and that is where we should continue to focus our efforts....

The death penalty raises a confluence of serious concerns that aren’t easily solved, ranging from constitutional questions to sheer public expense. No wonder that jurisdictions from coast to coast have stopped pursuing capital punishment. The number of death sentences declined by 50% between 2009 and 2015. In fact, only 16 counties out of 3,143 imposed five or more death sentences between 2010 and 2015.

Many advocates want to lower that number to zero. It’s a debate worth having, both at the federal level and in every state. Jurisdictions should, and will, make their own determinations, as they do on numerous issues of policy relevance.

But now is not the time to stoke this fight. We should focus all our bipartisan efforts on positively affecting the more than 2 million lives currently under incarceration nationwide, and on systemic improvements that will result in fewer people facing incarceration in the first place.

The Trump administration has demonstrated a passion for this mission, and a keen skill at building momentum amid an otherwise chaotic political atmosphere. Let’s not lose that momentum by derailing the conversation.

I very much like the message and spirit of this commentary, and long-time readers know I have long discussed in various settings the various problems I see from advocates and others giving so much attention to capital cases. (Some examples of my writings in this vein include A Capital Waste of Time? Examining the Supreme Court’s “Culture of Death,” 34 OHIO N.U. L. REV. 861 (2008) (available here) and Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. (2008) (available here).)

But, at the same time, I am not sure AG Barr's decision to try to kick-start the death penalty necessarily will or should have to negatively impact other bipartisan criminal justice reform efforts.  Though this may be wishful thinking, one might hope that the recent death penalty move by the Trump Administration may help mollify the "tough-and-tougher" crowd (likely Senators Cotton and Kennedy and certain pundits) who always pose challenges for further federal reforms.  

In months ahead, robust engagement with the federal death penalty will be taking place in federal courts, and I think it somewhat unpredictable whether and how this litigation will impact broader criminal justice reform politics.  But this commentary rightly flags an issue worth watching in the months and years ahead.

August 5, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Sunday, August 4, 2019

"Charging As Sentencing"

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

This Article connects two uncontroversial claims to support a novel and momentous thesis.  The first familiar claim is descriptive.  The most important determinant of an offender’s sentence is the discretionary selection of charges before guilty plea or trial.  The second familiar claim is doctrinal.  The Supreme Court has held that procedural due process requires that the discretionary selection of a sentence from within a statutory range be made by a neutral tribunal after notice and hearing.  Together, these humdrum observations imply that statutes delegating sentencing power to prosecutors — so-called “mandatory” minimum sentences -- are unconstitutional.  Part I presents the descriptive claim that charging, in many cases, simply is sentencing.  Part I also reviews the Supreme Court’s jurisprudence rejecting constitutional challenges to prosecutorial discretion, decisions premised on a statutory baseline, the long-discredited right-privilege distinction.  Part II reviews the Court’s sentencing cases.  These decisions rejected the right-privilege distinction by substituting a procedural for a statutory baseline.  These cases hold that procedural due process permits legislative delegation of sentencing discretion only to neutral tribunals.

The sentencing cases condemn sentencing by prosecutors as a violation of procedural due process.  Yet the Court has sustained prosecutorial charging discretion against multiple challenges, albeit not the one raised by this Article.  There are at least four possible resolutions of the conflict in the cases. Courts might: (1) deny the equation of charging and sentencing, because the effect of charging on sentencing is contingent; (2) bless the inconsistency in the cases by appealing to history; (3) regulate charging decisions via administrative law, or (4) declare prosecutorial discretion to bring charges carrying mandatory minimum penalties unconstitutional.  The rest of the Article argues against options (1), (2) and (3), and in favor of option (4).  Replies are offered to objections based on pragmatism or on politics.

August 4, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, August 3, 2019

Rounding up some 2020 criminal justice reform press pieces

In the wake of the latest debate among Democrats vying for a 2020 Prez nomination, the Marshall Project had these two great pieces on the Democratic field and modern political realities:

"Beyond One-Liners: A Guide to the Democratic Debate on Criminal Justice"

"Are Voters Ready to Move on From Willie Horton?  Democratic debates show how far the conversation has come on justice reform."

In addition, a few other media outlets have had recent pieces in a somewhat similar same vein:

"Criminal Justice Reform Advocates See Prime Opportunity in 2020 Election"

"What's wrong with America's criminal justice system? 6 questions for an expert"

August 3, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

Friday, August 2, 2019

Federal circuit judge laments at lengthy how plain error review now works for guideline errors

A helpful reader made sure I did not miss the concurring opinion authored by Fifth Circuit Judge Oldham this week in US v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019) (available here). The Fifth Circuit panel vacated a sentence on plain error review based on a small guideline calculation problem. Judge Oldham seems quitr grumpy that applicable SCOTUS precedent required this reversal, and he authors a 20-page concurrence to explain why. That opinion starts this way:

Today’s result might surprise the uninitiated: Based on a one-point offense-level miscalculation in the advisory Guidelines, the United States must restart its criminal-justice machinery so it can fix a mistake that’s supposedly so “plain” it cannot be ignored but also so subtle that del Carpio ignored it below.  This result is particularly surprising because, not so long ago, the Supreme Court told us that “[m]eeting all four prongs of [plain-error review] is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009).  But this case illustrates it’s no longer that difficult.  So I agree current Supreme Court precedent requires that del Carpio be resentenced.  I write separately to explain how we got here.

August 2, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"Every D.A. in America Should Open a Sentence Review Unit"

The title of this post is the title of this notable new New York Times commentary authored by James Forman Jr. and Sarah Lustbader. Here are excerpts:

What can we do to shrink our prison population, the world’s largest?

Most answers to that question point forward: They look to reduce future arrests, prosecutions and sentences. But such changes, while desperately needed, do nothing for the hundreds of thousands of people who are already serving long sentences in America’s expensive and overcrowded prison system.

And make no mistake about it: There are a lot of people serving extraordinarily long sentences. The state prison population grew 222 percent from 1980 to 2010; the National Research Council attributes half of that growth to an increase in incarceration time. The Sentencing Project reports that one in seven American prisoners is serving either a life sentence or its functional equivalent. (In some states, the number is almost one in three.)  Once, parole boards could truncate some of these long sentences, but the decimation of parole has largely eliminated that possibility.

The explosion in sentence length has turned some prison wings into de facto nursing homes, with prisons responsible for providing costly medical care to a growing elderly population. Keeping people locked up for so long does little for public safety. Most people who commit crimes, including violent crimes, do so while young. Arrest rates for violent crimes peak during people’s late teens (rates for robbery, for example, are highest at age 19), and criminal careers for violent crime typically last only five to 10 years....

Fortunately there is growing momentum to reduce excessive sentences. Legislation authorizing sentence reductions in old cases has passed in California and the District of Columbia. Senator Cory Booker has proposed something similar at the federal level. And in July, more than 3,000 people were released from federal custody under the First Step Act, passed in December, which allows certain federal prisoners to earn early release for good conduct.

But there is another solution to this problem. Prosecutors can recognize their role in creating the crisis and work toward fixing it. They should start by opening “sentence review units,” which would consist of small dedicated teams of lawyers, investigators, data scientists and social workers within the prosecutor’s office. The details would vary by place, but each team would review past cases, and when they find sentences that seem particularly egregious, prosecutors would give these cases a second look....

The concept of sentence review units is not entirely unfamiliar; it builds on conviction review units that root out cases where an innocent person has been found guilty. Sentence review units are similar, but instead of wrongful convictions, they seek out cases where the sentence seems excessive. What counts as “excessive” is necessarily a judgment call, but examples include sentences that in retrospect seem disproportionate to the severity of the offense, or those that are far longer than what a person sentenced today would receive.

Why should prosecutors be the ones to lead the movement to cut down long sentences? Because they were, and in many places still are, a major driver of the country’s sentencing explosion. In the courtroom, they have pushed for maximum sentences and resisted appeals for leniency. In statehouses, they have lobbied legislatures for longer sentences and opposed reform efforts...

Larry Krasner, Philadelphia’s district attorney, intends to open a sentence review unit. “Sometimes extreme sentences reflect unscientific beliefs; sometimes they reflect racism; and sometimes they reflect judges who punish you 10 times harder if you went to trial,” he told us in an interview. In all these cases, he said, the upshot is the same: “There are a lot of people in jail who very clearly don’t need to stay in jail.”

For now, sentence review remains ad hoc. But demands from citizens and leaders can help these local efforts grow into a national movement. Cutting down excessive sentences will not, on its own, solve the crisis of mass incarceration or bring our prison population in line with the rest of the world. But failing to act will ensure that the wounds caused by those sentences never heal.

Regular readers will not be surprised to know I am a big fan of this idea. Indeed, I wrote an a short article on this very topic nearly a decade ago, titled Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers, 19 Temp. Pol. & Civ. Rts. L. Rev. 429 (2010).

August 2, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, August 1, 2019

"Using the ADA's 'Integration Mandate' to Disrupt Mass Incarceration"

The title of this post is the title of this new article now on SSRN authored by Robert Dinerstein and Shira Wakschlag.  Here is the abstract:

As a result of the disability rights movement's fight for the development of community-based services, the percentage of people with intellectual and developmental disabilities (I/DD) and mental illness living in institutions has significantly decreased over the last few decades.  However, in part because of government failure to invest properly in community-based services required for a successful transition from institutions, individuals with disabilities are now dramatically overrepresented in jails and prisons. 

The Americans with Disabilities Act's (ADA) "integration mandate" -- a principle strengthened by the Supreme Court's 1999 Olmstead v. L.C. decision, entitling individuals with disabilities to receive services in the most integrated setting appropriate to their needs -- may provide one avenue to disrupt the school-to-prison pipeline and overrepresentation of people with I/DD and mental illness in prisons and jails.  In this Article, we explore how the federal government and private parties have used--and are beginning to use in new ways -- the integration mandate to advocate for the rights of individuals with disabilities to receive the supports they need to thrive in the community and avoid unnecessary entanglement with the criminal justice system.

August 1, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Another round of great new Quick Facts publications from US Sentencing Commission

I am always eager to praise the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications ( (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). And I have recently seen that there are a number of new Quick Facts on a lot of major federal sentencing topics based on the USSC's recently released 2018 fiscal year data. Here are some these newer publications:

Drugs

Firearms

Offender Groups

August 1, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

"The Singularity and the Familiarity of Solitary Confinement"

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

More than 60,000 people are held in solitary confinement in U.S. prisons.  This essay explores the ways in which solitary confinement is distinctive and yet also is a familiar feature of U.S. prisons.  To do so, I track the expansion of solitary confinement, analyze the debate in federal courts about its lawfulness, and provide recent data on its widespread use.

In 2005, the U.S. Supreme Court condoned the use of solitary confinement, even as it also licensed courts to inquire about whether a particular version imposed an “atypical and significant hardship” on an individual.  If a prisoner can make such a showing, prison officials must provide some procedural buffers against arbitrary placements.

Empirical understandings of the use of solitary confinement comes through nation-wide surveys undertaken by the Association of State Correctional Administrators and the Liman Center at Yale Law School.  Data from 2018 identified more than 60,000 individuals who were placed in cells for 15 days or more for 22 hours or more.  Almost 4,000 people have been so confined for three years or more.

Solitary confinement is thus all too “typical” a facet of prison life.  Yet its commonplace occurrence ought not insulate solitary confinement from the conclusion that it is an illicitly cruel practice that debilitates individuals.  The complexity of doing so stems not only from the widespread use of solitary confinement, but also from the ways in which U.S. prisons are committed to many practices that are isolating and disabling of individuals.

August 1, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, July 31, 2019

Struggling with an execution protocol, Ohio Gov DeWine delays execution scheduled for Sept 2019 to May 2020

This morning I reported in this post about the discussion and difficulties surrounding Ohio's execution protocol, a matter which needed to be worked out quickly if the state was going to go ahead with a scheduled September execution.  But, as reported in this local article, this afternoon Ohio Gov DeWine "delayed the execution date of convicted murderer Warren Henness, the next Ohio inmate set to be put to death, from Sept. 12 until May 14, 2020."  Here is more:

Gov. Mike DeWine says Ohio may need to stop executing people by injection because state officials have been unable to obtain the necessary drugs, according to a DeWine spokesman.

DeWine, a Greene County Republican, has asked legislative leaders to consider legislation that would change Ohio’s 18-year-old law making lethal injection the state’s sole execution method, according to gubernatorial spokesman Dan Tierney....

In January, a federal judge suggested that Ohio’s current three-drug execution cocktail was unconstitutional, leading DeWine to postpone execution dates for Henness and three other men and order a review of the state’s death-penalty method.

However, since then, state officials have found they’ve been unable to purchase new execution drugs, Tierney said. In addition, as many lethal-injection drugs are manufactured primarily for medical use, Tierney said the governor is concerned that if drug companies find that Ohio used its drugs to put people to death, the companies will refuse to sell any of its drugs (not just the ones used in executions) to the state. That could endanger the ability of thousands of Ohioans – such as Medicaid recipients, state troopers, and prison inmates – to get drugs through state programs, Tierney said.

DeWine has pointedly not said which, if any, alternative execution methods he would prefer to see used in Ohio. Tierney said that’s because the governor is concerned that any such comments could affect ongoing death-penalty court cases.

At least one Ohio death-row inmate has asked to be put to death via firing squad. Tennessee brought back use of its electric chair twice last year, and Oklahoma has been working to execute inmates using nitrogen gas.

Even if state lawmakers agree that Ohio should find another way to kill death-row inmates, as the legislature is currently on summer break, it’s unlikely any change in state law will come before this fall, at soonest.

Senate President Larry Obhof told reporters Wednesday that he looks forward to speaking with the governor and House Speaker Larry Householder about what to do about Ohio’s execution method. “I think all three of us approach the issue with an open mind,” said Obhof, a Medina Republican. Obhof added that he thinks a majority of Ohioans support keeping the death penalty itself as an option, though he noted that the Senate is considering legislation that would prohibit executions of people with severe mental illness.

A few (of many) prior recent related posts:

July 31, 2019 | Permalink | Comments (1)

Two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post last month, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And now I see that these two additional pieces are now accessible to all (with a few paragraphs quoted here):

The “Virtual Extinction” of Criminal Trials: A Lawyer’s View from the Well of the Court by Frederick P. Hafetz

Twenty-five years earlier, nearly 20 percent of defendants in the federal criminal justice system went to trial.  By the time the Lorenzos were indicted in 2004, only 4 percent went to trial. That number has since decreased even further so that now less than 3 percent go to trial.  Since the mid-1980s, as Manhattan federal judge Jed Rakoff states, federal criminal trials have undergone a “virtual extinction.”

This dramatic decline in the frequency of criminal trials in the federal system is mirrored in the state system as well.  While data in the state criminal justice systems on the number of trials is not maintained as comprehensively as it is in the federal system, available data and studies show a similar pattern of decline, although not as sharp as in the federal system.  In New York, California, and Illinois, for example, the percentage of defendants going to trial is less than-one half of what it was thirty years ago.

Why the Founders Cherished the Jury by Vikrant P. Reddy and R. Jordan Richardson

You would be hard-pressed to find a Constitutional issue that garnered more agreement among the Founders than the right to trial by jury.  As historian William Nelson notes, “For Americans after the Revolution, as well as before, the right to trial by jury was probably the most valued of all civil rights.”  Writing in 1788, Alexander Hamilton observed that among the “friends and adversaries of the plan of the [Constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” Hamilton’s chief political rival, Thomas Jefferson, echoed these sentiments, and considered trial by jury as the “only anchor ever yet invented by man, by which a government can be held to the principles of its constitution.”

Prior related posts:

July 31, 2019 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (4)

"Federal Criminal Risk Assessment"

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

Risk assessments are a common feature of federal decisionmaking, including across a range of administrative agencies.  However, in federal criminal law, risk assessments have been only haltingly adopted.  Decisions regarding bail, sentences, and prison programming have largely been made based on official discretion.  Risk assessment instruments are currently used in federal courts pre-trial, post-conviction, and in federal prisons regarding security levels and reentry, with highly uneven results to date.  The adoption of the FIRST STEP Act, which has the ambition to transform the federal prison system through use of risk instruments, has the potential to introduce a more legitimate, transparent, and validated approach, using instruments developed publicly and, ideally, implemented consistently.

Questions remain regarding whether the risk and needs instrument adopted will then be successfully and consistently implemented to assign inmates to programs, whether there will be adequate resources for those programs, and what the effectiveness of those programs will be.  Prior efforts in the federal system, including concerns raised by reports and audits of federal risk assessment, as well as evidence from efforts in states and locally, suggest reason for caution and care as this new system is implemented. Important lessons can be learned from the successes and the failures of prior efforts to improve outcomes in the criminal system.

July 31, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

The long legacy of drug wars: Eighth Circuit panel affirms LWOP sentence for drug dealer as reasonable

As long-time readers likely realize, I do not blog much these days about how federal circuit courts are conducting reasonableness review of sentences — largely because there are precious few cases in which circuit judges seriously question (or even seriously engage with) the sentencing judgments of district courts.  A helpful reader alerted me to a reasonableness review decision from the Eighth Circuit today which provides another example of how disinclined circuit courts are to question even the most extreme prison sentences.

US v. Duke, No. 18-1371 (8th Cir. July 310, 2019) (available here), involves the appeal after a resentencing of a man originally sentenced three decades ago.  Back then, arguably at the height of the modern drug war, "Ralph Duke was sentenced in 1990 to a term of life imprisonment plus forty years for committing several serious drug trafficking and firearms offenses."   Here is a description of Duke's crimes from this latest opinion:

Duke controlled all phases of a drug trafficking organization in the Minneapolis/St. Paul area from 1984 through June 1989.  He purchased cocaine primarily from a Colombian-affiliated source in Houston or from sources in Los Angeles.  The cocaine was transported to Minnesota in vehicles owned by Duke and driven by younger members of his drug trafficking organization.  Duke then distributed kilograms of cocaine to dealers for resale at the street level in smaller quantities.  Duke laundered the proceeds of drug sales by purchasing homes and cars in the names of others.  All told, Duke and his organization trafficked over fifty kilograms of cocaine before law enforcement interrupted their operations.  When Duke was apprehended in May 1989, officers found two loaded handguns in his bedroom and two assault shotguns and two AR-15 semi-automatic rifles in his residence.  The government charged at least twenty-five people as a result of the investigation of Duke’s organization. 

In other words, Duke was a big-time drug dealer in the 1980s, though it does not appear that he was actively involved in any violent activities or that his case involved other aggravating factors (though I suppose he might be called a drug kingpin).  But back in the 1990s, when the drug war was ranging and the federal sentencing guidelines were mandatory, perhaps it is not surprising that the federal district judge originally imposed an LWOP sentence on Duke.

But fast forward nearly 30 years, and Duke had the chance to benefit from a full resentencing in 2018 due to various legal developments.  Circa 2018, the federal sentencing guidelines were now advisory and, according to Duke, a lower sentence was justified in light of his "exceptional institutional conduct over the last 29 years, lack of criminal history, age, medical history, family ties, rehabilitation, remorse, and low risk of recidivism."  But the same federal district judge was unmoved and decided to give Duke an LWOP sentence yet again.  And the Eighth Circuit panel, in the ruling linked above, decided this LWOP sentence was reasonable.

When Booker was first decided and circuit courts were tasked with reasonableness review based on 18 U.S.C. § 3553(a), I had sincerely hoped appellate judges would come to embrace the task of ensuring sentences were "not greater than necessary to comply with the purposes set forth" by Congress.  But it became all too clear all too quickly that all too few circuit judges were eager to rigorously review long prison sentences, especially if those sentences fell within calculated guideline ranges.  Years later, even with mass incarceration and long sentences for drug offenses subject to considerable criticism, we still see federal judges finding no problem with giving a "death-in-prison" sentence based on drug dealing many decades ago.

July 31, 2019 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol

As reported here six months ago, the Governor of Ohio has imposed something of a de facto moratorium on executions in the state not long after taking office because of concerns over the state's (historically troubled) lethal injection protocol.  But this new local article, headlined "DeWine now OK with ‘pouring fire in vein’ executions," reports on new developments suggesting new executions might go forward with an old execution protocol. Here are the details:

Despite saying in February that “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment,” Gov. Mike DeWine will consider using that same method in an upcoming execution, his spokesman said Tuesday.  The state’s lawyers have argued before a federal appeals court that Ohio’s current three-drug mixture can be used despite the lower court ruling likening it to waterboarding and pouring fire in the prisoner’s veins.

The governor earlier this year delayed four executions and ordered corrections officials to come up with a new death penalty protocol after a federal judge sitting in Dayton raised serious questions about the existing one.  Tuesday’s news comes after U.S. Magistrate Judge Michael Merz took the unusual step last week of ordering lawyers for the state to show DeWine a brief they filed in a death-penalty appeal. The brief appeared to be at odds with DeWine’s public position on Ohio’s controversial death-penalty protocol, Merz said in the order.

Merz is presiding in a lawsuit over whether Ohio’s death-penalty protocol violates constitutional protections against cruel and unusual punishment. He ruled in January that experts had convinced him that Ohio’s condemned were likely to experience severe pain using the protocol.  However, Merz did not stop the execution of Warren Keith Henness because, the judge ruled, Henness didn’t propose a viable alternative method of execution as required by a 2015 U.S. Supreme Court decision.

In response to Merz’s ruling, DeWine in January delayed Henness’s execution, saying the state would devise a new protocol.  Then in March, he delayed three more.  But now Henness’s new execution date is just six weeks away and the governor’s spokesman couldn’t say Monday how close the Ohio Department of Rehabilitation and Correction is to coming up with a new protocol.

A puzzled Judge Merz last week noted that in their appellate briefings the state’s lawyers voiced strong support for the death protocol that Merz — and presumably DeWine — found so problematic.  The state has “vigorously defended the existing protocol and criticized (Merz) for suggesting a stay of this litigation until the governor’s directions (to develop a new one) are carried out, as if it were (Merz’s) personal agenda rather than that of the governor,” Merz wrote, justifying his order that state lawyers show DeWine the appellate brief. “The court merely wishes to ensure that the governor has had an opportunity to see for himself whether he perceives this inconsistency.”...

But lawyers for Ohio said even if the condemned could feel pain after being injected with Midazolam, it still would not amount to constitutionally prohibited cruel and unusual punishment. “If hanging does not produce an unacceptable degree of pain even though it usually results in suffocation, then it follows that Midazolam does not cause ‘severe pain and needless suffering’ even if it is ‘certain or very likely to cause’ suffocation,” they wrote in their brief to the 6th U.S. Circuit Court of Appeals in Cincinnati.

They were quoting from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe, the U.S. Supreme Court’s most recent ruling regarding the death penalty. In discussing hanging, Gorsuch was arguing that at the time the Eighth Amendment was adopted, people didn’t see hanging as intentionally cruel, unlike practices such as disemboweling or burning the condemned while they were still conscious....

Press secretary Dan Tierney said there’s nothing unusual about DeWine delaying executions over concerns about Ohio’s death penalty at the same time the state’s lawyers are in court defending it. “Their job is to defend the laws as valid and constitutional until they’re proven otherwise,” Tierney said. Tierney and the state’s lawyers are holding out the possibility that Henness might be executed using Ohio’s existing three-drug protocol — an issue that Tierney said has “not been fully litigated.”

Asked whether DeWine might restart executions using the current protocol if the state’s lawyers prevail in that litigation, Tierney said in an email, “Understand that these are hypothetical scenarios, but if the court overturns the factual record in the lower court, or the factual record otherwise changes through the legal proceedings, the governor will certainly review that new evidence regarding the protocol and take it under consideration.”

Henness and his lawyers might find that litigation difficult.  The Supreme Court — particularly it’s conservative majority — has since 2008 shown itself to be increasingly skeptical of prisoners’ claims that various methods of lethal injection amount to cruel and unusual punishment.  They’ve voiced suspicions that what prisoners and anti-death-penalty advocates really are aiming for is a backdoor abolition of execution.

A few (of many) prior recent related posts:

UPDATE: This new local article, headlined "Ohio can’t get drugs for a new execution method, DeWine admits," highlights how drug acquisition issues continue to cause problems for the Buckeye state's effort to get its machinery of death operational:

Ohio Gov. Mike DeWine said Wednesday that state prison officials are finding it impossible to find any company to supply drugs an execution alternative to one that essentially has been declared cruel and unusual. He said he would talk to Statehouse leaders about legislation allowing a different execution method.  Some Ohio death row inmates have been asking to be executed by firing squad, while two Tennessee inmates last year opted to be executed in the electric chair. Ohio’s “Old Sparky” has been in storage for years.

DeWine delayed four executions early this year after a federal judge in Dayton said Ohio’s current intravenous protocol came perilously close to violating constitutional protections against cruel and unusual punishment. One was rescheduled for Sept. 12, but DeWine on Wednesday said that was under review....

Ohio had been buying the drugs through its Department of Mental Health and Addiction Services and then driving them down to the death house at the Southern Ohio Correctional Facility without telling drug makers what the substances would be used for.  However, DeWine said the drug makers have told the state that if they suspect that any of their products would be used in executions, they would stop selling to the state altogether, potentially depriving tens of thousands of Ohioans of important medicine. “We are in a very difficult situation,” DeWine said.

July 31, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, July 30, 2019

A (depressing) first term commutation scorecard for recent US Presidents

By my count, thanks to two commutations granted yesterday, President Donald Trump has now commuted six prison sentences during the first two-third of his first term in office.  (For those interested in an accounting, the folks who have received commutations are Sholom Rubashkin, Alice Marie Johnson, Dwight and Steven Hammond, Ronen Nahmani and Ted Suhl.  All of Prez Trump's clemency work is detailed on this wikipedia page.) 

Given that there are over 177,000 persons serving federal prison sentences, six commutations is, by all sensible measures, a very small number.  The granting of only six commutations seems especially disappointing given that last year Prez Trump was talking about considering clemency requests that including "3,000 names, many of those names have been treated unfairly, ... [and] in some cases, their sentences are far too long."  Six commutations to date also seems quite small in light of the advocacy by Alice Marie Johnson, Prez Trump's most famous commutation recipient, who has urged the President to free "thousands more" federal prisoners like her.

But if we bring a little historical perspective to this story, six commutations during a president's first Term in office starts looking a lot better — primarily because the clemency records of recent presidents is so very awful.  Specifically, using the official clemency statistics here from the Office of the Pardon Attorney (and perhaps being off a little because of the fiscal year accounting), here is a first term commutation scorecard for US Presidents over the last half century:

Prez              Commutations in first term

Nixon             48

Ford               22

Carter            29

Reagan           10

HW Bush         3

Clinton            3

W Bush            2

Obama             1

Trump              6

As informed readers know, back in Nixon's day, the federal prison population was only just over 20,000.  That so very few federal prisoners have recently received clemency while the federal prison population has swelled makes these numbers even more depressing.  The also look terrible if we look back further historically, as almost every other 20th Century US President (except for Dwight Eisenhower) granted a hundred or more commutations while in office (with Woodrow Wilson granting 341 in 1920 alone).

July 30, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death

Unsurprisingly, Attorney General William Barr announcement of a change in the federal execution protocol and scheduling of five federal executions (basics here) has prompted lost of reactions from the commentariat.  Here is just a sampling of some notable reactions and discussions I have seen: 

From The Atlantic, "Barr Doesn't See What's Wrong With the Death Penalty"

From Fox News, "Robert Blecker: AG Barr is right to resume death penalty for vicious killers"

From Fox News, "Hannah Cox: AG Barr is wrong to resume executions -- Death penalty goes against conservative principles"

From The Hill, "The death penalty is racially biased, fiscally irresponsible and very inaccurate"

From The Intercept, "With Federal Executions Looming, the Democrats' Death Penalty Legacy Is Coming Back to Haunt Us"

From New York magazine, "The Death Penalty Is Already a Farce. William Barr’s Plan Might Make It Torturous."

From Slate, "Trump’s Death Penalty Obsession Won’t Stem the Tide Against Executions"

From Spectator USA, "The death penalty is red tape threaded into a noose: On conservative grounds it is no longer defensible"

From Time, "Why the Justice Department's Plan to Use a Single Drug for Lethal Injections Is Controversial"

From The Washington Examiner, "Former death penalty proponent Biden flip-flops as federal cases advance"

 

Prior recent related posts:

July 30, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

"Public Perceptions of Plea Bargaining"

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

Several studies indicate that the public disapproves of plea bargaining, the most common method of resolving cases in the criminal system.  However, such studies assume a common understanding of plea bargaining with no basis for this assumption.  Although there are a few basic constitutional requirements for a plea bargain, what it is, why it is used, and how plea bargains are performed remains a matter of some debate.  Scholars, for instance, paint a particularly dark picture of plea bargaining, where, among other flaws, the innocent are regularly coerced into pleading.  This view of plea bargaining is quite different from the version portrayed on TV, where the guilty are punished, the innocent spared, and plea bargains provide only as much benefit to a defendant as a reasonable society can tolerate.  Given these disparate views, this essay asks: what does the public understand a plea bargain to be?

In (partial) response to this question, this essay does three things.  First, it examines the gulf between "insider" narratives, among practitioners and scholars, and "outsider" narratives, such as portrayals of plea bargaining on fictionalized legal dramas, about how and why plea bargaining happens.  Second, it asks: What narrative, if any, does the public believe about plea bargaining? It reviews the scholarship in the field of public perceptions of plea bargaining and finds that although the literature provides some evidence that the public disapproves of plea bargaining, the average person’s understanding of the plea bargain is essentially unknown.  In response to this lack of research, this essay lays out the findings of a study, conducted by the author, about perceptions of plea bargaining among a group of law students and finds that this population adopts pieces from each narrative in their understanding of plea bargaining.  Third, this essay concludes with an explanation of why it is critical to study the public’s understanding of plea bargaining and proposes some areas of future study.  Given that the criminal justice system touches the lives of so many people in the country and that plea bargaining is the primary means of resolving cases in the criminal system, the public’s conception about this secretive practice has meaningful implications for the legitimacy of the system itself.

July 30, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, July 29, 2019

Prez Trump gets back to using his clemency pen with two commutations and five pardons

As reported in this article from The Hill, "President Trump on Monday commuted the sentences of two nonviolent criminals and granted pardons to five others who previously pleaded guilty to nonviolent crimes but have completed their sentences." Here are details:

The White House announced that Trump commuted the sentence of Ronen Nahmani, who was convicted in 2015 and sentenced to 20 years in prison for conspiring to distribute a synthetic drug known as spice. The White House said Nahmani was a first-time offender with no prior criminal history who has five young children at home and a wife battling terminal cancer. The release also noted his case for an early release received support from bipartisan lawmakers.

Trump also commuted the sentence of Ted Suhl, an Arkansas man who was convicted in 2016 on four counts of bribery after prosecutors said he took part in a scheme to increase Medicaid payments to his company. Suhl appealed the ruling, but it was upheld, and he intended to file for an appeal with the U.S. Supreme Court. The White House noted his "spotless disciplinary record" while incarcerated and highlighted his support from former Gov. Mike Huckabee and former U.S. Attorney Bud Cummins.

In addition, Trump granted executive clemency to five people. The president pardoned John Richard Bubala, who pleaded guilty in 1990 to improper use of federal government property by transferring automotive equipment to the town of Milltown, Ind. Trump also pardoned Roy Wayne McKeever, who pleaded guilty in 1989 after he was arrested for transporting marijuana from Mexico to Oklahoma. McKeever was 19 at the time and served one year in jail.

Rodney Takumi received a pardon for a conviction over a 1987 arrest while he was working at an illegal gambling parlor. Takumi now owns a tax preparation franchise within the Navajo Nation, the White House said.

Trump granted clemency to Michael Tedesco, who was convicted in 1990 of drug trafficking and fraud. Former President Obama had pardoned Tedesco in 2017, but the fraud conviction remained on his record due to a clerical error. Trump's pardon will remove that charge, allowing Tedesco to obtain state licenses needed for his business.

The president also pardoned Chalmer Lee Williams, who was convicted in 1995 of several crimes related to theft of firearms and checked luggage during his time as a baggage handler. Williams served four months in prison and two years of supervised release. His voting rights in Kentucky were restored in 1998, the White House said....

With Monday's announcements, Trump has now pardoned or reduced the sentences of 19 individuals since taking office.

I had literally written to someone just today that I had largely given up on Prez Trump using his clemency powers regularly, and here he goes again. I was involved in helping to write an amicus brief urging the Supreme Court to take up the Nahmani case, so I am very pleased to see that the executive branch provided some relief to an extreme sentence after the judicial branch failed to do so.

Here are the official statements from the White House on these new clemency grants:

President Trump Commutes Sentence of Ronen Nahmani

President Trump Commutes Sentence of Ted Suhl

Statement from the Press Secretary Regarding Executive Grants of Clemency

July 29, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

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)

"The Effect of Public Health Insurance on Criminal Recidivism"

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

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

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

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

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

Will criminal justice reform take on a bigger role in round two of the 2020 Democratic Prez candidate debates?

190717174548-cnn-democratic-presidential-debate-large-169The next round of debates among the Democratic candidates eager to take on Prez Trump in Nov 2020 takes place this week in Detroit (and this local article provides a partial review and preview of the candidates).  I have an inkling that Prez Trump's varied attacks on various Democratic members of Congress may take up a lot of the conversation, but I am of course hoping that we get more focus on criminal justice reform issues.  For various reasons, I think we might.

For starters, federal criminal justice developments have been in the news quite a bit of late.  Two weeks ago, we had the implementation of the FIRST STEP Act kick into a new gear (basics here), and last week Attorney General William Barr announced a change in the federal execution protocol and the scheduling of five federal executions (basics here).  These developments certainly could justify a focused question ("Will you pledge to commute all federal death sentences as Prez?") or general question ("What should be prioritized in the NEXT STEP Act?") on federal criminal justice reforms.

In addition, a number prominent candidates, in particular Joe Biden, Cory Booker and Pete Buttigeig, have put forth major criminal justice reform plans in recent weeks.  These candidates now have developed positions and "talking points" on various criminal justice reform topics, and they may be interested in bring up their plans in more general discussions to highlight their priorities.

And speaking of Joe Biden, it is possible that some of his competitors might think that he can be attacked based on his past role in various federal laws that are now the subject of much justified criticism.  With Biden seemingly still the front-runner, there might be an interest in bringing up his criminal justice reform past.  This new lengthy Washington Post article, headlined "How an early Biden crime bill created the sentencing disparity for crack and cocaine trafficking," certainly tees up one possible line of attack.  Here is an excerpt:

As he makes another bid for the White House, Biden, now 76, is facing criticism over his past advocacy for tough-on-crime policies, particularly his authorship of the 1994 omnibus anti-crime law that is blamed for accelerating incarceration rates, especially of black men.  One of his Democratic rivals, Sen. Cory Booker of New Jersey, last week said that the law “inflicted immeasurable harm on black, brown, and low-income communities.”  Booker is expected to raise the issue again before a national audience during this week’s primary debate.

Biden’s role in passing the lesser-known 1986 law and creating the crack-powder disparity reveals how he grappled with policies years earlier that would affect the black community.  The episode could further complicate his ongoing struggle to reconcile his decades-long record with changing political and societal norms....

An examination of Biden’s work on a half-dozen criminal justice bills found that his legislation included liberal priorities but also broadly served to push federal criminal policy to the right in response to a surge of violent crime.  Biden’s language and policy positions were mainstream for Democrats at the time, reflecting a political consensus around tough-on-crime policies during the crime wave that began in the 1970s and efforts by many in the party to assert a more centrist image.

Critics now say those policies helped fuel incarceration and racial disparities in the criminal justice system — and are calling on Biden to take responsibility for his part....

The Anti-Drug Abuse Act authorized more than $1 billion for drug enforcement, education and treatment programs.  But one of its most consequential provisions was the “100-1” rule, so named because it required a five-year mandatory minimum sentence for trafficking in 500 grams of powder cocaine or five grams of crack.

Though Biden took responsibility for the formula in 2002, it is unclear exactly how it came to be part of his bill.  The ratio was more aggressive than proposals from either the Reagan administration, which sought a “20-1” rule, or House Democrats, who held the majority and sought a “50-1” rule, but less aggressive than the “1,000-1” ratio proposed by Sen. Lawton Chiles (D-Fla.), the co-chairman of Biden’s working group.

The process had turned into a political “bidding war” between Republicans and Democrats, who were courting fearful voters ahead of the 1986 elections, said Eric Sterling, a former House Democratic staffer who worked on the 50-1 proposal.

No experts recommended a 100-1 ratio, said Sterling, now president of the Criminal Justice Policy Foundation, a drug policy and criminal justice reform group, who said he regrets working on the House proposal.  “Biden was the lead anti-drug guy among the Democrats.  As ranking member, he had critical sign-off authority on legislation.  A lot of these concerns about the 100-to-1 ratio really are questions that Biden needs to answer for,” Sterling said in an interview this month.

A few of many prior recent related posts:

July 29, 2019 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Sunday, July 28, 2019

"The Agony & the Ecstasy of #MeToo: The Hidden Costs of Reliance on Carceral Politics"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith now available via SSRN. Here is its abstract:

Many have considered the conversation sparked by #metoo as a necessary and overdue interrogation of not only the spectre of common sexual harms in American society, but also the inadequacy of traditional mechanisms of accountability.  Against this backdrop, smaller-scale flashpoints have erupted over perceived inadequacy of punishment, such as the successful campaign to recall California judge Aaron Persky from the bench over what many saw as leniency in the widely- publicized case of People v. Brock Turner.  This paper analyzes the complex relationship between #metoo and the carceral state.

In arguably the most punitive nation on the planet — particularly when considering the breadth and scope of public post-conviction registries — I argue that seeking to address broad and systemic failures of accountability by advocating for more severe punishment paradoxically undermines the larger goals of #metoo to the extent that those goals are concerned with effectively challenging systems that perpetuate sexual harms.  An approach that harmonizes efforts to prevent sexual harms and bring those who cause harm to account without endorsement of carceral politics is explored.

July 28, 2019 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (0)

"After the First Step Act, we all have a role to play to build a society of second chances"

The title of this post is the headline of this notable new Fox News commentary authored by Craig DeRoche, who is the senior vice president of advocacy and public policy at Prison Fellowship. I recommend the piece in full, and here are excerpts:

FSA’s federal sentencing and prison system reforms still face key administrative and financial challenges.  Since May 2018, the Bureau of Prisons has lacked a permanent director.  The agency urgently needs a committed, effective leader to drive implementation of the reforms in the FSA. Five vacancies on the U.S. Sentencing Commission also mean that the sentencing reforms included in the FSA are yet to be incorporated into the sentencing guidelines used by federal judges.

In other significant ways, the FSA has yet to live up to its promise.  Evidence-based programming to reduce recidivism, a much-touted pillar of the bill, is not yet fully funded or implemented.  Further, the BOP has yet to allow faith-based prison programs with a proven record of recidivism-reduction, including Prison Fellowship, to function as reentry programs outside the chaplaincy.

As the largest Christian nonprofit serving prisoners and their families, we urge Congress to exercise its oversight and budgetary powers to ensure this historic achievement in federal criminal justice reform does not falter before its potential is realized.  And the public must let Congress know how important it is that these reforms be implemented fully and without unnecessary delay.

Ultimately, it will not be Congress, the Bureau of Prisons, or the White House that must live with the successes or failures of the FIRST STEP Act.  It will be the families with a loved one in federal prison, the incarcerated men and women working toward their second chance, and the countless neighborhoods to which they return after release.

The Bureau of Prisons is the largest single prison system in the United States.  The men and women behind its bars, despite the choices that got them there, have great, untapped potential.  They can return to society as better citizens, neighbors, employees, moms and dads. And when these former prisoners succeed, crime rates go down.

But it will take the full implementation of the FSA, putting the tools for success in the hands of those who need them. And it will take all of us — employers, faith communities, social service organizations, and ordinary citizens — doing our part to come alongside government, advocating for continued reform and building a society of second chances.

FSA was never meant to be the last step toward criminal justice reform.  Rather, in a time of marked political division, it is the first milestone, reminding us all what is possible when we choose to walk the path of restoration together.

July 28, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

One last reminder of two recent paper calls on SCOTUS and on the CSA

With deadlines now approaching, I figured today provided a good time to post a reminder about these two timely call for papers on subjects and projects in my world:

Seeking Commentaries for Federal Sentencing Reporter Issue on “The October 2018 SCOTUS Term and the Criminal Justice Work of its Members”

FSR is open and interested in publishing pieces addressing an array of topics relating to the current Supreme Court's work on the criminal side of its docket.  Commentaries can focus on a single case (or even a single opinion in a single case) or they can address a series of cases or a developing jurisprudence.  Contributors are also welcome to discuss the voting patterns and rulings of a particular Justice or of the Court as a whole.  How the Court selects criminal cases for review or what topics should garner the Justices' attention in the years ahead are also fitting topics.  In short, any engaging discussion of the work of the current Court on criminal justice matters will fit the bill.

FSR pieces are shorter and more lightly footnoted than traditional law review pieces; ideally, drafts are between 2000 and 5000 words with less than 50 footnotes.  Drafts need to be received on or before August 1 to ensure a timely publication, and should be sent to co-managing editors Douglas Berman (berman.43 @ osu.edu) and Steven Chanenson (chanenson @ law.villanova.edu) for consideration.

Call for Papers: "The Controlled Substances Act at 50 Years"

Although the federal drug war has been controversial since its inception, the CSA’s statutory framework defining how the federal government regulates the production, possession, and distribution of controlled substances has endured.  As we mark a half-century of drug policy under the CSA, the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law and the Drug Enforcement & Policy Center at The Ohio State University Moritz College of Law are together sponsoring a conference to look back on how the CSA has helped shape modern American drug laws and policies and to look forward toward the direction these laws could and should take in the next 50 years.

The conference, "The Controlled Substances Act at 50 Years," will take place on February 20-22, 2020, at Arizona State University Sandra Day O'Connor College of Law in Phoenix, Arizona.  As part of this conference we are soliciting papers for the February 22 scholarship workshop. Junior scholars are encouraged to submit, and will be paired with a senior scholar to review and discuss the paper.

Each paper should reflect on the past, present or future of the Controlled Substances Act and drug policy in the United States.  Participants should have a draft to discuss and circulate by February 10.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by March 15.  Final papers may range in length from 5,000 words to 20,000 words.  Deadline: Please submit a title and an abstract of no more than 300 words, to Suzanne.Stewart.1 @ asu.edu by August 15, 2019.  Accepted scholars will be notified by September 15, 2019.

July 28, 2019 in Recommended reading | Permalink | Comments (0)

Saturday, July 27, 2019

Is "comprehensive data" necessary and sufficient to "guide good policymaking" in the criminal justice system?

The question in the title of this post is prompted by this recent commentary in Governing authored by Chris Sprowls under the full headline "The Transparency the Criminal Justice System Needs: We can't have effective policymaking without comprehensive data. By mandating standardized data collection across the state, Florida is leading the way."  Here are excerpts:

What does justice in America look like?  Policymakers, law enforcement officers and academic researchers across the country have been struggling with that question, particularly as it applies to the local jails and state prisons where most offenders are held.  This issue differs from other public debates because all of us -- conservative or liberal, Republican or Democrat -- share a common goal: We all want to reduce unnecessary incarceration while maintaining public safety and freeing up tax dollars to be used for other public priorities.

Unfortunately, when it comes to incarceration, this debate has been long on passion and painfully short on facts.  That became clear two years ago, when an organization called Measures for Justice came to Florida to talk about criminal justice reform. What did criminal justice in Florida look like?  Was the system keeping communities safe? Were our tax dollars being used in efficient and effective ways?  Measures for Justice told us that we didn't know enough to answer those simple questions.

This rang true based on my experience as a gang and homicide prosecutor.  When you prosecute a case, you are focused on a snapshot of the system -- this victim, that perpetrator, these facts. It becomes very easy to lose sight of how a single case fits into the larger picture and how our actions compare to what prosecutors, judges and juries are doing in other jurisdictions.  Without access to data, we had no objective measures to use to validate our theories, disprove our assumptions or test our biases.  Even when we tried non-traditional solutions, such as the veterans court I helped to create in my state judicial circuit, we made decisions based more on instinct and observation than on information....

Florida is known as the Sunshine State, and we take that moniker seriously.  A year ago, the legislature passed a landmark criminal justice data transparency law that will go a long way toward tearing down institutional barriers and shedding light on a system that has mostly operated in the shadows.  The law mandates the standardized collection of common-sense data points in all of Florida's counties, and the legislature appropriated $1.67 million for its implementation.

This comprehensive data, spanning the criminal justice process from arrest to post-conviction, will be aggregated and made available to the public, for free, in one centralized repository.  The public, law enforcement, prosecutors, advocates and lawmakers will be able to compare the quality of justice across counties within the state.  We will finally have the data necessary to spot trends in the system and guide good policymaking.  In the this year's legislative session, lawmakers appropriated another $5.7 million to ensure that this is the nation's most ambitious pursuit of criminal justice transparency.

Other states are following suit with their own approaches to criminal justice transparency.  Colorado just passed a bill that requires jail administrators to collect data on individual cases and jail populations, and to report to a statewide agency quarterly.  Connecticut just passed a bill that requires prosecutorial data to be collected and shared alongside data germane to parole revocations.  These measures are a start in the right direction, as is a California bill making its way through the legislative process that would expand collection of criminal justice system data.   And more states are poised to follow Florida's lead.

With reliable, standardized and publicly available data, we will be able to make criminal justice policy decisions that are freer of assumptions, stereotypes and prejudice. We will be able to build the kind of criminal justice system that every American can have faith in. This is one issue where the truth really can set people free.

I share this author's affinity for "reliable, standardized and publicly available data" about the operation of our criminal justice system. But, to answer the question in the title of this post, I think that such data is necessary, but not sufficient, for good policymaking. We have really good data about the operation of death penalty systems, but few think we have use this data to drive policy in a good direction in many jurisdictions. Similarly, we have long had pretty good data about the federal sentencing system, but it is still one of the most punitive in the world.

July 27, 2019 in Data on sentencing, Detailed sentencing data | Permalink | Comments (1)

Friday, July 26, 2019

Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death

As noted in this prior post, AG William Barr has engineered a new federal execution protocol and the scheduling of executions for five federal death-row inmates in December 2019 and January 2020. Perhaps the only thing this moves mean for certain is litigation over whether the new protocol is sound and whether these executions will go forward. Here are links and excerpts from a couple articles previewing the litigation to come:

From BuzzFeed News, "The Trump Administration Is Bringing Back Federal Executions. It Will Immediately End Up In Court."  Excerpt:

Megan McCracken, a lawyer involved in the case and an expert on lethal injections, told BuzzFeed News that the litigation focuses on whether a particular execution protocol is constitutional under the Eighth Amendment’s prohibition against “cruel and unusual punishment” and also whether the process is otherwise lawful.  The lawsuit could examine, for instance, whether the Trump administration followed the proper procedures in adopting the new policy.  The administration did not go through the public rule-making process that agencies normally use in adopting regulations, which includes publishing details in advance and giving the public a chance to weigh in, before making its announcement Thursday.

“The devil is really in the details, and so all of the unknowns at this point are going to be the relevant issues for whether or not this protocol is constitutional, is lawful,” McCracken told BuzzFeed News.  “That is why the litigation that’s been on hold in federal court since 2011 ... will now need to proceed and give the court opportunity to review the procedure, the drugs, the execution teams, how they plan to administer it.”

A senior Justice Department official said that former attorney general Jeff Sessions directed the Federal Bureau of Prisons to explore options for resuming federal executions when he took office. The bureau recently concluded its review and submitted the proposal to Barr, who approved it, the official said.  The department’s press release said the new protocol was similar to single-drug procedures used in Georgia, Missouri, and Texas....

The prisoners involved in the pending litigation already had execution dates scheduled, which were put on hold.  The five men now scheduled for lethal injections aren’t parties to the case — defendants without execution dates hadn’t sought to join the case while it was delayed — but the Justice Department’s notice to the court Thursday means it expects the judge to review the new protocol.

From The Hill, "Opponents vow to challenge Justice decision on death penalty." Excerpt:

Human rights and anti-death penalty groups are vowing to challenge the Justice Department’s decision to resume the federal death penalty after a 15-year hiatus.... The groups predicted the decision would set off new lawsuits opposing the Trump administration, particularly given a decades-long move against capital punishment that has seen a number of states suspend the practice....

A number of groups, including the ACLU, have indicated that they plan to challenge the new policy, whether in court or through other means. “Under no circumstances should the Justice Department be allowed to rush through executions. The federal death penalty is defined by the same problems of racial bias, geographic disparities, prosecutorial misconduct, and junk science that have led to the decline in support for capital punishment nationwide,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in a statement....

Legal battles will likely center on how the policy is being implemented: Barr indicated in Thursday’s announcement that the protocol has already been formally adopted. But experts say that such a policy should have to go through a comment and notice period as required by the Administrative Procedure Act, and that sets it up to be challenged in court....

At least one of the planned executions is already being challenged by the death-row inmate it involves: Attorneys for Daniel Lewis Lee, whose execution is planned for Dec. 9 of this year, are speaking out against the move, saying that his conviction was secured despite the “demonstrated unreliability of the evidence.”

Lee’s attorney Morris Moon raised concerns about the DNA and other evidence used in the case, arguing that it “exemplifies many of the serious flaws in the federal death penalty system.” “Given the problems that undermine the fairness and reliability of Danny Lee’s conviction and death sentence, the Government should not move forward with his execution,” Moon said.

A lawyer for another one of the men, Purkey, also said Thursday that he shouldn’t be executed, claiming that “substandard representation permeated Mr. Purkey’s trial with errors and meant that his jury never had a full picture of his deep and sincere remorse or the personal circumstances that led to these tragic events.“

“The DOJ seeks to execute Mr. Purkey now, despite the myriad legal violations in his case and despite his advancing age and declining health,” attorney Rebecca Woodman said in a statement of her 67-year-old client. “The timing of this decision raises serious questions about the application of capital punishment under this administration."

As suggested by the title of this post, the really big question is whether this capital litigation will move swiftly or slowly. Obviously, the defendants now scheduled to be executed in less than six months would like this litigation to drag on for years. I assume the feds are eager and prepared to move this litigation along swiftly, but just how swiftly? Any ruling adverse to these defendants is sure to be appealed to a federal circuit court and to the Supreme Court. Is DOJ prepared to ask all these courts for expedited briefing schedules in order to try to preserve these scheduled execution dates?

Not mentioned in these pieces, but of great interest to me conceptually, is whether and how these defendants can constitutionally contest how AG Barr decided to put them in the front of the execution queue.  Notably, more than a dozen persons on federal death row were sentenced to death before Danny Lee was condemned in 2002, and more than a few were condemned more than half a decade before Lee.  Just why was he selected to be the first to be executed?  In addition, though less than half of federal death row is white (details here from DEPC), Danny Lee and two other of the condemned given the first execution dates are white. Did AG Barr think it might be politically useful to have more white defendants at the start of the execution queue, and if so wouldn't such thinking raise equal protection concerns?  (Because 8 of the 10 defendants sent to federal death row in the 1990s were black, including all three condemned way back in 1993, I think there is a circumstantial basis to believe that AG Barr may not have set executions dates chronologically because of concern that only black defendants would be scheduled to die first.  But is it constitutionally permissible for him to give race consideration this way?)

July 26, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Retributivist Reform of Collateral Consequences"

The title of this post is the title of this notable article authored by Brian Murray just posted to SSRN.  Here is its abstract:

This Article applies retributivist principles to discussions about collateral consequences reform.  Retributivist ideas relating to agency and responsibility, proportionality, personal and communal restoration, and the obligations and duties of the state, as well as the broader community, suggest suspicion of an expansive collateral consequences regime.  A retributivist assessment, cognizant of realities within the criminal system, reveals that many are overly punitive and disruptive of social order.

Legislatures that prioritize retribution as a justification for and constraint on punishment should think clearly about whether existing collateral consequences result in disproportionate suffering and, if so, reconsider them.  This includes the outsourcing of punishment to private actors.  Committed retributivist decision-makers within the system, such as line prosecutors, should consider how to approach the imposition of collateral consequences when acting during various phases of a prosecution.  Finally, retributivist constraints can inform whether the maintenance of criminal records by the state is justified, and for how long, as well as the scope of second-chance remedies like expungement.  These limitations could allow for robust procedural protections for petitioners for relief, shifting the burden of persuasion to the state. In short, retributive principles can be a useful tool for reform, helping to restore to ex-offenders what they deserve.

July 26, 2019 in Collateral consequences, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, July 25, 2019

Federal prison population, thanks in part to the FIRST STEP Act, hits lowest level in over 15 years

Federal prison populationEvery Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons. That page also has a chart and data on the total number of federal inmates for each fiscal year going back to 1980. A quick look at these data reveal that in FY 2013, the federal prison population hit a modern high of 219,298.

But this morning, we were down to "only" 177,619 inmates.  I put "only" in quotes because back in 1980, we had truly only 24,640 federal prisoners. But the last time there were fewer prisoners than this morning in federal facilities was way back in FY 2003. So I think it is quite notable and exciting to see such a decline over the last six years after such enormous growth the previous 33.

I have been following these numbers closely for a number of years, and I have been especially focused on week-to-week changes during the years of the Trump Administration because I feared that an uptick in federal prosecutions and various new sentencing directive begun under then-Attorney General Jeff Sessions might reverse the trend of prison population reduction that started during the second part of the Obama Administration.  But it seems that a lot of forces worked in various ways to kept the federal prison population at just over 180,000 inmates for much of the last three years.  And now, thanks to the FIRST STEP Act's "good time fix" finally kicking in, we are this week significantly below that 180,000 inmate threshold.

I would love to be able to predict that the FIRST STEP Act will ensure that the federal prison population keeps going down, but I am not sure that would be a sound prediction.  It is possible that the continued robust implementation of various components of the FIRST STEP Act will keep the downward trends moving.  But continued increases in the number of cases prosecutors by the Justice Department could get us back to an era of federal prison population growth (though that growth would likely be relatively modest).

July 25, 2019 in Data on sentencing, Prisons and prisoners | Permalink | Comments (1)

An effective critical review of some Prez candidates' new criminal justice reform plans

Over at The New Republic, Matt Ford has this effective discussion of some notable criminal justice reform proposals put forward by some notabe folks running for president. I recommend the full piece, which carries the full headline "Biden’s Big, Obvious Ideas for Criminal-Justice Reform: He and several other candidates have issued plans that appear ambitious only because America's system is so broken." Here are excerpts:

Taken as a whole, [Joe Biden's] plan is a tacit acknowledgement that the former vice president got it mostly wrong on criminal justice throughout his four-decade Senate career. Some of its positions, such decriminalizing marijuana and abolishing the death penalty, are specifically at odds with much of his legislative work in the 1980s and 1990s.  But it’s also among the most comprehensive packages proposed by any of the Democratic contenders.  Many of his rivals offer similar stances on sentencing reform and mass incarceration, but only South Bend Mayor Pete Buttigieg has articulated a more sweeping vision for reform.

It would be tempting to call these proposals radical, given that they would have a transformative effect on the American criminal-justice system.  But they’re only radical when viewed through the prism of establishment politics. Considered from a moral and policy perspective, they’re downright obvious.

Take solitary confinement.  Buttigieg says he would “abolish its prolonged use, bringing the United States in line with international human rights standards, which view the use of solitary confinement in excess of 15 days as per se torture.”  Biden says that he would also largely end the practice, “with very limited exceptions such as protecting the life of an imprisoned person.”  Booker, Harris, Warren, and four other Democratic senators co-sponsored a bill that would limit it to “the briefest term and under the least restrictive conditions possible.”

This would be a sharp break from the status quo in America, where tens of thousands of people are put in solitary confinement each year.  It would also bring national policy in line with the academic consensus that prolonged isolation can cause serious psychological damage.  As Buttigieg noted, the United Nations’ special rapporteur on torture recommends no more than 15 days in solitary and an absolute ban on its use for juveniles and people with mental illnesses.  The Supreme Court first acknowledged the immense toll of solitary confinement in an 1890 case, and Justice Anthony Kennedy warned in 2015 that the practice “literally drives men mad.”...

Another common theme is the intersection of mental illness and law enforcement.  Biden says he would “fund initiatives to partner mental health and substance use disorder experts, social workers, and disability advocates with police departments,” so that these people get the help they need rather than being locked up (or worse, shot dead). Buttigieg’s plan, by comparison, aims to remove police from the equation as much as possible.  He instead proposes investments in “community-based care [and] front-end social supports” that would “minimize the need for police officers to serve as de facto social workers and allow them to resume their primary role as guardians of public safety.”

Ensuring that people with mental illnesses get treated by health-care professionals instead of police officers seems like a no-brainer.  But in the U.S., the criminal-justice system doubles as the nation’s mental health-care provider of last resort.  Those without the ability or resources to obtain treatment instead find themselves funneled into jails and prisons, perhaps the least therapeutic environments imaginable....

There’s still room for improvement in the Democrats’ plans.  None of the major candidates discuss qualified-immunity reform in their plans.... Habeas corpus is another complicated but important area in need of reform....

It’s no critique of Biden, Buttigieg, or their rivals to note that they’re pushing for major changes to the way American criminal justice currently operates.  At the same time, it’s worth taking stock of how self-evident their solutions are.  Not throwing people in jail because they can’t pay court fees, and not condemning people to years or even decades of isolation, sound like baseline rules for a civilized society.  What’s truly radical is the harshness of the system that Biden and other politicians of his generation built, not the means by which it’s undone.

Prior recent related posts:

July 25, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (1)

"Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"

The title of this post is the title of this quite notable and possibly quite consequential news release from the Department of Justice this morning.  Here is the main text:

Attorney General William P. Barr has directed the Federal Bureau of Prisons (BOP) to adopt a proposed Addendum to the Federal Execution Protocol—clearing the way for the federal government to resume capital punishment after a nearly two decade lapse, and bringing justice to victims of the most horrific crimes. The Attorney General has further directed the Acting Director of the BOP, Hugh Hurwitz, to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society—children and the elderly.

“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Attorney General Barr said. “Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug—pentobarbital. Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.

Upon the Attorney General’s direction, Acting Director Hurwitz adopted the Addendum to the Federal Execution Protocol and, in accordance with 28 C.F.R. Part 26, scheduled executions for the following individuals:

  • Daniel Lewis Lee, a member of a white supremacist group, murdered a family of three, including an eight-year-old girl. After robbing and shooting the victims with a stun gun, Lee covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou. On May 4, 1999, a jury in the U.S. District Court for the Eastern District of Arkansas found Lee guilty of numerous offenses, including three counts of murder in aid of racketeering, and he was sentenced to death. Lee’s execution is scheduled to occur on Dec. 9, 2019.

  • Lezmond Mitchell stabbed to death a 63-year-old grandmother and forced her nine-year-old granddaughter to sit beside her lifeless body for a 30 to 40-mile drive. Mitchell then slit the girl’s throat twice, crushed her head with 20-pound rocks, and severed and buried both victims’ heads and hands. On May 8, 2003, a jury in the U.S. District Court for the District of Arizona found Mitchell guilty of numerous offenses, including first degree murder, felony murder, and carjacking resulting in murder, and he was sentenced to death. Mitchell’s execution is scheduled to occur on Dec. 11, 2019.

  • Wesley Ira Purkey violently raped and murdered a 16-year-old girl, and then dismembered, burned, and dumped the young girl’s body in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio and walked with a cane. On Nov. 5, 2003, a jury in the U.S. District Court for the Western District of Missouri found Purkey guilty of kidnapping a child resulting in the child’s death, and he was sentenced to death. Purkey’s execution is scheduled to occur on Dec. 13, 2019.

  • Alfred Bourgeois physically and emotionally tortured, sexually molested, and then beat to death his two-and-a-half-year-old daughter. On March 16, 2004, a jury in the U.S. District Court for the Southern District of Texas found Bourgeois guilty of multiple offenses, including murder, and he was sentenced to death. Bourgeois’ execution is scheduled to occur on Jan. 13, 2020.

  • Dustin Lee Honken shot and killed five people—two men who planned to testify against him and a single, working mother and her ten-year-old and six-year-old daughters. On Oct. 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous offenses, including five counts of murder during the course of a continuing criminal enterprise, and he was sentenced to death. Honken’s execution is scheduled to occur on Jan. 15, 2020.

Each of these inmates has exhausted their appellate and post-conviction remedies, and currently no legal impediments prevent their executions, which will take place at U.S. Penitentiary Terre Haute, Indiana. Additional executions will be scheduled at a later date.

As with so much Trump Administration activity, this news and activity is sure to generate litigation and lots of commentary. I expect I will myself have much to say in coming posts.

July 25, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (5)

Bernie Madoff seeks from Prez Trump a commutation of his 150-year federal prison sentence for massive Ponzi scheme

Notorious Ponzi schemer Bernie Madoff has served less than 10% his 150-year federal prison sentence, but at age 81 he understandably would like to find a way not to die behind bars.  This new NBC News piece, headlined "Bernie Madoff asks Trump to reduce his prison sentence for massive Ponzi scheme," reports on this high-profile offenders making a high-profile request for clemency from Prez Donald Trump.  Here are some details and lots of context:

Bernie Madoff is asking that President Donald Trump reduce his 150-year prison sentence — a a request that Madoff’s prosecutor promptly called “the very definition of chutzpah.”

Madoff, 81, is currently locked up in a federal prison in Butner, North Carolina, for orchestrating the largest Ponzi scheme in history.

The decades-long scam conducted while he headed Bernard L. Madoff Investment Securities in New York City swindled thousands of investors out of billions of dollars. Madoff, who pleaded guilty to 11 crimes in 2009, is not asking for a pardon from the president. Instead, he is requesting clemency from Trump in the form of a sentence commutation, or reduction, according to an application filed with the Justice Department.

A search of the Justice Department’s website shows that Madoff’s clemency request is “pending.”

If Trump’s previous opinions on Madoff and his family are any indication, the uber-crook faces long odds in winning an early release from prison. Trump, in his 2009 book “Think Like a Champion,” wrote that he said “no” to Madoff’s suggestion that he invest in his fund. “I had enough going on in my own businesses that I didn’t need to be associated or involved with his,” Trump wrote in his book, according to an article at the time in U.S. News & World Report.

In that same book, Trump said he knew a number of people who had invested their life savings with the scamster. “He is without a doubt a sleazebag and a scoundrel without par,” Trump wrote.

The New York Post, citing a source close to the Madoff family, two years ago reported that after Madoff’s conviction, Trump refused to rent his wife Ruth Madoff an apartment in his Manhattan buildings when she was looking for a new place to live.

The Justice Department would not reveal when Bernie Madoff’s request for clemency was submitted. But the department noted that such an application takes between one and three months to appear on the clemency section of the website. It is not known if Trump will consider the request, or when he might do so.

Madoff’s former lawyer, Ira Lee Sorkin, told CNBC he had no information about the request. The White House referred questions about Madoff’s bid for clemency to the Justice Department.

Marc Litt, who was the lead federal prosecutor in the criminal case against Madoff, to CNBC on Wednesday, “Bernard Madoff received a fair and just sentence – one that both appropriately punished him for decades of criminal conduct that caused devastating damage to tens of thousands of victims, and sent a loud and clear message to deter would-be fraudsters.”

“Madoff’s current request is the very definition of chutzpah,” said Litt, who currently is a partner at the law firm Wachtel Missry in New York, where his office overlooks the “Lipstick Building” that formerly housed Madoff’s company. “I’m confident that the career [Justice Department] attorneys responsible for evaluating such requests will reject it out of hand.”

DOJ statistics show that the department received 1,003 petitions for pardons and another 5,657 for sentence commutations that could have been considered by Trump since he was in the White House. Trump has granted 10 pardons and just four commutations.

His pardon recipients include controversial former Arizona Sheriff Joe Arpaio, Lewis “Scooter” Libby, former chief of staff for Vice President Dick Cheney, deceased boxer Jack Johnson, conservative pundit Dinesh D’Souza, and, most recently, former media mogul Conrad Black, who wrote a biography entitled “Donald J. Trump: A President Like No Other.”

Two other pardon recipients, Oregon ranchers Dwight Hammond and his son, Steven Hammond, also had their prison sentences for arson on federal lands commuted by Trump.

Madoff’s former longtime secretary also is asking Trump for a commutation of her six-year prison term for helping facilitate the Ponzi scheme, according to the Justice Department’s webpage. In January, a federal judge rejected a separate request by that secretary, Annette Bongiorno, 70, to be released into home confinement. Bongiorno has served nearly 4½ years of her prison sentence in a federal facility in New York state.

Peter Madoff, Bernie’s younger brother, pleaded guilty in 2012 to falsifying records at the Madoff investment firm, and to conspiracy to commit securities fraud. He was sentenced to 10 years in prison, and is due to be released in October 2020. There is no record of a clemency petition from Peter Madoff on the Justice Department’s website.

Ruth Madoff in May agreed to pay $594,000 and to surrender her remaining assets when she dies as part of a settlement of claims by Irving Picard, the court-appointed trustee who for years has tried to recoup money for Madoff’s customers. Ruth Madoff was never charged in connection with her husband’s crimes.

Madoff’s scheme originally was estimated to have lost upward of $65 billion for his investors. But Picard as of last November had recovered more than $13.3 billion of the approximately $17.5 billion of claims by customers who say they were swindled by Madoff’s scheme....

Madoff’s sons have both died since he was locked up. His oldest son, Mark, hanged himself in December 2010, on the second anniversary of his father’s confession to the Madoff family of his crimes. Madoff’s other son, Andrew, died in 2014 after a long battle with a rare form of cancer. Neither Andrew nor Mark were ever charged in connection with their father’s crimes.

July 25, 2019 in Celebrity sentencings, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, July 24, 2019

Eleventh Circuit panel finds federal prisoner can file a second or successive § 2255 based on SCOTUS Davis ruling

A helpful reader made sure I did not miss that an Eleventh Circuit panel issued an intricate ruling yesterday in In Re: Wissam Hammoud, No. 19-12458 (11th Cir. July 23, 2019) (available here), concerning the potential retroactive application of the Supreme Court's recent important vagueness ruling in Davis. Here is part of the opinion that highlight what it is intricate:

In his present application, Hammoud contends that his § 924(c) conviction in Count 5 is no longer constitutionally valid.  Specifically, Hammoud asserts that § 924(c)(3)(B)’s residual clause is unconstitutional, in light of the new rule of constitutional law set forth in Davis, Dimaya, and Johnson, and that his companion solicitation conviction in Count 3 could have qualified as a “crime of violence” only under § 924(c)’s now-defunct residual clause.

To determine whether Hammoud’s proposed Davis claim meets the statutory criteria, we must first address three preliminary issues: (1) whether Davis announced a new rule of constitutional law; (2) if so, whether Davis has been made retroactively applicable to cases on collateral review by the Supreme Court; and (3) whether Hammoud’s Davis claim is barred under our precedent in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016).  Only after addressing these issues may we consider the merits of Hammoud’s claim

This prisoner makes it through all of these hoops, so that this opinion ends: "Accordingly, because Hammoud has made a prima facie showing of the existence at least one of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby GRANTED as to his Davis claim regarding his § 924(c) conviction in Count 5."

July 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noticing the (inevitable?) contentions that the right people are in prison and the wrong people are getting out

At a time of considerable excitement about a range of criminal justice reforms (including leading Prez candidates seeking to outdo each other with ambitious reform proposals), and with the mainstream press giving coverage to many important human (and human-interest) stories surrounding the release of prisoners with the implementation of the FIRST STEP Act, it can be all too easy to forget that not everyone sees a need for criminal justice reform and not everyone is excited to see people released from prison.  These pieces caught my eye in recent days as providing useful examples that there are still plenty of folks eager to contend that the right people are in prison and the wrong people are getting out:

From the City Journal by Rafael Mangual, "Everything You Don’t Know About Mass Incarceration: Contrary to the popular narrative, most American prisoners belong behind bars."

From the Conservative Review by Daniel Horowitz, "Well, well: Criminal justice ‘reform’ wasn’t about ‘non-violent’ offenders after all"

From Fox News by Gregg Re, "Exclusive: Violent criminals and sex offenders released early due to 'First Step Act' legislation"

Some of these pieces are more responsible than others (e.g., the Fox News piece is particularly ugly for making much of the fact that all types of prisoners got the benefit of the "good time fix" that became effective last week). But all of these pieces highlight the kind of rhetoric and reasoning that it seems will be an inevitably enduring part of criminal justice conversations.

UPDATE: I have now seen these two notable responses to the last of the pieces noted above:

From Reason by C.J. Ciaramella, "Tucker Carlson's Unhinged Rant Against Prison Reform Makes Us All Dumber: Carlson claims the law 'allowed hundreds of violent criminals' back on the street. Here's what he didn't tell you."

From the Washington Examiner by Derek Cohen, "Tucker Carlson and John Kennedy get the First Step Act all wrong"

July 24, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, July 23, 2019

New Council on Criminal Justice launches as nonpartisan think tank and advocacy group

Counciloncj-logoMark Obbie at The Crime Report has this overview of a notable new group working toward criminal justice reform under the headline "Council on Criminal Justice Aims to Provide ‘Center of Gravity’ for Reform."  Here are excerpts:

A research and advocacy organization whose founder bills it as a new “center of gravity and crossroads” for criminal justice policy was set to launch Tuesday with a roster of prominent members from multiple disciplines across the ideological spectrum.

The Council on Criminal Justice will use its invitation-only membership to form ad hoc task forces that study and recommend model policies rooted in a data-driven, nonpartisan approach, with the goal of fixing a system that “is not producing enough safety or justice,” says Adam Gelb, the Council’s founder.

Gelb, who left Pew Charitable Trusts’ Public Safety Performance Project last August to begin recruiting members and donors, said the Council’s dual mission as a think tank and policy advocacy organization will give it a unique voice in the world of criminal justice. “There’s not any institution or organization right now that is a dedicated criminal justice organization” unaffiliated with any ideology and undiluted by partisan policy agendas, Gelb told The Crime Report....

The Council’s governing board of directors and advisory board of trustees will reflect the areas — many of them interconnected — that are now at the heart of current debates over justice reform: corrections officials and law enforcement managers, prosecutors and defense lawyers, violence interventionists and victim advocates, sentencing and reentry reformers, governors and the formerly incarcerated, and a host of others with current or former posts at all levels of government....

In the run-up to a briefing call today at 1 p.m. Eastern to announce the launch, the council already has begun its work.

A “federal priorities task force” headed by former Georgia Gov. Nathan Deal held its inaugural meeting July 15 at the Washington offices of King & Spalding, where Council trustee Sally Yates, the former deputy attorney general, is a partner. The Council’s first public event is a July 31 panel discussion in Washington on Thomas Abt’s new book about violence prevention.

Initial funding comes from patrons including Arnold Ventures, the Ford Foundation, the H.F. Guggenheim Foundation, HBO, the Joyce Foundations, New York Community Trust, and the Malcolm Hewitt Wiener Foundation. Gelb has set a five-year goal of raising $25 million....

In the run-up to this month’s launch, Gelb said he canvassed a broad cross-section of the field to make sure his notion of such a Council was “the right idea at the right time.”

The federal policy task force serves as an example of a pragmatic mindset that will guide the Council’s work. It will ask, he said, “What can the federal government do that would be most helpful, and that is actionable and realistic in the near to medium term?”

Thanks to the rare show of bipartisanship surrounding criminal justice reform, Gelb said, it’s reasonable to dream big. With the reforms achieved so far, he added, “We’re just scratching the surface of what needs to be done and what is politically possible.”

Over at Arnold Ventures one can find an extended Q&A with Adam Gelb with more about the Council at this link. The piece carries the headline "It’s Big. It’s Ambitious. It’s Bipartisan. A New Organization Seeks to Propel Criminal Justice Reform."

The still developing website for the Council on Criminal Justice is available here, with discussions of "OUR MISSION" and "OUR WORK" and "OUR MEMBERS."

July 23, 2019 in Who Sentences | Permalink | Comments (0)

"Who’s helping the 1.9 million women released from prisons and jails each year?"

The question in the title of this post is the title of this new Prison Policy Initiative publication.  Here is an excerpt (with links from the original):

As in other stages of the criminal justice system, most post-release policies and programs were created with the much larger male population in mind.  But research makes clear that women returning home have “a significantly higher need for services than men,” and that reentry supports should be responsive to the particular needs of justice-involved women:

  • Economic marginalization and poverty: As we’ve previously shown, formerly incarcerated women (especially women of color) have much higher rates of unemployment and homelessness, and are less likely to have a high school education, compared to formerly incarcerated men. These findings help explain why, in a 2012 National Institute of Justice (NIJ) study, 79% of women interviewed 30 days pre-release cited “employment, education, and life skills services” as their greatest area of need (followed closely by transition services). An earlier study (Holtfreder et al., 2004), found that poverty is the strongest predictor of recidivism among women, and “providing state‐sponsored support to address short‐term needs (e.g., housing) reduces the odds of recidivism by 83%” for poor women on probation and parole.

  • Housing: A 2017 Prisoner Reentry Institute (PRI) report identified homelessness and the lack of stable housing as the biggest problem facing women in the New York City justice system, noting that 80% of women at Rikers said they needed assistance finding housing upon discharge. A 2006 California study found that 75% of formerly incarcerated women surveyed had experienced homelessness as some point, and 41% were currently homeless. Women who can’t secure safe housing may return to abusive partners or family situations for housing and financial reasons – a point echoed in interviews with paroled women in a study by Brown and Bloom.

  • Trauma and gendered pathways to incarceration: The PRI report emphasizes the importance of gender-responsive and trauma-informedinterventions for reducing recidivism among women. According to that report, such interventions should: provide a safe, respectful environment; promote healthy relationships; address substance use, trauma, and mental health issues; provide women with opportunities to improve their socioeconomic conditions; establish “comprehensive and collaborative” community services; and prioritize women’s empowerment.

  • Family reunification: Most incarcerated women are mothers, and are frequently the primary caretakers of their children. The importance of family reunification – noted throughout the literature, by Carter et al.(2006), Brown and Bloom (2009), Wright, et al. (2012), the NIJ (2012), among others – cannot be overstated, especially given the trauma experienced by children when separated from a parent.

July 23, 2019 in Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice"

5cc204a166ae8f499c6db764-750-563As reported in this new Washington Post piece, headlined "Biden announces criminal justice policy sharply at odds with his ’94 crime law," the former Vice President and now Dem nominee front-runner Joe Biden has today release a big bold criminal justice reform plan that is new in various ways.  The Post piece provides some highlights and context, and it starts this way:

Former vice president Joe Biden, who has faced criticism from liberals for spearheading a 1994 law when he was a senator that cracked down on criminals, announced a proposal Tuesday that would eliminate the death penalty and embrace other changes at odds with that earlier legislation.

The Democratic presidential candidate would aim to pass legislation to abolish the death penalty at the federal level and offer incentives to states to follow suit, his new plan says. Convicted criminals who would face execution under current law would instead be sentenced to life in prison without the possibility of parole.

Biden’s plan also would decriminalize marijuana and expunge past cannabis-related convictions; end the disparity between sentences for powder and crack cocaine; and do away with all incarceration for drug use alone. In addition, it would create a $20 billion grant program to spur states to move from incarceration to crime prevention and eliminate mandatory-minimum sentences.

Attitudes about race and criminal justice have changed significantly over the years in both parties, partly as a result of decreasing crime rates. Democrats in particular have moved sharply away from ideas that give greater powers to the police and prosecutors, instead committing to addressing inequities that they say have damaged minority communities.

The release of Biden’s criminal justice plan comes about a week before the next round of televised Democratic primary debates, when his record is expected to come under renewed scrutiny. His support for the 1994 crime bill has been criticized by both Republicans and Democrats, who argue that it led to mass incarceration and tilted the system unfairly against African Americans.

Sen. Cory Booker (D-N.J.), one of Biden’s rivals for the Democratic nomination, offered a preview Monday morning of what is expected to come on the debate stage. “It’s not enough to tell us what you’re going to do for our communities, show us what you’ve done for the last 40 years,” Booker wrote on Twitter. “You created this system. We’ll dismantle it.”

The full "Biden Plan for Strengthening America’s Commitment to Justice" is available at this link, and it merits a read in full because it has a number of interesting elements. Here are a few excerpts from the start and from parts that caught my eye (without links and formatting):

Today, too many people are incarcerated in the United States — and too many of them are black and brown.  To build safe and healthy communities, we need to rethink who we’re sending to jail, how we treat those in jail, and how we help them get the health care, education, jobs, and housing they need to successfully rejoin society after they serve their time.  As president, Joe Biden will strengthen America’s commitment to justice and reform our criminal justice system.

The Biden Plan for Strengthening America’s Commitment to Justice is based on several core principles:

-- We can and must reduce the number of people incarcerated in this country while also reducing crime. No one should be incarcerated for drug use alone. Instead, they should be diverted to drug courts and treatment.  Reducing the number of incarcerated individuals will reduce federal spending on incarceration.  These savings should be reinvested in the communities impacted by mass incarceration....

-- Our criminal justice system cannot be just unless we root out the racial, gender, and income-based disparities in the system.... 

-- Our criminal justice system must be focused on redemption and rehabilitation. Making sure formerly incarcerated individuals have the opportunity to be productive members of our society is not only the right thing to do, it will also grow our economy....

-- Create a new $20 billion competitive grant program to spur states to shift from incarceration to prevention.  To accelerate criminal justice reform at the state and local levels, Biden will create a new grant program inspired by a proposal by the Brennan Center.  States, counties, and cities will receive funding to invest in efforts proven to reduce crime and incarceration, including efforts to address some of the factors like illiteracy and child abuse that are correlated with incarceration.  In order to receive this funding, states will have to eliminate mandatory minimums for non-violent crimes, institute earned credit programs, and take other steps to reduce incarceration rates without impacting public safety....

-- Establish an independent Task Force on Prosecutorial Discretion.  Law enforcement officials’ decisions regarding when to arrest, when to charge, and what charges to bring are critical decision-points in our criminal justice system.  The charges, for example, can dramatically impact not only what sentence someone ends up with but also whether they are compelled to take a plea bargain.  The Biden Administration will create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that results from arrest and charging decisions....

-- Eliminate mandatory minimums. Biden supports an end to mandatory minimums. As president, he will work for the passage of legislation to repeal mandatory minimums at the federal level. And, he will give states incentives to repeal their mandatory minimums.

-- End, once and for all, the federal crack and powder cocaine disparity.  The Obama-Biden Administration successfully narrowed the unjustified disparity between crack and powder cocaine sentences.  The Biden Administration will eliminate this disparity completely, as then-Senator Biden proposed in 2007.  And, Biden will ensure that this change is applied retroactively.

-- Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.  Biden believes no one should be in jail because of cannabis use.  As president, he will decriminalize cannabis use and automatically expunge prior convictions.  And, he will support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts.

-- End all incarceration for drug use alone and instead divert individuals to drug courts and treatment. Biden believes that no one should be imprisoned for the use of illegal drugs alone. Instead, Biden will require federal courts to divert these individuals to drug courts so they receive treatment to address their substance use disorder. He’ll incentivize states to put the same requirements in place. And, he’ll expand funding for federal, state, and local drug courts.

-- Eliminate the death penalty. Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.  These individuals should instead serve life sentences without probation or parole.

-- Use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes. President Obama used his clemency power more than any of the 10 prior presidents. Biden will continue this tradition and broadly use his clemency power for certain non-violent and drug crimes.

July 23, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

"Capital Punishment, 2017: Selected Findings"

The title of this post is the title of this just released report from the Bureau of Justice Statistics.  Though BJS is often the provided of the best available, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.  In any event, this new BJS report includes "statistics on the number of prisoners executed each year from 1977 through 2017, the number and race of prisoners under sentence of death at year-end 2017 by state, and the average elapsed time from sentence to execution by year from 1977 through 2017."  And the short document sets out on its initial page these "highlights":

July 23, 2019 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Spotlighting how some federal prosecutors are pushing back on some applications of FIRST STEP Act crack retroactivity

Reuters has this notable and lengthy new article on some skirmishes over the crack sentencing retroactivity piece of the FIRST STEP Act under the headline "As new U.S. law frees inmates, prosecutors seek to lock some back up." I recommend the piece in full, and here are excerpts:

Monae Davis walked out of prison on March 7, thanks to a new law that eased some of the harshest aspects of the United States’ war on drugs.  Now the U.S. Justice Department is trying to lock him back up.

As Davis, 44, looks for work and re-connects with his family, U.S. prosecutors are working to undo a federal judge’s decision that shaved six years off his 20-year prison sentence under the First Step Act, a sweeping criminal-justice reform signed into law by President Donald Trump last December.  “They’re prosecutors — it’s their job to make it hard on people,” he said. “Do I think it is right? No, it’s not fair.”

Even as thousands of prison inmates have been released by judges under the new law, federal prosecutors have fought scores of petitions for reduced sentences and are threatening to put more than a dozen inmates already released back behind bars, Reuters found in an analysis of these cases.  The reason: the Justice Department says the amount of drugs they handled was too large to qualify for a reduced sentence.

Davis, for example, reached a deal in 2009 with U.S. attorneys in western New York to plead guilty to selling 50 grams or more of crack, resulting in his 20-year sentence.  Under First Step guidelines, that carries a minimum sentence of five years, less than half the time he has already served.  But prosecutors say Davis should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms, which even under current guidelines is too high to qualify for a sentence reduction.

In a statement, the Justice Department said it is trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution.  The department said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved. “This is a fairness issue,” the department said....

More than 1,100 inmates have been released so far under this [Fair Sentencing Act retroactivity] provision in the new law, according to the Justice Department. (Another 3,100 here are being released under a separate provision that awards time off for good conduct.)

In most of the 1,100 sentence-reduction cases, U.S. prosecutors did not oppose the inmate’s release. But in at least 81 cases, Reuters found, Justice Department lawyers have tried — largely unsuccessfully so far — to keep offenders behind bars. They argue that judges should base their decision on the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.

The difference between the two amounts in these cases is often significant — and, depending on whether a judge agrees with prosecutors’ objections, can mean years of continued incarceration rather than immediate release.

Regional prosecutors’ offices, though they often enjoy great autonomy, have made it clear that they are operating on instructions from Washington. One prosecutor in western Virginia in April objected to nine sentence reductions she had previously not opposed, citing Justice Department guidelines.

The federal government has lost 73 of 81 cases in which the issue has arisen so far, according to the Reuters analysis. Prosecutors have appealed at least three of those decisions and indicated they intend to appeal 12 more. If they succeed, men like Davis would return to prison.

First Step Act advocates say the Justice Department is undercutting the intent of the law. “Many of these people have served in prison for five, 10, 15, 20 years and more. It’s time for them to be able to get on with their lives, and the notion the Department of Justice is just going to keep nagging at them and appealing these cases is not what we ever had in mind,” Democratic Senator Dick Durbin, one of the law’s authors, told Reuters.

July 23, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, July 22, 2019

A fitting tribute to the work of Mark Kleiman

A huge figure in the criminal justice reform and drug policy space passed away yesterday, and German Lopez at Vox put together this effective substantive tribute (with links) under the headline "Mark Kleiman, who changed the way we think about crime and drugs, has died at 68: RIP Mark Kleiman, one of our best criminal justice scholars and my friend."  Here is how it gets started:

Mark Kleiman, an intellectual giant in criminal justice and drug policy, died at 68 years old on Sunday due to complications from a kidney transplant, his sister confirmed.

Kleiman, who last worked as a public policy professor at New York University’s Marron Institute, was known for his imaginative approach to policy. He had a knack for breaking through simplified public debates and finding alternative answers to complex problems. As Stanford drug policy expert Keith Humphreys put it, Kleiman “was one of the most creative criminal policy experts of his generation.”

With marijuana legalization, for instance, Kleiman was known for rejecting what he described as a false choice between criminal prohibition and commercial legalization — arguing that there was a middle ground that would end prohibition while preventing the rise of “Big Marijuana,” an entity he, and other experts, feared will market pot irresponsibly just as the alcohol, tobacco, and opioid industries have.

Kleiman also helped research breakthrough approaches for tacking crime and drug misuse. His study with Angela Hawken on Hawaii’s Opportunity Probation with Enforcement (HOPE) program helped demonstrate the principles of “swift, certain, and fair” punishment — a concept that, when properly implemented, uses prison sentences much shorter than those we have today to deter people from criminal behavior, with high success rates. It suggested there was a policy approach that could lead to both less incarceration and less crime.

July 22, 2019 in Recommended reading, Who Sentences | Permalink | Comments (0)

An interesting accounting of the impact and import of Justice Stevens' sentencing jurisprudence

Stevens_cited-a2jThis new Law360 article, headlined "How Justice Stevens Protected The Rights Of The Accused," reviews a number the late Justice John Paul Stevens' biggest criminal justice opinion. Unsurprisingly, both Apprendi and Booker make the list, and even a third sentencing opinion makes the list of Justice Stevens' most cited cases. Here are excerpts from this piece:

Along with his humble tenor and penchant for bow ties, the late U.S. Supreme Court Justice John Paul Stevens also built a reputation as a defender of the rights of individuals caught in the criminal justice system and of access to the courts.

Over his nearly 35 years on the bench, the retired justice, who died Tuesday at the age of 99, crafted several opinions that either broadened individual rights within the justice system or protected those rights from assault.

From chipping away at capital punishment efforts in complicated situations to defending habeas corpus during wartime, Justice Stevens did not veer away from pulling together majority opinions on difficult cases. "I think he was very much an advocate and at the forefront of the court in terms of access to justice," Erwin Chemerinsky, dean of the UC Berkeley School of Law and founder of the Civil Justice Research Initiative, told Law360.

Three of the justice's most cited opinions deal with access to justice or criminal justice reform issues, according to Law360's analysis of data from Ravel Law....

After his retirement in 2010, Justice Stevens continued to be a regular advocate for criminal justice reforms and access to justice issues. In 2011, the American Bar Association's Death Penalty Representation Project named an award after him and the justice continued to speak out on the issues that had preoccupied him on the bench....

Here are five times Stevens came to the defense of access to justice.

Williams v. Taylor...

Apprendi v. New Jersey...

"The New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system," said Stevens' opinion. Stevens' opinion additionally said that while trial practices can change over time, they must keep to the principles underlying the constitution's right to a jury and for that jury to have all the facts necessary to make their decision beyond a reasonable doubt.

For Shon Hopwood, a Georgetown University law professor, the case inspired him to join the profession after his own conviction for bank robbery. "His fine opinion in Apprendi v. New Jersey was what got me started studying law from a prison law library," Hopwood said in a social media post on Thursday.

Rasul v. Bush...

United States v. Booker

"We recognize ... that in some cases jury factfinding may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial — a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment — has always outweighed the interest in concluding trials swiftly," Justice Stevens said in his opinion.

Baze v. Rees

Prior related post:

July 22, 2019 in Who Sentences | Permalink | Comments (1)

Sunday, July 21, 2019

"The Vanishing of Federal Sentencing Decisions"

The title of this post is the title of this notable recent Forbes commentary authored by Brian Jacobs. I recommend the full piece, and here are excerpts:

In civil cases, the most important decisions that federal district judges make typically are recorded in the form of written opinions that are collected in the Federal Supplement, widely available for free online, and available in searchable databases on Westlaw and LexisNexis, among other places.  In criminal cases, by contrast, some of the most important decisions that federal district judges make — regarding what sentences to impose — are, in the vast majority of cases, lost in the ether of PACER, where they are available only to those who know precisely where to look.  This state of affairs is far from ideal for prosecutors, defense attorneys, and district judges, and it is patently unfair for criminal defendants themselves.

The scale of this problem is hard to overstate. Federal district judges make an enormous number of sentencing decisions every year. In the 12-month period ending September 30, 2018, the Administrative Office of the U.S. Courts reported that 71,550 (about 90%) of the 79,704 defendants whose cases were disposed of in federal courts entered guilty pleas, and another 1,559 were convicted at trial.  As a result, in just this single one-year period, the United States Sentencing Commission reported that there were close to 70,000 federal criminal cases in which an offender was sentenced....

District court decisions resolving sentencing disputes are typically delivered orally and memorialized only in the transcript of the sentencing proceeding itself, where judges must “state in open court the reasons for [the] imposition of the particular sentence.”  (See 18 U.S.C. § 3553(c).) (Judges also are required to complete the form entitled “Statement of Reasons.”)  Rarely do judges reduce their sentencing decisions to written opinions.  A Westlaw search of opinions published between October 2017 and September 30, 2018 (the U.S. Sentencing Commission’s last fiscal year) referencing 18 U.S.C. § 3553(a) resulted in approximately 600 federal district court opinions and 1,300 appellate decisions.  Thus, an attorney or defendant trying to research a given Guidelines issue, for example — such as the weight that district judges have given to the loss amount in fraud cases under Section 2B1.1 of the Guidelines in the last year — cannot simply run a Westlaw search in a database of district court cases for “2B1.1.”  Such a search would turn up but a small fraction of the relevant material.

Although not memorialized in written opinions, many federal sentencing proceedings are transcribed by a court reporter, and most of those transcripts are ultimately posted to PACER, an electronic service that allows public access to case and docket information for federal court proceedings for a fee.  Users can conduct simple searches on PACER by party name, judge, or keyword, for example.  Thanks to PACER, a well-heeled defendant could, for example, with substantial effort and expense, pull and review all of the sentencings that have taken place before one particular judge, or that have been handled by one particular prosecutor.  Such a search, however, would again merely scratch the surface of potentially relevant decisions (which are accruing at a rate of 70,000 a year), and would be a cumbersome, expensive, and ineffective way to mine sentencing transcripts for persuasive authority on any particular issue.  PACER does not, unfortunately, allow for searches of the text of posted documents, and there is no other way to perform such a search in a comprehensive way.

It thus remains the case today that despite technological advancements, sentencing decisions are not nearly as readily accessible as other sorts of judicial decisions, and this vanishing of federal sentences serves nobody’s interest.  A defendant facing a sentencing in a federal criminal case — one of the most important days of his or her life — is hampered in his or her ability to effectively research the hundreds of thousands of federal sentencings that have taken place in our country in recent years, any one of which might have the sort of persuasive power that could make a difference.  If this defendant had access to a searchable database of transcripts of the 70,000 sentencings that take place each year in federal district courts, perhaps the defendant would be able to find the handful of on-point and persuasive cases to highlight for the sentencing judge.  In addition, perhaps the defendant could identify and highlight trends in sentencings around the country that, in the aggregate, would persuade the sentencing court to exercise its large amount of discretion in a particular way. Because the widespread availability of federal sentencing transcripts would benefit prosecutors, defendants, and judges alike, there is a long-term need for a readily accessible searchable database of transcripts of all federal sentencings, capable of handling complex queries....

[I]t is well past time for a searchable database of federal sentencing transcripts similar to the database of district court opinions available on Westlaw and LexisNexis.  The availability of such transcripts is important to ensure, among other things, that all criminal defendants, regardless of resources, are able to present effective sentencing arguments.

July 21, 2019 in Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2)