Tuesday, October 8, 2019

US Attorney in college admission scandal makes plain how trial penalty works even for celebrity actresses

In various settings, we often hear expression of concern that celebrity criminal defendants may receive a different form of justice than us regular folk.  But this recent article reporting comments by the US Attorney in charge of the college admission prosecutions, headlined "Lori Loughlin faces 'substantially higher' prison sentence than Felicity Huffman if convicted, U.S. attorney confirms," provides a useful and usefully candid reminder that celebrity defendants are subject to being penalized for exercising their trial rights just like all other defendants. Here are excerpts from the piece (with two sentences emphasized):

Andrew Lelling, whose office is prosecuting the Operation Varsity Blues case, gave a rare interview over the weekend praising "classy" Felicity Huffman ahead of prison. He also confirmed that Lori Loughlin faces a "substantially higher" amount of time behind bars if convicted.

The Boston prosecutor, who was appointed U.S. attorney by President Trump in 2017, was asked why he proposed a prison sentence of only one-month for Huffman, who pleaded guilty to one charge of fraud conspiracy. During an interview with On the Record on WCVB Channel 5, Lelling called Huffman "probably the least culpable of the defendants who we've charged in that case."

"One of the things we looked at was money involved. She spent about $15,000 to have her daughter get a fake SAT score," he explained. "She took responsibility almost immediately.  She was contrite, did not try to minimize her conduct. I think she handled it in a very classy way and so, at the end of the day, we thought the one-month was proportional."

Ultimately, Huffman was sentenced to 14 days in prison, 250 hours of community service and a fine of $30,000. "I think the two weeks she actually got was also reasonable, we were happy with that," Lelling said. "I think it was a thoughtful sentence."

Lelling said a person receiving a lesser sentence after pleading guilty is "almost always" the outcome. "If people take responsibility for their conduct and they take responsibility for their conduct early on, then it will probably go better for them," he shared.  "What I value in the Felicity Huffman sentence is that I think it sent a clear message to the other parents involved that there really is a good chance that if you're convicted of the offense, you are going to go to prison for some period of time because the least culpable defendant who took responsibility right away, even she got prison."

Lelling was asked specifically about Lori Loughlin and her husband, Mossimo Giannulli, who are accused of paying around $500,000 to get their daughters into USC as crew recruits, even though neither rowed. He confirmed what legal experts speculated to Yahoo Entertainment last month — that Loughlin will spend more time in prison than Huffman if convicted.

"If she's convicted... we would probably ask for a higher sentence for her than we did for Felicity Huffman," Lelling said. "I can't tell you exactly what that would be. The longer the case goes, let's say she goes through to trial, if it is after trial, certainly, we would ask for something substantially higher. If she resolved it before trial, something lower than that."

Loughlin and Giannulli are some of the parents implicated in the college admissions scandal that are fighting the charges against them. They pleaded not guilty to two charges: conspiracy to commit money laundering; and conspiracy to commit mail and wire fraud and honest services mail and wire fraud.  They were hit with an additional charge when they didn't agree to a plea deal....

Loughlin, Giannulli and the other parents fighting federal charges are due back in court in January.

I do not want to unduly bash US Attorney Lelling for his candor here, especially because I think he merits praise for a lot of his work in these cases (and especially for only seeking a month in prison for Felicity Huffman).  Moreover, he does a reasonable job giving a reasonable spin to the best arguments for a "plea discount" at sentencing when he talks of the importance of being contrite and of the sentencing value of having defendants "take responsibility for their conduct early on." 

But I find it grating when US Attorney Lelling says his office will see a "substantially higher" sentence the "longer the case goes" for Lori Loughlin; it suggests that more is at work here than just rewarding remorse for those who are contrite.  Of course, to those familiar with the day-to-day realities of the criminal justice system, there is no surprise to seeing that potential exercise trial rights coming with a potentially significant sentencing price.  In the end, US Attorney Lelling is just being candid and honest about how the system really works for both celebrity and non-celebrity defendants.  But the fact that the trial penalty is so common and impacts more than just commoners still does not make it any less distasteful.

October 8, 2019 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Reviewing SCOTUS arguments on insanity defense and non-unanimous juries

As noted in this recent post, yesterday the Supreme Court kicked off its new Term with oral arguments in two very interesting criminal justice cases: Kahler v. Kansas on whether the Constitution permits a state to abolish the insanity defense, and Ramos v. Louisiana on whether the 14th Amendment fully incorporates for states the Sixth Amendment's guarantee of a unanimous jury verdict.  Here are the oral argument transcripts in Kahler and in Ramos.

Based on various reviews of the arguments, it sounds as though the defendant is likely to prevail in Ramos and perhaps not in Kahler.  Here is a round-up of some reviews:

From the AP, "Court seems ready to require unanimous juries as term opens"

From SCOTUSblog, "Argument analysis: Justices open new term with questions and concerns about insanity defense"

From SCOTUSblog, "Argument analysis: Justices weigh constitutionality of non-unanimous jury rule"

From Slate, "The Supreme Court Looks Poised to Outlaw Split Jury Verdicts"

From USA Today, "Supreme Court, trying to remain above the partisan fray, opens 2019 term with a debate about insanity"

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

"Offline: Challenging Internet and Social Media Bans for Individuals on Supervision for Sex Offenses"

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

Tens of thousands of people across the United States are subject to bans on their Internet and social media access due to sex offense convictions.  This Article explains why, even for those on parole and probation, such bans are frequently over-broad, imposed on the wrong people, and are now ripe for challenge in light of the Supreme Court’s 8-0 decision in Packingham v. North Carolina

The first flaw with these bans is their mismatch between crime and condition.  They are imposed on individuals whose criminal records have no relation to online predatory activity or manipulation of minors.  The second flaw is their extreme over-breadth.  Rather than merely proscribing speech with minors or access to certain online forums, they cordon off the Internet itself, ostracizing offenders to an offline society.  While these flaws rendered Internet and social media bans constitutionally problematic before the Packingham decision, the Supreme Court’s imprimatur on free speech for individuals convicted of sex offenses could — and should — lead the way to future legal challenges of these bans.

October 8, 2019 in Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (1)

Monday, October 7, 2019

Series of state court stays slows down Texas machinery of death

Texas has completed seven executions in 2019 through the end of September, and it had four more executions scheduled for October. But, as of late last week, state courts in Texas have halted the executions of three of the condemned prisoners who were facing October execution dates. Here are links to press reports on these three stays:

From the Texas Tribune, "Texas court halts the execution of Stephen Barbee to consider U.S. Supreme Court precedent: The Texas Court of Criminal Appeals issued a stay in Barbee's case. He was scheduled to be executed Oct. 2."

From the Texas Tribune, "Judge halts execution for man convicted of killing two Henderson County deputies: Randall Mays was scheduled to be executed Oct. 16, but the judge removed the death warrant amid questions that Mays may not be mentally competent to be put to death."

From the Dallas Morning News, "Texas Seven's Randy Halprin has execution stayed after attorneys allege judge was anti-Semite: Halprin, one of seven men who escaped from the John B. Connally Unit on Dec. 13, 2000, was scheduled to die Thursday for his role in the slaying of Irving police officer Aubrey Hawkins." 

Because Texas has five more executions already scheduled for the rest of 2019, the state is still likely on pace for another double-digit execution year. But it now seems likely that the state will have fewer executions than the 13 it had last year, and it is now possible that the US as a whole will end up with fewer total executions in 2019 than occurred in 2018.

October 7, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another update on Chicago "stash-house sting" litigation showcasing feds ugly drug war tactics

Via a series of posts last year, I was able to report updates from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this 2017 post, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic. 

I now see that the Chicago Tribune has this new lengthy article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison." which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full, and here are excerpts:

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison. He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decadeslong prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary.

Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.

The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling. While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

While the cases hadn’t been thrown out of court, Alison Siegler, the Federal Criminal Justice Clinic’s founder, noted in an April report to the 7th Circuit Bar Association that "the U.S. Attorney’s Office and the ATF have entirely stopped bringing stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere in the country.”

Some prior related posts:

October 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

So many cert denials, and lots of Davis and Rehaif GVRs, in first big SCOTUS order list of OT19

The Supreme Court this morning has released this 78-page order list that resolves lots and lots of the cases that pile up at the Court during its summer recess.  The list of cases in which certiorari has been denied runs dozens of pages, and I was a bit surprised that this order list does not have any statements from any Justices about any of these denials.  (In all likelihood, any cases the Justices thought debatable have been relisted for possible comment in later order lists.)

The order list start with a long list of cases in which "certiorari is granted, [t]he judgment is vacated, and the case is remanded" to the relevant Court of Appeals." The vase majority of the GVRs cite the Supreme Court's work in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here) and Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here).  These GVRs are not surprising, as I wondered aloud in this post back in June about the likely mess and challenge that Davis and Rehaif  surely presented for lower courts.  As is their custom, the Justices are eager to send cases back to the lower courts to start the clean up effort.

October 7, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, October 6, 2019

Lots of SCOTUS previews as a new Term starts with a criminal bang

Tomorrow morning is the first Monday in October, which means the start of Supreme Court oral arguments kicking off a new Term for the Court. This ABA Journal piece, headlined "SCOTUS opens new term with criminal law cases addressing insanity defense and unanimous juries," highlights how the Term start with extra intrigue for criminal justice fans. This piece starts this way:

The U.S. Supreme Court has several blockbuster cases in its new term — on gay and transgender rights, federal immigration enforcement and gun regulation. But before it gets to any of those, the court on the first day of the term will take up two criminal law cases raising significant questions, even though only a handful of states are affected by each.

In Kahler v. Kansas, the first case up for argument on Oct. 7, the question is whether the U.S. Constitution permits a state to abolish the insanity defense. Only four states besides Kansas—Alaska, Idaho, Montana, and Utah—do not recognize that defense.

In Ramos v. Louisiana, the justices will consider whether the 14th Amendment fully incorporates against the states the Sixth Amendment’s guarantee of a unanimous jury verdict.

“Both of these cases speak to a larger lesson,” says Brian W. Stull, a senior staff attorney with the American Civil Liberties Union. “The court, with justices on the left, center, and right, has been vigilant in insisting at a minimum on the common-law protections that defendants enjoyed at time of the founding.”

SCOTUSblog has these previews of Kahler and Ramos:

Bloomberg Law has this preview article looking at a number of the criminal cases for the term under the headline "Bridgegate, D.C. Sniper Feature in Packed SCOTUS Criminal Term."  Here is how it starts:

An action-packed U.S. Supreme Court term kicks off Oct. 7, and the criminal docket has a little something for everyone—the insanity defense, the D.C. sniper, the death penalty, the Fourth Amendment, and the New Jersey corruption saga known as “Bridgegate.”

These disputes and others mark the latest crime and punishment tests for the Roberts Court, which, after Justice Brett Kavanaugh replaced Justice Anthony Kennedy, is on more solid conservative footing.

But criminal cases can scramble the usual 5-4 line-ups, and in Kavanaugh’s first full term — Justice Neil Gorsuch’s third — court watchers are eager to see how the justices tackle these weighty questions.

October 6, 2019 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Association of Restrictive Housing During Incarceration With Mortality After Release"

The title of this post is the title of this disconcerting new research by multiple authored just published via JAMA Network Open.  Here is its abstract:

Importance Restrictive housing, otherwise known as solitary confinement, during incarceration is associated with poor health outcomes.

Objective To characterize the association of restrictive housing with reincarceration and mortality after release.

Design, Setting, and Participants This retrospective cohort study included 229 274 individuals who were incarcerated and released from the North Carolina prison system from January 2000 to December 2015.  Incarceration data were matched with death records from January 2000 to December 2016.  Covariates included age, number of prior incarcerations, type of conviction, mental health treatment recommended or received, number of days served in the most recent sentence, sex, and race.  Data analysis was conducted from August 2018 to May 2019.

Exposures Restrictive housing during incarceration.

Main Outcomes and Measures Mortality (all-cause, opioid overdose, homicide, and suicide) and reincarceration.

Results From 2000 to 2015, 229 274 people (197 656 [86.2%] men; 92 677 [40.4%] white individuals; median [interquartile range (IQR)] age, 32 years [26-42]), were released 398 158 times from the state prison system in North Carolina.  Those who spent time in restrictive housing had a median (IQR) age of 30 (24-38) years and a median (IQR) sentence length of 382 (180-1010) days; 84 272 (90.3%) were men, and 59 482 (63.7%) were nonwhite individuals.  During 130 551 of 387 913 incarcerations (33.7%) people were placed in restrictive housing.  Compared with individuals who were incarcerated and not placed in restrictive housing, those who spent any time in restrictive housing were more likely to die in the first year after release (hazard ratio [HR], 1.24; 95% CI 1.12-1.38), especially from suicide (HR, 1.78; 95% CI, 1.19-2.67) and homicide (HR, 1.54; 95% CI, 1.24-1.91). They were also more likely to die of an opioid overdose in the first 2 weeks after release (HR, 2.27; 95% CI, 1.16-4.43) and to become reincarcerated (HR, 2.16; 95% CI, 1.99-2.34).

Conclusions and Relevance This study suggests that exposure to restrictive housing is associated with an increased risk of death during community reentry.  These findings are important in the context of ongoing debates about the harms of restrictive housing, indicating a need to find alternatives to its use and flagging restrictive housing as an important risk factor during community reentry.

October 6, 2019 in Detailed sentencing data, Prisons and prisoners | Permalink | Comments (0)

Encouraging new data on reduced arrests for low-level offenses (while national crime rates continue to decline)

This new Wall Street Journal article gets my week off to an encouraging start.  The full headline of the piece sets for the essentials: "Arrests for Low-Level Crimes Are Plummeting, and the Experts Are Flummoxed: Data collected from U.S. cities revealed declines in driving and alcohol-related violations, disorderly conduct, loitering and prostitution." Here are excerpts:

Major police departments around the country are arresting fewer people for minor crimes, according to a growing body of criminal justice data. New statistical studies show a deep, yearslong decline in misdemeanor cases across New York and California and in cities throughout other regions, with arrests of young black men falling dramatically.

New York City’s misdemeanor arrest totals have fallen by half since peaking in 2010, with rates of black arrests sinking to their lowest point since 1990. The arrest rate for black men in St. Louis fell by 80% from 2005 to 2017, a period that saw steep declines in simple assault and drug-related offenses. In Durham, N.C., arrest rates for blacks fell by nearly 50% between 2006 and 2016.  While racial disparities in enforcement persist, researchers say they are surprised by the downward misdemeanor trend, which pushes against ingrained assumptions about overpolicing in urban areas.

At the moment, experts can only speculate about what’s behind the decline.  It is expected to be the subject of more study that could yield better understanding in the future. Some say the falling arrest rates signal a fundamental shift in crime prevention. The shrinking misdemeanor system, they say, is evidence that police departments are pulling back on sweeping quality-of-life enforcement and focusing instead on “hot spots,” neighborhood strips and streets with clusters of gun violence and gang activity.

The decline, some experts say, could also be driven by technologies like the internet and mobile phones that help to keep social interaction off the streets and inside homes. The growing decriminalization and legalization of marijuana has also contributed, they say.  “The enforcement powers of the police are being used far less often,” said Jeremy Travis, a former president of John Jay College of Criminal Justice in Manhattan. It is a “very deep reset of the fundamental relationship between police and public.”

Millions of Americans are swept into the misdemeanor system every year, but only recently have scholars sought to dig into the numbers of low-level crime. Criminal data and research have focused on violent felonies like rape and murder and more serious drug-dealing offenses, while statistics on misdemeanors have been notoriously inconsistent and spotty.

Historically, few jurisdictions made it possible to track how many people were arrested for crimes like turnstile jumping, disorderly conduct, marijuana possession, shoplifting, trespassing, drunken-driving and fist fight assaults.  Federal investigations into policing practices in Ferguson, Mo., and Baltimore, and scrutiny of aggressive policing tactics like “stop-and-frisk,” helped to raise the visibility of misdemeanor justice and its impact on poor minority communities.  Most defendants charged with petty offenses serve little or no time behind bars but pay court fines and fees or get their cases conditionally dismissed.

Researchers saw misdemeanors as another unchecked, racially unbalanced police power creating barriers to housing, employment and education.  With millions of dollars in grants, a network of scholars led by John Jay collected data from several cities and released reports over the past year.  Other studies revealed similar patterns.  A December report by the Public Policy Institute of California found that misdemeanor rates in California declined by close to 60% between 1989 and 2016.  Los Angeles police made 112,570 misdemeanor arrests in 2008 and 60,063 by 2017, largely driven by declines in driving and alcohol-related offenses, according to John Jay’s research network.

A forthcoming paper by law professors at George Mason University and the University of Georgia also found sizable arrest declines in rural Virginia, San Antonio and other jurisdictions.  Other indications include shrinking caseloads reported by the National Center for State Courts and arrest tallies by the Federal Bureau of Investigation showing steady declines in disorderly conduct, drunkenness, prostitution and loitering violations....

Compared with the felony system, misdemeanor enforcement is much less sensitive to actual crime rates and more influenced by changing political and cultural winds, says Alexandra Natapoff, a University of California-Irvine law professor.

In addition to the great news that we are finally gathering better data on misdemeanor systems, it is even greater news that we are using it less. In this post some months ago, I spotlighted LawProf Alexandra Natapoff's terrific book highlighting how much harm and punishment can come with the misdemeanor process.  And, though not mentioned in the WSJ article, I think it critical to note that the reduction in low-level arrests has come at the same time as a great reduction in violent and property crimes over the last decade (details here on latest FBI crime data).  I think we all ought to hope and aspire for a world with less crime and less punishment, and that seems to be what we are starting to achieve in recent years.

October 6, 2019 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

Saturday, October 5, 2019

Making a righteous call for Prez candidates to walk the walk, and not just talk the talk, on criminal justice reform

This new USA Today commentary, authored by four criminal justice reform advocates who have all been previously incarcerated, astutely stresses that candidates for political office can and should do more than just talk about criminal justice reform in order to show real commitment on justice reform. Authored by Daryl Atkinson, Norris Henderson, DeAnna Hoskins and Vivian Nixon, I recommend the piece in full. Here are extended excerpts:

An examination of the criminal justice reform proposals of the Democratic presidential candidates shows similarities in policy priorities. Most, if not all, favor ending cash bail, prohibiting private companies from operating prisons, legalizing marijuana and reducing or eliminating mandatory minimum sentences.

Yet, nagging questions remain: Who is fully committed to fixing these problems? In other words, which candidate will take action when they stop campaigning and start governing?

It’s important to examine more than policy positions and take a look at candidates in their entirety.  Some have prioritized criminal justice reform throughout their careers. Others have announced policies during this campaign that are at odds with their legislative votes.  Others still have made controversial decisions while they worked within the criminal justice system. But most have not been heavily involved in the movement to end mass incarceration....

At long last, the American public has started to recognize the harmful impact of tough-on-crime policies.  It is no longer a risk for Democrats to say that mass incarceration must end — a testament to the tireless work and dedication of thousands of advocates and practitioners, many of whom have a criminal record or have returned to their communities after incarceration.  It also is not politically audacious to issue position papers on eliminating mandatory minimum sentences or providing better services for people reentering society.  In this day and age, the fact that we cannot punish our way into public safety has been definitively concluded.

But those running for the highest office in the country must go above and beyond these safe ideas if they want to show that they’re committed to more than just political rhetoric.  After all, even the current president has claimed to be a criminal justice reformer.  To set themselves apart from politics as usual, candidates must speak directly to the constituencies that have the most at stake on every issue, including mass incarceration.

There are plenty of criminal justice reform groups out there just like ours, and activists are waiting for the opportunity to talk to candidates about policy. Democrats have given time to groups that deal with gun-control issues and that are led by survivors of mass shootings and family members who have lost loved ones.  Beto O'Rourke of Texas met with a little over a dozen veterans in South Carolina to talk about issues that affect them.  Sen. Elizabeth Warren spent time in Philadelphia taking questions from teachers....

We are formerly incarcerated.  But we are citizens.  We vote.  And, we are influencers in progressive movements that address mass incarceration and related issues.  Candidates who commit to direct engagement with us will send a message of hope to energize an army of supporters whose numbers have unfortunately and regrettably grown way too big.

October 5, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

"Infrequency as Constitutional Infirmity"

The title of this post is the title of this paper which was recently posted to SSRN and authored by Sam Kamin.  From its abstract:

In this Article, I argue that the infrequency with which the death penalty is currently being imposed in this country is one of the principal reasons that courts should intervene to prevent it.  Infrequency is the fatal flaw in the contemporary imposition of the death penalty for at least three reasons.  First, and most obviously, it demonstrates that the penalty has been rejected by contemporary society, and that as a result, its imposition is a cruel and unusual punishment under the Eighth Amendment.  Second, a punishment imposed so infrequently-and wantonly-can serve no valid penological interest.  The argument that the death penalty is necessary to deter crime, incapacitate offenders, or offer retribution to victims and society more generally is undercut by the fact that the percentage of all killers who receive the penalty is vanishingly small.  And finally, the infrequency with which the death penalty is currently imposed demonstrates that the fundamental problem identified by the Supreme Court in Furman v. Georgia in 1972 has not yet been solved.  Then as now, there is no principled way of distinguishing the very few cases in which the death penalty is imposed from the much larger pool of those eligible to receive the law's ultimate penalty.

October 5, 2019 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, October 4, 2019

Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal

As reported in this Los Angeles Times piece, "Agustin Huneeus Jr., a prominent Napa Valley winemaker until his arrest in the college admissions scandal, was sentenced Friday to five months in prison for paying to rig his daughter’s school entrance exam and trying to sneak her into USC as a bogus athlete."  Here is more:

The sentence is the latest handed down against a slew of wealthy, influential parents who opted to plead guilty to charges that they conspired with William “Rick” Singer, a college admissions consultant at the center of the scam, to fabricate test scores and bypass the admissions process at elite schools.  Singer, too, has pleaded guilty to several felonies and is cooperating with prosecutors in their cases against his alleged accomplices.  He awaits sentencing.

With her decision, U.S. District Judge Indira Talwani dealt more harshly with Huneeus than she did with other parents sentenced so far, but stopped well short of the 15-month sentence that federal prosecutors had said was an appropriate penalty.  Lawyers for Huneeus, meanwhile, had conceded before his sentencing that the 53-year-old father of three should not avoid prison altogether, but asked Talwani for just two months behind bars.  Huneeus, they said, already had been punished badly by the loss of his company and public humiliation. Along with incarceration, Talwani ordered Huneeus to pay a $100,000 fine and serve 500 hours of community service.

Huneeus hurriedly stepped down in March as chief executive of Huneeus Vinters, a company his parents built, after being named as one of the dozens of parents charged in the scam. He pleaded guilty soon after, admitting he paid $100,000 to buy into the admissions scheme and was primed to pony up another $200,000 before authorities went public with their case.

Prosecutors had argued in court filings that even in a case marked by the greed and entitlement of exceptionally rich and privileged families, Huneeus stood out for his brazen, unabashed foray into the scam and his efforts to avail himself of all of Singer’s illegal offerings.  “Huneeus’s crime was calculated and carefully planned,” wrote Assistant U.S. Atty. Justin O’Connell in a memo to Talwani.  “From the outset … Huneeus wanted to know exactly how the fraud worked, proposed ways to make it more effective, and demanded Singer’s attention. He did all this while acknowledging to Singer that what they were doing was wrong, that the scheme could ‘blow up in [his] face.’”

Of the 11 parents who have pleaded guilty in the case, O’Connell underscored that only Huneeus paid Singer both to inflate his daughter’s SAT score and secure her a spot at USC by allegedly bribing members of the school’s athletic department....

In arguing for a light sentence, lawyers for Huneeus emphasized in a court filing that Huneeus’ daughter did not enroll at USC and, so, did not end up taking a spot at the selective school from a more deserving applicant.  But after watching Talwani in recent weeks rebuff defense attorneys for other parents who argued their clients should be spared time in prison altogether, Huneeus’ defense team accepted he was destined for incarceration and tried instead to mitigate the punishment by underscoring Huneeus’ clean track record and reputation for fairness and kindness among people who worked for him.

Until his downfall, Huneeus ran his family’s company, which owns several brands of wine and made news in 2016 when it sold one of its popular labels for a reported $285 million to another company. He relinquished control of the company in the days after his arrest over concerns his legal troubles could put the company’s license to produce wine in jeopardy.

Huneeus himself struck a tone of contrition in a letter to the judge, saying he accepted responsibility for his crime.  “I am looking forward to my sentencing so I can start to put this behind me.  I want to pay my dues and feel clean again. This has been the most consequential experience I have ever had to overcome and it is self-inflicted,” he wrote.

On the same day Huneeus learned his fate, California Gov. Gavin Newsom signed three bills in response to the college admissions scandal, including a mandate that any “admission by exception” to the state’s many public campuses be approved by multiple university administrators....  Newsom also gave his signature to a measure that prevents those found guilty in the admissions scandal from getting tax deductions for payments they made to Singer, which he often funneled through a sham charity.  The third measure approved by Newsom requires the California State University and University of California systems, as well as independent universities, to report to the Legislature whether they provide any form of preferential treatment in admissions to applicants on the basis of their relationships to donors or alumni.

Prior related posts:

October 4, 2019 in Celebrity sentencings, Who Sentences | Permalink | Comments (0)

"Inmate Responses to Experiences With Court System Procedural and Distributive Justice"

The title of this post is the title of this recently published work authored by Mike Vuolo, Bradley Wright and Sadé Lindsay.  Here is the piece's abstract and concluding paragraph:

According to criminal justice theories, perceptions of procedural and distributive justice drive opinions on fairness, subsequently affecting behavior. We contend that such perceptions also affect the emotional states of incarcerated individuals, identifying court experiences as the focus of our study.  Through fieldwork at a male maximum-security prison, we find that inmates expressed negative emotional responses associated with three factors: trial, public defenders, and appeals.  Participants described perceived fairness through personal comparisons to alternative procedures and outcomes often connected to socioeconomic resources and related perceptions to emotions such as frustration, regret, resentment, and hopelessness. We situate our findings within theories of fairness and inmate adjustment research....

The effects continue well beyond the prison walls, however, as incarceration has lasting effects on health (Massoglia, 2008).  This study demonstrates that the court system experience warrants further examination as a source of negative emotions and, potentially, prisoner adjustment to incarceration.  The three factors outlined in our research illustrate that processes and procedures, occurring both prior to and during imprisonment, had enduring effects on incarcerated persons.  These aspects of the court system and the relationship to negative emotions could easily go overlooked, as prisoners’ voices are seldom heard. Our fieldwork allowed for a unique approach to studying this hard-to reach-population (Wacquant, 2002).  This investigation demonstrated that such voices are important in efforts to reform certain aspects of the court system in a manner that would reduce distress and alleviate some of the negative aspects of corrections and its enduring effects. These psychological effects are all the more important as increasing numbers of prisoners return home in an era of mass incarceration.

October 4, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3)

SCOTUS gets back to work with short order list granting review in new cases, including a federal criminal statutory/constitutional matter

The US Supreme Court this morning released this short order list, in which the Justices grant certiorari review in five cases (through two sets are consolidated). Criminal justice fans may be most interest in the granted case of US v. Sineneng-Smith, which SCOTUSblog summarizes this way:

Issue: Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

But the grants sure to get the most attention today and for months to come emerge from Louisiana cases that now bring the issue of abortion back to the Court:

Issue: Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

October 4, 2019 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Mass Supreme Judicial Court vacates manslaughter conviction based on merely providing heroin to person who overdosed

As reported in this local article, the top court in Massachusetts has vacated "the involuntary manslaughter conviction of a man who provided drugs in a fatal overdose."  Here is the context and commentary from the press piece: 

Jesse Carrillo was convicted two years ago for the 2013 fatal heroin overdose of fellow UMass Amherst student Eric Sinacori, who was 20 when he died. On Thursday, the state's Supreme Judicial Court vacated Carrillo's manslaughter conviction, arguing that the prosecution did not provide sufficient evidence that Carrillo knew the heroin would cause a fatal overdose.

Northwestern District Attorney David Sullivan said in a statement that it's "disheartening that the Supreme Judicial Court does not believe heroin use carries a high probability of substantial harm or death." He added: "The families who have lost loved ones to this brutal epidemic would surely disagree with the Court’s analysis, as do we.”

But Northeastern University law professor Leo Beletsky says if the case were upheld, it would have set a dangerous precedent. "If the government could charge every person who shares drugs with someone who subsequently dies, the way that the government had argued this case previously would essentially turn those friends, those partners, those co-users into potential murderers," he said.

The full unanimous ruling of the Massachusetts Supreme Judicial Court is available at this link, and it my be of particular interest to law profs and 1Ls now getting to the homicide unit in their CrimLaw classes (and to many others). Here are excerpts from the opinion's introduction: 

To find a defendant guilty of involuntary manslaughter caused by wanton or reckless conduct, our case law requires proof beyond a reasonable doubt that the defendant engaged in conduct that creates "a high degree of likelihood that substantial harm will result to another."  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).  Selling or giving heroin to another person may be wanton or reckless conduct where, under the circumstances, there is a high degree of likelihood that the person will suffer substantial harm, such as an overdose or death, from the use of those drugs.  And in many cases the circumstances surrounding the distribution of heroin will permit a rational finder of fact to find beyond a reasonable doubt that the transfer of heroin created a high degree of likelihood of substantial harm, such as an overdose or death. But not every case will present circumstances that make such conduct "wanton or reckless." This is one such case.

We conclude that the mere possibility that the transfer of heroin will result in an overdose does not suffice to meet the standard of wanton or reckless conduct under our law. The Commonwealth must introduce evidence showing that, considering the totality of the particular circumstances, the defendant knew or should have known that his or her conduct created a high degree of likelihood of substantial harm, such as an overdose or death.

Here, no evidence was presented during the Commonwealth's case-in-chief that would permit a reasonable jury to conclude that the inherent possibility of substantial harm arising from the use of heroin -- which is present in any distribution of heroin -- had been increased by specific circumstances to create a high degree of likelihood of substantial harm.  For instance, the Commonwealth did not present evidence that the defendant knew or should have known that the heroin was unusually potent or laced with fentanyl; evidence that Sinacori was particularly vulnerable to an overdose because of his age, use of other drugs, or prior overdoses; or evidence that the defendant knew or should have known that Sinacori had overdosed but failed to seek help.  In the absence of any such evidence, we conclude that the Commonwealth did not meet its burden of producing sufficient evidence for a reasonable jury to conclude that the defendant's conduct in this case created a high degree of likelihood that Sinacori would suffer substantial harm, such as an overdose or death, from his use of the heroin.  The defendant's conviction of involuntary manslaughter must therefore be vacated, and a required finding of not guilty entered.

As many of my former students likely recall, the Welansky case is still one of my favorite cases to teach during 1L Criminal Law. I find it fascinating to see that tragic case and the legal precedent that it set still of great importance 75 years later in very different sad setting.

October 4, 2019 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, October 3, 2019

BigLaw partner gets one month federal time as latest parent sentenced in college admissions scandal

As reported in this CNN piece, a "former high-powered attorney at an international law firm was sentenced Thursday to one month in prison for paying $75,000 to falsely boost his daughter's ACT score as part of the college admissions scam." Here is more:

Gordon Caplan, 53, is the fourth parent to be sentenced to prison time in the scam that has led to charges against 35 parents.  Prosecutors had asked that Caplan be sentenced to eight months in prison.

The broad admissions scam consisted of a test-cheating scheme and an athlete recruitment scheme, and those who participated in the test-cheating scheme have gotten lower sentences. The actress Felicity Huffman, who paid $15,000 to participate in the test-cheating scheme, was sentenced to two weeks in prison.  Meanwhile, Stephen Semprevivo and Devin Sloane, who paid to get their children into prominent universities under the guise that they were recruited athletes, were each sentenced to four months in prison. Sixteen parents, including Caplan, have pleaded guilty to fraud conspiracy charges. 

Caplan pleaded guilty in May to fraud conspiracy and admitted to paying a fake charity run by scam mastermind Rick Singer to facilitate cheating on his daughter's ACT exam.  As part of the scheme, a paid proctor corrected answers after Caplan's daughter had completed the test.

Before his arrest, Caplan was a partner and co-chairman of the Willkie Farr & Gallagher law firm.  In 2018, The American Lawyer magazine named him one of its "Dealmakers of the Year" for guiding a series of transactions between Hudson's Bay Co., Rhône Capital and the workspace startup, WeWork. But Caplan left the law firm as a result of his involvement in the scam, the firm said in April. His license to practice law going forward is also at risk.

The Attorney Grievance Committee in New York began disciplinary proceedings against him in July, and Caplan has consented to the suspension of his law license pending those proceedings, according to a sentencing memorandum.  "To put the matter bluntly, Gordon's professional life has been destroyed," his attorney, Joshua Levy, wrote in the memorandum.

Prior related posts:

October 3, 2019 in Celebrity sentencings, Offender Characteristics | Permalink | Comments (0)

"The Eighth Amendment Power to Discriminate"

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

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences.  While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing.  The expansive discretion that the requirement confers on overwhelmingly white juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.

While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion.  This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it.  It proposes that states employ specific jury instructions that (1) require jurors to consider certain types of evidence as legally mitigating, (2) address the historically racist application of the death penalty, and (3) permit unfettered discretion solely in the direction of leniency.  Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.

October 3, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

US District Judge rejects feds lawsuit to enjoin operation of proposed safe injection site for opioid users in Philadelphia

As reported in this NPR piece, a federal judge "has ruled that a Philadelphia nonprofit group's plan to open the first site in the U.S. where people can use illegal opioids under medical supervision does not violate federal drug laws, delivering a major setback to Justice Department lawyers who launched a legal challenge to block the facility." Here is more about the important ruling:

U.S. District Judge Gerald McHugh ruled Wednesday that Safehouse's plan to allow people to bring in their own drugs and use them in a medical facility to help combat fatal overdoses does not violate the Controlled Substances Act. "The ultimate goal of Safehouse's proposed operation is to reduce drug use, not facilitate it," McHugh wrote in his opinion, which represents the first legal decision about whether supervised injection sites can be legally permissible under U.S. law.

The decision means that the country's first supervised injection site, or what advocates call an "overdose prevention site," can go forward. Justice Department prosecutors had sued to block the site, calling the proposal "in-your-face illegal activity."

While local officials from New York to San Francisco praised the decision, the federal government is expected to appeal. "The Department of Justice remains committed to preventing illegal drug injection sites from opening," said Bill McSwain, U.S. Attorney for the eastern district of Pennsylvania. "Today's opinion is merely the first step in a much longer legal process that will play out. This case is obviously far from over."

Most studies show that the supervised injection sites can drive down fatal overdoses. These sites are credited with restricting the spread of infectious diseases. And advocates say the facilities help move more people into treatment. The American Medical Association has endorsed launching supervised injection site pilot programs.

Ronda Goldfein, who is Safehouse's vice president and secretary, said winning judicial approval is a major feat for advocates of the proposed site, which also has the backing of top city officials and former Pennsylvania governor Ed Rendell. "Philadelphia is being devastated. We've lost about three people a day" to opioid overdoses, Goldfein said. "And we say we had to do something better and we couldn't sit back and let that death toll rise. And the court agreed with us."...

Supervised injection sites exist in Canada and Europe, but no such site has gotten legal permission to open in the U.S. Cities like New York, Denver and Seattle have been publicly debating similar proposals, but many were waiting for the outcome of the court battle in Philadelphia. Attorneys general from Washington, D.C., and seven states including Michigan, New Mexico and Oregon, in addition to city leaders in five cities, urged the court before the decision to rule in favor of Safehouse.

Legal hurdles are not Safehouse's only obstacles. The facility is planning to launch in the Philadelphia neighborhood of Kensington, which has been ravaged by the opioid crisis, but some neighbors have resisted welcoming an injection site into their community. Community activist Amanda Fury said the court decision will not change the hardened battle lines over this issue there. "I've never been in the business of trying to change people's minds on this," said Fury, who supports the measure but admits that residents are divided....

In court, meanwhile, prosecutors have contended that the plan violated a provision of the Controlled Substances Act that makes it illegal to own a property where drugs are being used — known as "the crack house statute." But backers of Safehouse argued the law was outdated and not written to prevent the opening of a medical facility aimed at saving lives in the midst of the opioid crisis....

On Wednesday, in a move that surprised observers, McHugh agreed. He wrote that there "is no support for the view that Congress meant to criminalize projects such as that proposed by Safehouse." McHugh rejected federal prosecutor's view that this was an open-and-shut case of a proposal clearly violating federal drug statutes. Instead, he noted that the purpose of Safehouse is not to provide a place for people to engage in unlawful activity. "Viewed objectively, what Safehouse proposes is far closer to the harm reduction strategies expressly endorsed by Congress," McHugh wrote.

The full opinion in US v. Safehouse is available at this link, and it makes for a very interesting read. These part of the opinion's introduction highlights how notions of judicial modesty in application of criminal law moved Judge McHugh:

As discussed below, courts must exercise extreme care in discerning the objective sought by Congress in enacting a statute.  That said, having reviewed materials I consider appropriate in discerning what Congress sought to address in enacting § 856(a)(2), there is no support for the view that Congress meant to criminalize projects such as that proposed by Safehouse.  Although the language, taken to its broadest extent, can certainly be interpreted to apply to Safehouse’s proposed safe injection site, to attribute such meaning to the legislators who adopted the language is illusory.  Safe injection sites were not considered by Congress and could not have been, because their use as a possible harm reduction strategy among opioid users had not yet entered public discourse.  Particularly in the area of criminal law, it is the province of Congress to determine what is worthy of sanction.  A line of authority dating back to Chief Justice John Marshall cautions courts against claiming power that properly rests with the legislative branch.  A responsible use of judicial power under those circumstances is to decline to expand the scope of criminal liability under the statute and allow Congress to address the issue.

The US Deputy Attorney General released this statement following this ruling, which states "The Department is disappointed in the Court’s ruling and will take all available steps to pursue further judicial review. Any attempt to open illicit drug injection sites in other jurisdictions while this case is pending will continue to be met with immediate action by the Department."

October 3, 2019 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Wednesday, October 2, 2019

"An Ode to the Categorical Approach"

The title of this post is the title of this new paper just posted to SSRN and authored by Amit Jain and Phillip Warren. Here is its abstract:

In United States v. Davis, a narrow majority of the U.S. Supreme Court adhered to the so-called “categorical approach” for determining which criminal convictions trigger additional federal penalties. But this approach, which requires courts to consider an individual’s crimes as defined by law instead of the facts of the person’s conduct, has increasingly come under fire.  An ever-louder chorus of jurists argues that the approach is unworkable and allows individuals with criminal records to escape harsh consequences that can include decades of added incarceration, registration as a “sex offender,” or mandatory deportation.

These complaints are overstated.  The categorical approach — a time-weathered component of American jurisprudence for over a century — is far from the nonsensical nightmare its naysayers portray it to be.  Although the aforementioned federal penalties compromise the states’ historic role in defining and prosecuting crimes, in a world where such penalties exist, the categorical approach respects statutory text, avoids administrative challenges, protects Sixth Amendment rights, advances fair notice, and promotes uniformity.  In addition, the approach offers an under-recognized federalist counterweight to the undue expansion of federal and state criminal law.  In particular, it gives state leaders a unique, subtle incentive to ensure that the most serious crimes focus on the most serious conduct, lest these crimes cease to qualify as predicates for federal penalties.

Given that federal law attaches drastic consequences to crimes that states, localities, tribes, and territories have already punished, the categorical approach is good federalist policy.  Until and unless these added consequences are abolished, courts should continue to apply the approach, and the Court’s fealty to categorical analysis is cause for celebration.

October 2, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Texas jury imposes 10 year prison term on Amber Guyger for murdering Botham Jean

As reported in this prior post, yesterday a Dallas County jury convicted Amber Guyger of murdering Botham Jean in his apartment last year in a high-profile case that has made headlines for many months.  Today the case made another headline when, as reported here, the jury returned its sentence: "Amber Guyger sentenced to 10 years for murdering neighbor Botham Jean."  Here are some of the jury sentencing details:

Amber Guyger, the former Dallas police officer convicted of murder for fatally shooting her unarmed neighbor in his apartment, was sentenced Wednesday to 10 years in prison. Guyger, 31, learned her fate after a sentencing hearing that included emotional testimony from the family of victim Botham Jean and revelations that she shared racist and offensive texts and social media posts.

Prosecutors had asked jurors to sentence Guyger to at least 28 years — symbolic because Jean would have turned 28 last Sunday.

Guyger did not testify during her sentencing, but has the opportunity to appeal the conviction in the unique case that has gripped the city of Dallas and shattered the idea that law-abiding citizens can be safe in their own homes.

The jury was allowed to consider whether Jean's death was the result of "sudden passion," which meant Guyger acted in the heat of the moment. It carried a lesser sentence of two to 20 years behind bars....

During the sentencing hearing Wednesday, Guyger's mother, Karen Guyger, 66, testified and said that her then-boyfriend had molested Guyger when she was 6. She said she reported it to the police and he was arrested. NBC News was unable to immediately learn the outcome of the case.

Karen Guyger added that her daughter was distraught after killing Jean. "She feels very bad about it," Karen Guyger said through tears.

Dallas County prosecutors built a case through Guyger's police disciplinary records, texts and social media posts to speak to her character and argue she is undeserving of a lenient sentence.

Jurors were shown three Pinterest posts that Guyger had saved to her account and commented on. They included the picture of a military sniper with text that read: "Stay low, go fast; kill first, die last; one shot, one kill; no luck, all skill." In another Pinterest post, Guyger commented under a picture of a Minion from the movie "Despicable Me": "People are so ungrateful. No one ever thanks me for having the patience not to kill them," the comment read.

New texts were also shown to jurors between Guyger and her married work partner, Officer Martin Rivera, with whom she had been having an affair. Prosecutors had revealed their sexually explicit texts during the trial, although the defense downplayed them, saying the two were already "ramping down" their relationship by the time the shooting occurred. Rivera texted in March 2018 to Guyger: "Damn I was at this area with 5 different black officers !!! Not racist but damn." She responded: "Not racist but just have a different way of working and it shows."

Guyger texted with another officer last year about the Martin Luther King Jr. parade in Dallas. "When does this end lol," the officer wrote to Guyger. "When MLK is dead … oh wait …," she joked.

Two days before Guyger fatally shot Jean, she texted with someone who had adopted a German Shepherd. The dog's owner wrote of the animal: "Although she may be racist." Guyger responded, "It's okay .. I'm the same," and later added: "I hate everything and everyone but y'all."

During the sentencing phase, defense attorney Toby Shook asked the jury to think about how Guyger helped others as an officer, and largely glossed over the derogatory texts that prosecutors had introduced earlier. "Through these horrible series of events, she went into his apartment by mistake," Shook said. "She pulled that trigger in an instant — an instant she will regret for the rest of her life. ... She didn't go there seeking to kill him."...

The jury, made up of mostly women and people of color, deliberated for about five hours to convict Guyger and has been sequestered during the trial, which began Sept. 23. Guyger was taken into custody at the end of the first day of the sentencing phase, which started after the verdict was read Tuesday. She was booked into the Dallas County jail.

Prior related post:

October 2, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

"Creating Model Legislative Relief For People With Past Convictions"

Download (26)The title of this post is the title of this notable recent report from the folks at the Alliance for Safety and Justice.  I highly recommend the report in full, and here is part of its executive summary:

Across the United States, popular support for criminal justice reform is at an all-time high. More and more Americans of all walks of life agree that the “tough-on-crime” era resulted in bloated, costly and ineffective corrections practices.  Today, everyday people and public officials across the political spectrum support a balanced approach to public safety — one that emphasizes crime prevention and rehabilitation to stop the cycle of crime.

As states re-examine their crime policies, it is critical to also review the lifetime impacts of criminal records in preventing full rehabilitation for millions of Americans.  Meaningful rehabilitation provides people that complete their sentences and remain crime-free redemption and full re-integration into the economy, our communities and civic society. Despite growing support for rehabilitation as a primary goal of corrections, few Americans will ever become rehabilitated because criminal records prevent inclusion.

More than 70 million Americans have a criminal record.  Long after they’ve paid their debts to society, many will find themselves caught in a labyrinth of legal prohibitions and barriers that have little to do with public safety.  These restrictions place undue burdens on millions of people and impose an invisible, life-long sentence that can make it difficult to get back to work, find housing, or support their families. These barriers can also make it harder—not easier—to stay out of the cycle of crime.

As a nation, we’ve only begun to grapple with the impacts of these barriers on our society.  These restrictions prevent, millions of people with past convictions from getting work, which in turn may lead to families in living in unstable housing or contribute to homelessness, and to millions of children growing up with parents that cannot fully contribute to their families, or our economy.

Some states have taken steps to limit the debilitating impacts of criminal records on economic productivity and family stability after a person’s time is served.  But most current law, policies and processes fall short of bringing widespread relief....

This brief offers guidelines for legislation that would begin to make rehabilitation meaningful and provide relief for people with past convictions so they can contribute to the economy and society as a whole....

The first step for policymakers interested in moving toward a more evidence-based, safety-centered legal model for removing the barriers imposed by past arrests or convictions is to ask key questions about how current laws, policies and practices are working.

October 2, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

After murder conviction, Texas jury on to sentencing phase in trial of Amber Guyger for killing Botham Jean

As reported in this Dallas Morning News piece, headlined "Amber Guyger convicted of murder for killing Botham Jean; sentencing phase to continue Wednesday," a high-profile trial resulted in the murder verdict and then immediately shifted into a jury sentencing phase. Here are the basics:

A Dallas County jury on Tuesday convicted Amber Guyger of murdering Botham Jean in his apartment last year, in a trial that renewed international outrage over white police officers killing unarmed black men.

Jean's mother raised her arms in exultation as cheers broke out in the hallway outside the courtroom when the verdict was announced shortly after 10:30 a.m., following five hours of deliberation by the jury....

Guyger was booked into the Dallas County jail for the night about 4:45 p.m., not long after court recessed for the day. Testimony in the punishment phase of Guyger's trial will continue at 9:30 a.m. Wednesday. In Texas, murder carries a sentence of five to 99 years or life in prison. She isn't eligible for probation.

Guyger, 31, fatally shot 26-year-old Jean in his apartment last year. She was off-duty but still in uniform when she shot Jean with her service weapon. She had said she mistook his apartment for her own and thought Jean was a burglar. She is the first Dallas officer convicted of murder since the 1970s.

Jurors deliberated for three hours Monday after the prosecution and Guyger's defense presented closing arguments. They quickly delivered a verdict after two more hours Tuesday morning....

About 2:30 p.m., Allison Jean took the stand [at the start of the penalty phase], telling the jury how her middle child, Botham, was the "glue" between his older sister, Allisa, and younger brother, Brandt, who are separated by a 20-year age difference. "Botham was also this take charge type of person, so he was always giving advice both to Allisa and to Brandt," she said.

Sobbing at times, the proud mother talked about Botham Jean's many interests, from rugby to a lifelong love for singing. Several jurors turned their chairs toward Allison Jean as she testified. When she grew emotional, one juror turned his head away and stared at the wall for a few minutes. Then, he looked back at Jean.

Guyger stared straight ahead throughout the testimony Tuesday afternoon. She didn't appear to look at the witness stand or at pictures displayed on three large screens in the courtroom of Jean smiling with family members and friends.

Prosecutor LaQuita Long showed the jury photos of Botham Jean growing up, including a photo with him and his grandmother at his high school graduation. In the photo, he's beaming, holding a trophy that his mother said was given to the top student for discipline and academic excellence....

[Allisa] Findley, Botham Jean's older sister, also testified, telling jurors how her family has been changed forever since her brother died. She bowed her head as videos of her brother singing at a worship service played on the screen overhead.

Because I have not been able to follow the trial closely, I am hesitant to even guess what kind of sentence the jury will now bring back in this case. I am tempted to predict it will be a sentence somewhat closer to the statutory minimum of 5 years than to the statutory maximum of 99 years, but one never quite knows with juries.

October 2, 2019 in Offense Characteristics, Who Sentences | Permalink | Comments (3)

Tuesday, October 1, 2019

Missouri Gov denies clemency request to Russell Bucklew hours before his potentially "gruesome" execution... which went forward seemingly without difficulty

As reported in this CNN article, headlined "A man set to be executed tonight could suffer a 'gruesome' death because of his rare disease, activists say," the last person in Missouri who could have readily stopped a high-profile execution has decided to allow it to go forward tonight.  Here are the details:

Missouri's governor has refused to stop what activists say would be "one of the most gruesome" executions in US history.

Russell Bucklew, 51, is scheduled to die by lethal injection at 6 p.m. (7 p.m. ET) Tuesday. He was convicted of first-degree murder, kidnapping and first-degree burglary in 1997.

Gov. Mike Parson turned down a clemency request, said his press office, without providing additional detail.

Bucklew suffers from a rare blood vessel disorder called cavernous hemangioma.  The disease can cause tumors in the head and regular bleeding from the mouth, nose, eyes and ears.  An execution by lethal injection could cause prolonged suffocation and excruciating pain, Bucklew's attorneys have said.  Bucklew argued the state should consider death by lethal gas as an alternative.

In April, the Supreme Court ruled against Bucklew in a 5-4 decision, which means plans for the lethal injection can proceed.  Justice Neil Gorsuch said the Eighth Amendment "does not demand the avoidance of all risk of pain" in carrying out executions....

But the American Civil Liberties Union said executing Bucklew would violate the Constitution's prohibition against cruel and unusual punishment.  "What makes (Bucklew's) execution different is that he has a medical condition that would make it one of the most gruesome in U.S. history," the ACLU wrote.  It said Bucklew's tumors "will likely rupture during the lethal injection process, causing him to hemorrhage, choke, and suffocate in his own blood."...

Bucklew was convicted of fatally shooting his ex-girlfriend's presumed new boyfriend, Michael Sanders, and firing at Sanders' son before kidnapping Stephanie Ray Pruitt.  After raping his ex-girlfriend, court documents state, Bucklew was involved in a gunfight in which he and a Missouri state trooper were injured.

UPDATE: This AP article reports that the execution of Russell Bucklew went forward in the state of Missouri this evening and seemingly was not gruesome at all:

A Missouri man was executed Tuesday for killing a man during a violent 1996 crime spree, despite concerns the inmate's rare medical condition would cause a gruesome lethal injection. Russell Bucklew was executed at the state prison in Bonne Terre. It was Missouri's first execution since January 2017....

Bucklew looked around and twitched his feet beneath the sheet as he lay on the gurney just before the lethal injection. He suddenly took a deep breath and all movement stopped. He showed no outward signs of distress.

Cheryl Pilate, one of Bucklew's attorney's, said several steps were taken to try to ensure that he didn't suffer, including sedating him prior to the execution and elevating the gurney to help prevent him from choking. "We believe the significant efforts that went into making this a less horrible process were beneficial," Pilate said.

October 1, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Association of Prior Convictions for Driving Under the Influence With Risk of Subsequent Arrest for Violent Crimes Among Handgun Purchasers"

The title of this post is the title of this notable new research authored by multiple researchers appearing in JAMA Internal Medicine.  Here is its abstract:

Importance  Alcohol use is a risk factor for firearm-related violence, and firearm owners are more likely than others to report risky drinking behaviors.

Objective  To study the association between prior convictions for driving under the influence (DUI) and risk of subsequent arrest for violent crimes among handgun purchasers.

Design  In this retrospective, longitudinal cohort study, 79 678 individuals were followed up from their first handgun purchase in 2001 through 2013. The study cohort included all legally authorized handgun purchasers in California aged 21 to 49 years at the time of purchase in 2001. Individuals were identified using the California Department of Justice (CA DOJ) Dealer’s Record of Sale (DROS) database, which retains information on all legal handgun transfers in the state.

Exposures  The primary exposure was DUI conviction prior to the first handgun purchase in 2001, as recorded in the CA DOJ Criminal History Information System.

Main Outcomes and Measures  Prespecified outcomes included arrests for violent crimes listed in the Crime Index published by the Federal Bureau of Investigation (murder, rape, robbery, and aggravated assault), firearm-related violent crimes, and any violent crimes.

Results  Of the study population (N = 79 678), 91.0% were males and 68.9% were white individuals; the median age was 34 (range, 21-49) years. The analytic sample for multivariable models included 78 878 purchasers after exclusions.  Compared with purchasers who had no prior criminal history, those with prior DUI convictions and no other criminal history were at increased risk of arrest for a Crime Index–listed violent crime (adjusted hazard ratio [AHR], 2.6; 95% CI, 1.7-4.1), a firearm-related violent crime (AHR, 2.8; 95% CI, 1.3-6.4), and any violent crime (AHR, 3.3; 95% CI, 2.4-4.5). Among purchasers with a history of arrests or convictions for crimes other than DUI, associations specifically with DUI conviction remained.

Conclusions and Relevance  This study’s findings suggest that prior DUI convictions may be associated with the risk of subsequent violence, including firearm-related violence, among legal purchasers of handguns.  Although the magnitude was diminished, the risk associated with DUI conviction remained elevated even among those with a history of arrests or convictions for crimes of other types.

October 1, 2019 in National and State Crime Data, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Monday, September 30, 2019

Hopeful that the Democratic Prez hopefuls might engineer a clemency revival

Long-time readers know I have lamented under-use of Presidential clemency powers for the 15+ years I have been blogging (e.g., consider this 2004 post lamenting "Bush's stingy pardon practice").  In 2010, I wrote this law review article lamenting Prez Obama's poor early clemency track record and urging him to make structural changes to the federal clemency system.  To his credit, Prez Obama upped his clemency game in the tail end of his second Term, but he failed to engineer any systemic changes to a problematic process.  And Prez Trump, after an (overly) interesting early start to clemency work, has failed to vindicate his big talk last summer about big clemency plans.

Against this backdrop, I cannot help but get a little excited by this little CBS News article headlined "Clemency debate takes shape in 2020 Democratic race — advocates say it hasn't gone far enough."  Here are excerpts: 

Advocates for criminal justice reform argue 2020 candidates aren't spending enough time discussing clemency.  Inmates are behind bars who shouldn't be, they say, and the next president has the power to change that without Congress.

Senator Cory Booker brought attention to the issue at the Democratic presidential debate earlier this month, saying if he were elected president, he would commute the sentences of roughly 17,000 non-violent drug offenders on his first day.

Booker first proposed the idea in June to reduce sentences for those who would have received less time if guidelines under the First Step Act — passed in December 2018 — had been in effect.  "If 87 members of the United States Senate say these sentences are way too long — and we changed it — but we didn't make it retroactive, we could literally point to the people that are in jail unjustly right now," Booker said at the debate in Houston....

A petition historically goes through multiple rounds of approval within the Department of Justice and the White House before reaching the president's desk.  It's a lengthy process that can be easily stalled.

Experts argue there are political forces at play that can taint the process since the majority of the system is housed under the attorney general's purview.  "The DOJ is comprised of the people that put these people behind bars in the first place," said Joe Luppino-Esposito, the director of Rule of Law initiatives at the Due Process Institute.  "It's a little odd the clemency process happens within the same department."

However, at least six Democratic hopefuls — Booker, Mayor Pete Buttigieg, Senator Kamala Harris, Senator Amy Klobuchar, Senator Bernie Sanders and Senator Elizabeth Warren — say they would address these issues through an independent commission, which could both speed up and depoliticize the process....

Klobuchar was the first candidate to introduce the idea. Her plan establishes a bipartisan advisory board to review petitions and make recommendations to the president. "For the first time, we have candidates proposing changing the process," said Mark Osler, a professor at the University of St. Thomas. "They'd be smart to take a look at it very closely at this point."...

The Obama administration attempted to streamline the process by introducing specific eligibility criteria, however, an internal report by the Department of Justice last year found the initiative was "poorly implemented." ...

Presidents and governors are often wary about the risk of being criticized if someone with a commuted sentence goes on to commit a highly-publicized crime.  Many attribute this to the "tough on crime" climate ushered in after the Willie Horton campaign ad during the 1988 election.  In 2012, former Republican nominee Mitt Romney boasted that he granted zero pardons while he served as governor of Massachusetts.

I won't get too excited about all this clemency reform talk unless and until we actually have a would-be reformer in a place to walk the clemency reform walk. But it is still encouraging to see how the political discourse has evolved in recent years, and perhaps an evolution of the actual law will not be too far behind.

September 30, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noticing Justice Sotomayor's persistent voice as SCOTUS turns away capital cases

Adam Liptak has this new New York Times piece headlined "In Death Penalty Cases, Sotomayor Is Alone in ‘Bearing Witness’." Here are brief excerpts:

The terse Supreme Court rulings arrived in the evening, in time to allow an execution later that night.  There were three rulings in the last month or so, at 5:52 p.m., at 7:01 p.m. and at 10:13 p.m. They were bland and formulaic, saying only that the court had denied an “application for stay of execution of sentence of death.”  The inmates who had filed the applications were put to death within hours.

In all three cases, only one member of the court bothered to write an opinion, to give a hint about what was at stake.  That was Justice Sonia Sotomayor, who maintains a sort of vigil in the capital cases other justices treat as routine.  She described shortcomings in the trials the inmates had received and oddities in the laws the courts below had applied....

There is a precedent for Justice Sotomayor’s attention to capital cases, said Jordan M. Steiker, a law professor at the University of Texas....  “Justice Sotomayor is carrying forward the tradition of Justices Brennan and Marshall,” Professor Steiker said, referring to Justices William J. Brennan Jr. and Thurgood Marshall, who came to adopt a practice of dissenting in every death penalty case....

Justice Sotomayor’s sustained attention to the capital justice system, Professor Steiker said, was part of an effort to speak to many audiences. “She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court’s inability to intervene,” Professor Steiker said. “Justice Sotomayor is speaking to institutional actors — judges, prosecutors, defense lawyers — to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct.

September 30, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

New FBI crime data for 2018 reports encouraging crime declines in all areas except rape

In addition to celebrating a certain kind of new year, this morning I am also celebrating the release of the FBI's crime data for 2018 showing notable declines in nearly all crimes relative to 2017. This Marshall Project piece sums up the data story in this full headline: "New FBI Data: Violent Crime Still Falling: 2018 drop extends decades-long trend, but rapes rise for sixth straight year." Here are a few particulars from this piece:

FBI data released Monday suggests that the violent crime rate in the U.S. remains on a decades-long downward trend, falling by 3.9 percent in 2018. Overall, the violent crime rate has plunged by more than 50 percent since the highwater mark of the early 1990s.

The drops came across categories of violent offenses, including murder, non-negligent manslaughter and robbery, and property crimes like burglary, larceny and vehicle thefts, while aggravated assault numbers remained about flat. The rate for rape bucked this trend however, up slightly for 2018, and in each of the last six years....

The overall numbers, recorded by police departments across the country and compiled annually by the FBI, are welcome news for crime researchers like Ames Grawert, who closely monitored an uptick in violence in 2015 and 2016 .“That's a really good sign that the long term trend towards greater safety is not in fact reversed, and that we’re moving past whatever happened in 2015 and 2016,” said Grawert, senior counsel with the Brennan Center for Justice, a research institute at New York University’s School of Law. “It’s a reminder that two years isn’t a trend, and two years doesn’t break a trend.”

This main FBI chart has all the essential data going back to 1999, and I am drawn to the positive news in the property crime arena as well as in the violent crime numbers.  The data show not just a record low rate of property crimes in 2018 for the period of the last two decades, but also a record low total number of property crimes even though there are roughly 55 million more persons in the US now than back in 1999.  

Of course, the rates and numbers of murders and other violent crimes in the US are still higher than what is reported in many European nations, and so we ought not pat ourselves on the back too much.  Still, reduced crime rates are always justify celebration, and criminal justice reform advocates should be sure to not for skeptics that we are still experiencing continued reductions in all sorts of crimes at a time when all sorts of sentencing reform are being implemented or considered.

September 30, 2019 in National and State Crime Data | Permalink | Comments (0)

Sunday, September 29, 2019

Pennsylvania Supreme Court opts to dodge broadside challenge to state's death penalty

As noted in this post from July, Philly DA Larry Krasner filed a notable state court brief urging the Pennsylvania Supreme Court to declare state's death penalty unconstitutional.  But, as set forth in this brief order released on Friday, the Pennsylvania Supreme Court decided to "decline[] to exercise its extraordinary King’s Bench jurisdiction," and so the applications were "DENIED on this basis." This local article provides some more context and reactions:

The Pennsylvania Supreme Court on Thursday rejected a petition by two death row inmates to find the state’s death penalty unconstitutional, a request that some advocates had hoped would lead to a historic ruling.  In its one-page order, the court left the door open for individual review of death penalty cases. “Discrete review of properly presented claims will proceed in the individual cases, subject to the jurisdictional limits of the post-conviction courts,” its ruling said.

The Supreme Court case centered on a petition filed by federal defenders in August 2018 on behalf of two inmates, Jermont Cox of Philadelphia and Kevin Marinelli of Northumberland County, but had the potential to affect the approximately 130 others on death row.

Shawn Nolan, chief of the capital habeas unit at the Federal Community Defender Office in Philadelphia, which represents Cox and Marinelli, said in a statement Friday: “We are disappointed that the Pennsylvania Supreme Court declined to hear this important case at this time.  As noted by the order of the court, we will continue to litigate the unconstitutionality of Pennsylvania’s capital punishment system in individual cases.  There is overwhelming evidence that Pennsylvania’s death penalty system is broken — unfair, inaccurate, and unlawful under the constitution of the commonwealth.”...

On Sept. 11, the seven justices heard the appeal arguments in the cases of Cox and Marinelli.  During that hearing, Tim Kane, an assistant federal defender, argued that the death-penalty system is unreliable and thus violates the state constitution’s ban on cruel punishment.

The Philadelphia District Attorney’s Office, which represents the state in Cox’s appeal, also contended that the death penalty, as applied, has been unreliable and is thus unconstitutional.  Paul George, assistant supervisor of the Philadelphia district attorney’s law division, referred to a recent study by his office that found that 112 of 155 death penalty sentences — or 72% — from 40 years through 2017 were overturned.  Most were overturned because the defendants had ineffective counsel, he said.

George, like Philadelphia District Attorney Larry Krasner, is a former criminal defense attorney who has opposed the death penalty.  Krasner, who took office in January 2018, had campaigned on “never” seeking the death penalty. In practice, the District Attorney’s Office under Krasner has agreed or signaled a willingness to vacate the death penalty for more than one-third of the 45 inmates from Philadelphia on death row in May, an Inquirer analysis showed.  Under Krasner and George’s leadership, the office has not asked for the death penalty in any cases that have come up for resentencing....

The Pennsylvania Attorney General’s Office, which represents the state in Marinelli’s case, has taken a different stance from the District Attorney’s Office. Ronald Eisenberg, senior appellate counsel in the Attorney General’s Office, argued before the justices that there was no immediate need for the high court to take up its so-called King’s Bench power to review the matter, and suggested that other avenues exist to address issues regarding lawyers determined to be ineffective in capital cases....

The Pennsylvania District Attorneys Association issued a statement Friday afternoon supporting the order. “The extraordinary relief sought by petitioners was the wrong mechanism for this type of challenge, and it was properly denied,” the statement said. “The appeals process in Pennsylvania exists to ensure this rare punishment is applied properly — and that process will continue to be utilized by individuals sentenced to death.  While no prosecutor takes joy in seeking the death penalty, we believe today’s ruling is the right result for the citizens of this commonwealth.”

In the state legislature, Sen. Sharif Street and Rep. Chris Rabb, both Philadelphia Democrats, are among lawmakers who in April announced a plan to introduce legislation to end the state’s death penalty, saying it is unsuccessful as a crime deterrent, costly, and flawed. Sen. Katie Muth, a Democrat who represents parts of Montgomery, Chester, and Berks Counties, is a prime joint sponsor of the proposed Senate bill. Her legislative director, Sonia Kikeri, said Friday that Muth hopes to introduce the bill in the fall session.

Republican Rep. Francis X. Ryan of Lebanon County, who considers himself one of the most conservative members in the state House, is a prime joint sponsor of Rabb’s bipartisan effort. “I do think it needs to be abolished,” Ryan said Friday. Rabb said in a separate interview that they would plan to introduce their bill “when we have a few more co-sponsors on both sides of the aisle.... We have our work cut out for us if we want to introduce it by the end of this year.” He said they would have until November 2020 to introduce a bill in the current legislative session.

Cox was convicted of three separate drug-related murders in Philadelphia in 1992 and ordered to die for one of them. Marinelli was sentenced to death for a 1994 killing in Northumberland County.  Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed by the state was the Philadelphia basement torture killer Gary Heidnik, in 1999.

Gov. Tom Wolf in 2015 imposed a moratorium on the death penalty in Pennsylvania.

Prior related posts:

September 29, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, September 27, 2019

"Housing and Recidivism: The Critical Link to Reducing Louisiana’s Bulging Prisons"

The title of this post is the title of this new paper by Angela Decoteau recently posted to SSRN. Here is the abstract:

Louisiana has one of the highest incarceration rates in the United States in part because it has a high recidivism rate.  One of the reasons ex-offenders return to jail is that they cannot find adequate housing after serving their time.  As an inexperienced property manager of a mobile home park in rural Louisiana, the author gained an awareness of the re-entry hurdles ex-offenders face, in a most unexpected way.  The park refused any potential resident who had a criminal background.  One day a small unassuming man walked into the office, crumbled criminal background check in hand.  His rejection certain, he nevertheless pulled out a large three-ring binder. “I know I’ve messed up in my life, but I’ve turned it around, and here’s my proof.”  The author sat in silence as he paged through numerous certificates and glowing letters from prison guards, employers, and teachers both during and after his incarceration.  The author was able to secure a waiver of the policy, and he became one of the best tenants the park ever had.

This Article explores housing problems faced by the formerly incarcerated.  It continues with a discussion of the problems faced by property managers in considering ex-offenders’ applications. Louisiana’s antiquated criminal system denies the formally incarcerated any easy means to prove the extent of their rehabilitation.  To further complicate matters, property managers are denied access to the very information they most need to assess applicants’ qualifications.

The Article recommends a three-pronged approach: (1) expand the criminal record to include communication about the ex-offender’s behavior while incarcerated; (2) allow web access to property managers regarding justice of the peace housing judgments; (3) and enact legislative changes that would protect the formerly incarcerated from discrimination.

September 27, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (3)

SCOTUSblog online symposium previews "Bridgegate" political corruption case

Though there are other cases to be argued earlier in the coming Supreme Court Term that are sure to be of interest to sentencing fans, I suspect more than a few folks in the white-collar bar are especially excited for Kelly v. United States, a high-profile political fraud case on the SCOTUS docket this Term.  I know the great folks at SCOTUSblog are focused on this case, as they put together an online symposium this week with a lot of leading white-collar crime voices.  Here are the links, with all recommended reading:

September 27, 2019 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Thursday, September 26, 2019

Senators Durbin and Grassley introduce "Prohibiting Punishment of Acquitted Conduct Act of 2019"

I am so very pleased to be able to blog about a new effort to prohibit the ugly practice of using "acquitted conduct" in the federal sentencing system.  Specifically, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, today introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

  • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
  • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Long-time readers know I have been a long-time opponent of federal courts' use of acquitted conduct at sentencing (e.g., here is a post from 11 years ago on the issue, which itself links to more than a half-dozen prior posts on the topic).  I have also been involved in preparing briefs assailing the use of acquitted conduct in a number of circuit courts, and I was especially proud of this amicus brief that I prepared in support of certiorari in the Antwaun Ball case reference above.  So, I am fully supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing.

Thankfully, lots of other folks are also supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing, as revealed by these new policy group postings:

From Americans for Tax Reform, "ATR Joins Coalition Supporting the Prohibition of Punishing Acquitted Conduct"

From the Cato Institute, "Addressing the Gross Injustice of Acquitted Conduct Sentencing"

From FreedomWorks, "Support the Prohibiting Punishment of Acquitted Conduct Act, S. 2566"

From the National Association of Criminal Defense Lawyers, "National Association of Criminal Defense Lawyers"

September 26, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Next parent up in college admission scandal sentencing also gets four months in federal prison

As reported in this Boston Globe piece, a "Los Angeles man who paid $400,000 to get his son into Georgetown as a fake tennis recruit in the college admissions cheating scandal was sentenced Thursday to four months in prison."  Here are some of the details:

Stephen Semprevivo, 53, learned his fate in US District Court in Boston.  He’ll also have to serve two years of supervised release, perform 500 hours of community service, and pay a $100,000 fine, though prosecutors said the court “may offset [Semprevivo’s] fine with restitution to be determined at a later hearing.”

Semprevivo pleaded guilty in May to a sole count of conspiracy to commit mail fraud and honest services mail fraud. “I deserve to be punished,” Semprevivo said Thursday during brief remarks before Judge Indira Talwani sentenced him. “I am fully responsible.”...

The government had sought a 13-month prison term for Semprevivo, a former Cydcor Inc. executive. On Thursday, Assistant US Attorney Kristen A. Kearney reiterated several points contained in the government’s previously filed sentencing memorandum, in which prosecutors said Semprevivo showed “chutzpah” by suing Georgetown after his guilty plea in an effort to block the school from expelling his son.

“He tried to retain the fruits of his fraud,” Kearney said.  “The defendant’s audacity is breathtaking.” The lawsuit was ultimately withdrawn, and Semprevivo’s son was booted from campus.

Kearney also bristled at the contention from Semprevivo’s lawyers that he was a victim of Singer, who they said manipulated their client into participating in the scheme.  “The defendant was no passive wallflower or Singer’s puppet,” Kearney said, noting Semprevivo had his son write an e-mail to then-Georgetown tennis coach Gordon Ernst, telling Ernst he was eager to play for him, when in fact he didn’t play competitive tennis.

Semprevivo, Kearney said, “was not doing what was best for his son” but instead sought the “Holy Grail” of a Georgetown degree: “In other words, bragging rights.”...

David E. Kenner, a lawyer for Semprevivo, said during Thursday’s hearing that his client feels “great shame and terrible remorse” for bringing his son into the fraud.  At one point, Kenner said the case didn’t involve “an African-American tennis player” getting replaced by a “white tennis player,” which seemed to puzzle Talwani, who said she wasn’t sure why Kenner brought up race.  Ultimately, Talwani said, “one student [Semprevivo’s son] got an offer letter” to attend Georgetown “instead of a different student.”

Kenner conceded the point, telling Talwani that Semprevivo’s crime wasn’t “victimless,” citing “the people who didn’t get the spot that Mr. Semprevivo’s son got.”  Talwani told Semprevivo from the bench, “I don’t criticize you for being taken in” by Singer, who offered parents a so-called side door to get their children into elite schools via bribery. However, Talwani asked, “What makes your children entitled to a side door?”

She said she believes that Semprevivo is remorseful and ordered him to surrender to authorities on Nov. 7.

Prior related posts:

September 26, 2019 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (0)

Thoughtful commentary on the back-end realities and challenges of the criminal justice system

This week I have seen a number of important and thoughtful commentaries about important aspects of the back-end of modern criminal justice systems.  Here are two I recommend with brief excerpts:

From Joe Griffin and Arthur Rizer in the Tulsa World, "Probation and parole violations — often for technical offenses — are filling Oklahoma prisons, and it's time to do something about it":

A 2017 report drafted by the Council of State Governments shows roughly 24% of Oklahoma prison admissions were due to probation violations. That translates to roughly 3,000 people behind bars. Of those 3,000, more than half are in prison for a technical violation, such as staying out past curfew or missing a meeting. The annual cost to incarcerate these individuals is approximately $32 million.

If someone violates their terms of supervision, there should be consequences. Even more, if one poses a legitimate danger to the community, prison may be the best solution. But is sending a large number of individuals to prison who violate only the technical aspects of their supervision effective for public safety or fiscally responsible?

From J.J. Prescott and Sonja Starr in the Detroit News, "Clean-slate legislation strengthens Michigan":

For years, Michigan has offered certain offenders a chance to set aside their criminal records through expungement. But this path has been long, narrow and rocky at best, so few people have been able to take advantage of it. Now, the state Legislature is considering adopting a package of new bills to expand set-aside access. We strongly urge it to do so.

We recently conducted a major study of the effects of Michigan’s set-aside procedure. We found that while very few people with records get set-asides, those who do have great outcomes. In particular, we find that expungement is associated with large improvements in employment opportunities. Wages increase by close to 25% in just a year as people who had been unemployed became able to find stable work.

We also find nothing to suggest that granting someone a set-aside puts the public at risk, as skeptics have sometimes suggested. Those who receive set-asides are less likely to commit a new crime than the general adult population of Michigan. The rate of serious or violent re-offending is almost zero.

UPDATE: I just saw this AP article in this same vein headlined "Prosecutor aims to help people clear records of drug crimes." It starts this way:

Thousands of people in Utah’s largest county would be able to clear their records of drug crimes under a push announced Tuesday that advocates say goes further than many similar efforts around the nation.

The move by Salt Lake County District Attorney Sim Gill, which is expected to be approved by a judge, could make about 12,000 people eligible to expunge their records and remove obstacles to getting jobs, housing and education, he said. “Having a criminal record is the modern-day equivalent of being forced to wear a scarlet letter,” Gill said. “If we’re going to have any meaningful reform, we must first make sure when you have paid your debt to society these barriers are eliminated.”

The push comes amid a wave of criminal justice reforms in the U.S. A number of states and cities have moved to allow people with marijuana-related convictions to clear their records in places where the drug has been legalized.

In Utah, one of the most conservative states in the country, the GOP-dominated Legislature has passed a law allowing many misdemeanor crimes to be automatically expunged for people who stay out of trouble for a set period.

The move by Gill, a Democrat, would turn thousands of felony convictions into misdemeanors, allowing them to be automatically wiped away when the new state law goes into effect next year.

The plan goes further than many reforms elsewhere in the country because it includes a wide range of drug-related convictions, some dating back two decades, said Miriam Krinsky, executive director of the group Fair and Just Prosecution, which works with prosecutors around the country on criminal justice reform. The Utah effort is extraordinary, she said. Gill’s office sorted through drug-related convictions from 1997 through 2015, looking for people with misdemeanors and low-level drug possession felonies who had stayed out of trouble for at least five years.

September 26, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (1)

Wednesday, September 25, 2019

"How Mandatory Minimums Enable Police Misconduct"

The title of this post is the title of this notable new New York Times commentary authored by Scott Hechinger. I recommend the piece in full, and here are excerpts:

Police departments rightfully get blamed for the crisis in violent and corrupt policing. The recent firing of Daniel Pantaleo, the New York Police Department officer who strangled Eric Garner to death, lied about it, kept his job for five years and got terminated only after international pressure and the recommendation of a Police Department judge, underscores why.

But the near impossibility of getting fired is only part of the crisis of impunity. An overlooked but significant culprit is mandatory minimum sentencing.

In criminal courts throughout this country, victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing in exchange for plea deals. They do so because the alternative is to risk the steep mandatory minimum sentence they would face if they went to trial and lost. Prosecutors use the fear of these mandatory minimums to their advantage by offering comparatively less harsh plea deals before pretrial hearings and trials begin.

The result is not only the virtual loss of the jury trial — today, 95 percent of convictions come from guilty pleas instead of jury verdicts — but also the loss of the only opportunity to confront police misconduct in criminal proceedings.  In New York City, for example, less than 5 percent of all felony arrests that are prosecuted have hearings to contest police misconduct. For misdemeanor arrests that are prosecuted — a third of which are initiated by the police — less than .5 percent of cases go to a hearing.  A guilty plea also has the effect of insulating police from any civil rights lawsuit asserting false arrest because a plea of guilty serves as an admission that the officers’ arrest was justified....

The framers of the Constitution envisioned a far different system.  They knew well from British rule that the government’s power to stop, search, detain, accuse, judge and punish people suspected of committing crimes presented unique risks for abuse.  While they did not envision plea bargaining or the kind of policing we have today, three of 10 amendments in our Bill of Rights — the Fourth, Fifth and Sixth — when read together, collectively describe the view that government power should be vigorously challenged, without fear of reprisal or punishment, at every turn when it threatens the liberty of individuals. This original intent becomes meaningless if defendants cannot seek and receive judicial protection.  As the United States Supreme Court warned nearly 60 years ago in the landmark Mapp v. Ohio: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”...

We must abolish mandatory minimum sentences.  Aside from denying individualized justice and driving mass punishment, they usurp the role of the jury, coerce guilty pleas and, yes, insulate police misconduct. But as Jacob’s case underscored, even in the rare cases where officers are forced to testify and a judge finds them unbelievable, there is no mechanism to ensure that they are halted from being able to contribute to future prosecutions.

Fortunately, there is a growing national conversation among forward-thinking district attorneys and prosecutors to take police accountability more seriously.  District attorneys like Larry Krasner in Philadelphia and Kim Gardner in St. Louis have developed “do not call” lists of officers whom they refuse to rely upon based on previous findings of incredibility or misconduct.  If more prosecutors start rejecting arrests from bad officers, a strong message can be sent and their ability to continue hurting people can be stymied.

Prosecutors must also end the practice of the “hearing penalty,” where a plea offer made is forever lost once the hearing starts.  A plea offer, once made, should not depend on a person’s having the audacity to exercise their constitutional rights.  A system that provides no disincentive for misbehavior and no accountability for those with the greatest responsibility and the power to take away a person’s liberty is profoundly dangerous.

September 25, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (2)

Texas completes its seventh execution of 2019 with killing of triple killer

As reported in this local article, a "Texas death row inmate with claims that he was intellectually disabled was executed Wednesday at the Huntsville 'Walls' Unit for stabbing his two stepsons during an attack more than 12 years ago in their North Texas home that also killed his wife." Here is more:

Robert Sparks, 45, was apologetic to his family for the September 2007 slayings of 9-year-old Harold Sublet and 10-year-old Raekwon Agnew in their Dallas home.

“I am sorry for the hard times and what hurts me is that I hurt y’all,” Sparks said in his last statement.  He was declared dead at 6:39 p.m., approximately 23 minutes after the lethal process began.

Prosecutors say Sparks' attack began when he stabbed his wife, 30-year-old Chare Agnew, 18 times as she lay in her bed.  Sparks then went into the boys' bedroom and separately took them into the kitchen, where he stabbed them. Raekwon was stabbed at least 45 times.  Authorities say Sparks then raped his 12- and 14-year-old stepdaughters.

His attorneys fought his appeal until the final minute, arguing that the jury specifically relied upon “the false testimony of prosecution expert A.P. Merillat when sentencing him to death.  The appeal also claimed that the courtroom bailiff wore a syringe tie on the date of jury deliberations, “creating an unacceptable risk of impermissible factors coming into play at trial.”

Notably, as revealed in this SCOTUS order, Justice Sotomayor thought this claim about a syringe tie justified stopping his execution.  Here is her dissent from the Supreme Court's denial of a stay for Sparks:

The allegations presented in this petition are disturbing.  On the day the jury began punishment deliberations in petitioner Robert Sparks’ capital murder trial, one of the bailiffs on duty in the courtroom wore a black tie embroidered with a white syringe — a tie that he admitted he wore to express his support for the death penalty.

That an officer of the court conducted himself in such a manner is deeply troubling.  Undoubtedly, such “distinctive, identifiable attire may affect a juror’s judgment.” Estelle v. Williams, 425 U.S. 501, 504–505 (1976).  The state habeas court, however, conducted an evidentiary hearing but did not find sufficient evidence to conclude that the jury saw the tie. I therefore do not disagree with the denial of certiorari.  I nevertheless hope that presiding judges aware of this kind of behavior would see fit to intervene in future cases by completely removing the offending item or court officer from the jury’s presence.  Only this will ensure the “very dignity and decorum of judicial proceedings” they are entrusted to uphold. Illinois v. Allen, 397 U.S. 337, 344 (1970).  The stakes — life in this case, liberty in many others—are too high to allow anything less.

September 25, 2019 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

"Execution of Youth under Age 21 on the Date of Offense: Ending with a Bang or a Whimper?"

The title of this post is the title of this new article authored by Hollis Whitson and Eric Samler now available via SSRN. Here is its abstract:

Consistent with the scientific evidence that proves that adolescent brain development continues well into the third decade of life, the Supreme Court may be foreshadowing the day when an actual or de facto categorical ban will bar the death penalty for offenders who were under the age of 21 years old on the date of the offense.  For almost two decades, death sentences and executions of such persons have been in steep decline — in absolute numbers and in geographical concentration. Over the same period, the minority percentage of those impacted has increased.  The authors joins the American Bar Association and other voices that have called for a categorical ban on execution of persons who were under the age of 21 years old at the date of offense.

September 25, 2019 in Assessing Graham and its aftermath, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Tuesday, September 24, 2019

Next parent sentenced in college admission scandal gets four months in federal prison

As reported in this New York Post piece, headlined "Businessman gets 4 months for bribing his son’s way into USC," the second parent sentenced in the college admissions scandal will be spending somewhat longer in prison than Felicity Huffman. Here are details:

A Los Angeles businessman who paid $250,000 in bribes to get his son into USC — lying that the kid was an international water polo star — landed four months behind bars Tuesday.

Devin Sloane, a 53-year-old water treatment company owner, had pleaded guilty in May to conniving with college admissions scamster Rick Singer and crooked University of Southern California officials to get his son into the top college....

The dad had put his son in a Speedo and swim cap and posed him with a water polo ball in the family’s backyard pool for photos to help create a fake athletic profile for the kid in the summer of 2017. With the help of his dad’s accomplices, the teen was then marketed to the university as an acclaimed international player with “the youth junior team in Italy” who participated in tournaments from Greece to Serbia and Portugal, the feds said.... The teen had never played the sport competitively.

Federal prosecutors in Boston said in court papers that Sloane also “bragged about misleading a USC development official to cover up the quid pro quo — using his dead mother as a prop for a fake donation — and even expressed outrage when high school counselors dared to question why a student who did not play water polo was being recruited to play college water polo.”

The feds had sought a year and a day in prison for Sloane, whom they said showed “moral indifference” during the scam. His lawyers argued for no jail time, instead offering that Sloane could do community service by working with kids at a private school.

Before sentencing Sloane, Judge Indira Talwani scoffed, “That’s about as tone-deaf as I’ve heard. The independent school kids are not the victims in this case,” according to WGBH-TV.

In addition to the four-month prison term, Sloane must complete 500 hours of community service and pay a $95,000 fine.

Sloane is the second parent to be sentenced in the scandal. The first, actress Felicity Huffman, received 14 days behind bars for her $15,000 bribe. Assistant US Attorney Eric Rosen said in court before Sloane’s sentencing that the dad was different from Huffman because the actress didn’t tell her daughter about the bribe scheme, thus avoiding directly involving her, while Sloane “literally threw his kid into the family pool,” according to a Law360 newswire reporter.

Rosen also noted the difference in the size of the bribes in each case.... But Sloane’s lawyers argued to Tuesday that their client didn’t completely understand that the money he was paying was a bribe.

Prior related posts:

September 24, 2019 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Tennessee AG seeking to make his state even more like Texas with respect to capital punishment

This new AP article, headlined "Tennessee Seeks Execution Dates for 9 Death Row Inmates," explains why the Volunteer State is on a path to become the new Texas in the arena of capital punishment thanks in part to efforts by the state's Attorney General.  Here are the basics:

Tennessee's attorney general has asked the state Supreme Court to set execution dates for nine death row prisoners, bucking a national movement away from capital punishment. Attorney General Herbert Slatery quietly filed the request on Friday with no explanation, and the state Supreme Court later posted it on its website on Tuesday.

"The Tennessee Constitution guarantees victims of crime the right to a 'prompt and final conclusion of the case after the conviction of sentence,'" Slatery said in a statement Tuesday in response to a request for comment from The Associated Press.

Slatery's motion came the same day he publicly announced he would challenge a Nashville Criminal Court's decision to commute the death sentence of black inmate Abu-Ali Abdur'Rahman's to life in prison after concerns were raised that racism tainted the jury selection pool.  Slatery argued in his appeal that the court's order "circumvented established legal procedures."

Assistant Federal Public Defender Kelley Henry said she was surprised by the request when she received it in the mail on Monday. Seven of the nine men included in Slatery's motion are represented by the public defender's office.  "Each case is unique and represents a number of fundamental constitutional problems including innocence, racism, and severe mental illness," Henry wrote in a statement on Tuesday. "We will oppose the appointed attorney general's request."

In Tennessee, the attorney general can request execution dates once juries have delivered death sentences and inmates have exhausted their three-tier appeals process in state courts and the U.S. Supreme Court.  The state Supreme Court then schedules the executions. It has not yet scheduled the nine Slatery requested but has scheduled two others for the coming months.

Tennessee has executed five people since it resumed executions about a year ago. The state was second only to Texas in the number of executions it carried out in 2018, the fourth consecutive year in which there have been fewer than 30 executions nationwide. Tennessee executed three people last year; Texas put to death 13....

In Tennessee, executions are carried out through lethal injection unless the drugs are unavailable, in which case the electric chair is used. Additionally, death row inmates who were convicted of crimes before January 1999 can choose the electric chair or lethal injection.  Tennessee put 56-year-old Stephen West to death by electric chair last month. West was convicted of the 1986 kidnappings and stabbing deaths of a mother and her 15-year-old daughter. He also was convicted of raping the teen.

September 24, 2019 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement

This lengthy new Politico piece portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead. The full headline summarizes the essential: "Trump snubs Jared Kushner’s signature accomplishment; The president thinks criminal justice reform is a political loser, and hasn't been shy about saying so."  Here are some extended excerpts:

When President Donald Trump huddled with campaign aides in the late spring to discuss his bid for reelection, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s historic passage of the First Step Act — a sweeping criminal justice reform bill that eluded previous administrations and has earned celebrity support.

Kushner reiterated the positive selling points of that bill during the Oval Office meeting as Trump campaign officials and White House aides ticked through the president’s achievements, wondering which would resonate most with his adoring base.  But Trump wasn’t interested and told Kushner he didn’t think his core voters would care much about a bipartisan deal for which he’s since accused Democrats of trying to steal credit. “It was clear he thinks it’s a total dud,” said a person familiar with the meeting. “He made it abundantly clear he doesn’t think it’s worth talking about.”

Kushner, whose own father spent more than a year in federal prison, worked closely with Democratic and Republican senators to get the criminal justice reform bill over the finish line last year — often telling his tough-on-crime boss it was worth expending political capital to seize a rare opportunity to overcome the deeply partisan divide on Capitol Hill and solidify his image as a pragmatic deal-maker.

But now, Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s really mad that he did it.  He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Indeed, for months, the president has glossed over his son-in-law’s signature legislative achievement at his campaign rallies. If he brings up criminal justice reform, it’s almost always to mock his predecessors for their inability to get it done. Otherwise, as he did at his three most recent campaign events, he skips it entirely, indulging in long-winded rants about unresolved issues like trade and immigration instead of plugging one of the few bipartisan triumphs of his administration.

The subject’s notable absence from Trump’s 2020 stump speech offers a raw look at the president’s political instincts, which strongly veer toward partisan fights and away from the soaring appeals to national unity of past White House incumbents. And it lacks appeal to his base of rural and older white voters, who often respond better to hard-line rhetoric on the topic of law and order.

The nub of the issue for Trump, say White House officials, congressional aides and friends of the president, who were granted anonymity to speak candidly on the matter, is that he no longer sees criminal justice reform as a résumé booster heading into 2020.  He brings it up at official events, in response to reporters, and to religious groups — and it was a key part of Trump’s State of the Union address in January, when he welcomed home the first inmate to be released under the First Step Act — but it’s far from a permanent fixture of his reelection campaign.

“It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it,” said one White House official, adding that some Trump aides questioned why the president — who once declared himself “the law and order candidate” — endorsed the First Step Act in the first place....  In response to this story, a White House official said, “This false premise is another convoluted contradictory, media-manufactured joke. The president is clearly proud of all of his record-setting accomplishments — including the landmark bipartisan Criminal Justice Reform that data shows will save money, reduce crime and make communities safer.”

During the Oval Office meeting this spring, Trump complained that Democratic co-sponsors of the First Step Act skipped the bill signing at the White House last December (Sen. Sheldon Whitehouse of Rhode Island was the only Democrat to attend) and have refused to give him credit for passing prison reform when his immediate predecessor couldn’t, according to two people with knowledge of the meeting.  He’s said as much publicly in recent days, tweeting earlier this month: “I got it done with a group of Senators & others who would never have gone for it. Obama couldn’t come close.”

The tweet came after NBC’s Lester Holt omitted any mention of Trump’s role in advancing criminal justice reform during a televised town hall on the network. The president felt the televised special was disingenuous and thought singer John Legend, who participated in it, “paraded himself out like he was the great savior of criminal justice reform,” according to a senior administration official....

“He’s been telling Jared, ‘I got nothing from that,’” a person close to the White House said of criminal justice reform, adding that the president feels duped by claims that his popularity has grown and that he is frustrated with Kushner’s attempts to “jawbone” the issue into every speech he delivers.  “Jared has got all these stats like ‘every rapist in Florida is now going to vote Republican,’” quipped the person close to Trump.  “Trump doesn’t believe it and he’s mad Jared sold him this thing,” the same person said. (The First Step Act gives only certain nonviolent offenders a chance to shorten their sentences, and excludes sex offenders from early release.)

Kushner has claimed publicly that more nonviolent ex-felons in Florida, where they recently became eligible to vote, are registering as Republicans than as Democrats. In a rare television appearance in April, he told Fox News’ Laura Ingraham that he found that statistic “very pleasing” and one “that will surprise a lot of people when they see the new coalition that President Trump is building.”  But it is unclear how Kushner and his team procured such data. As of March, more than 2,000 formerly incarcerated felons had registered to vote in Florida, according to a study by the Brennan Center for Justice, which did not disclose the new registrants’ party affiliations. An aide to Kushner did not provide details on the source of the data in time for publication.

Some Trump allies argue that Kushner, who continues to monitor implementation of the First Step Act, is unlikely to persuade media personalities and Democratic lawmakers who support either to credit Trump with working across the aisle to get the measure passed.

“Van Jones was happy with Trump for a day. That’s all Trump got,” said the person close to Trump, referring to the liberal CNN pundit and former Obama adviser, who once described the First Step Act as “a Christmas miracle.”  Jones did attend a White House summit on prison reform this April — months after the bill passed — and recently met with Kushner to discuss its impact.  Jones, who co-founded the bipartisan criminal justice reform nonprofit #cut50, noted that he’s continued to sing Trump’s praises on the topic, including in a recent interview with CNN in which he celebrated Trump’s role in signing the First Step Act into law.... “There’s always been a bunch of people in the building, they didn’t like it before, during or after, and they’ve always been able to leak out anonymous bullshit quotes that then very quickly have egg on their faces because Trump does something else positive in this direction or throws in another line in a speech,” said Jones, who confirmed that Trump has been frustrated with the lack of credit he’s received....

Some Trump allies worry that the more the president talks about criminal justice reform, the more vulnerable he becomes if a prisoner released early under the restructured sentencing guidelines is ever accused of committing another crime.  When Republicans battled over criminal justice reform last fall, a small group of conservative senators who ultimately opposed the bill warned Trump of the dire consequences he could face if an inmate who won early release became a repeat offender.  “You let people out of jail early, commute sentences, something bad happens because of this effort [and] it’s going to be one more egg on their face — or even worse, blood on their hands,” said a former Senate Republican staffer.

Another GOP aide pointed to a negative ad campaign Republican gubernatorial candidate Eddie Rispone recently launched against Louisiana Gov. John Bel Edwards over his support for statewide sentencing reform. The ad accuses Edwards of putting “dangerous” and “violent” ex-felons “back on our streets where they robbed, attacked, [and] murdered.” A person familiar with the ad buy said it was prompted by the September arrest of a Louisiana man on burglary charges who was released early last year as part of a parole reform bill passed by the state Legislature in 2016. “Any smart political person would not go out bragging that they let criminals out of jail,” the GOP aide said.

This reporting is quite interesting, but not really all that surprising in light of Prez Trump's personal and political history. It also has me wondering whether Attorney General William Barr, who seems to be in good with Prez Trump and does not seem inclined to be a big fan of the FIRST STEP Act, might be having some influence on how the Prez thinks about these issues. Most fundamentally, this story serves as yet another reminder of just how fragile political support for criminal justice reform can be and how critical it can be to get reform work done whenever a window of opportunity is open.

September 24, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

How many have lost their right to vote due to the war on drugs?

Today, Tuesday, September 24, 2019, marks National Voter Registration Day.  This website provides this account of this notable special day:

National Voter Registration Day is a national holiday celebrating our democracy. It was first observed in 2012 and has been growing in popularity every year since.... The holiday has been endorsed by the National Association of Secretaries of State (NASS). It is further supported by the National Association of State Election Directors (NASED), the U.S. Election Assistance Commission (EAC), and the National Association of Election Officials (The Election Center).

Every year millions of Americans find themselves unable to vote because they miss a registration deadline, don’t update their registration, or aren’t sure how to register. National Voter Registration Day wants to make sure everyone has the opportunity to vote. On Tuesday September 24, 2019 volunteers and organizations from all over the country will “hit the streets” in a single day of coordinated field, technology and media efforts. National Voter Registration Day seeks to create broad awareness of voter registration opportunities to reach tens of thousands of voters who may not register otherwise....

What It Will Accomplish

  • Registering Voters: In 2018 over 800,000 voters used National Voter Registration Day to register to vote across all 50 states.
  • Mobilizing Volunteers: Each year the holiday’s growing number of local partners engage upwards to 10,000 local volunteers.
  • Educating Voters: Millions of voters need to register and re-register every year. By utilizing new technology and leveraging partners, we’ll educate Americans in all 50 states about how to register, sign up for election reminders, check their registration online, get mail ballots, learn about early voting and more.
  • Uniting for a Common Purpose: National Voter Registration Day is a day of civic unity. It’s an opportunity to set aside differences and celebrate democracy and the rights and opportunities we all share as Americans.

Though I am ever eager to "celebrate democracy and the rights and opportunities we all share as Americans," I never want to lose sight of the unfortunate reality that not all adult Americans share in the rights and opportunities of voting because of widespread felon disenfranchisement laws.

The Sentencing Project recent published this helpful primer on felony disenfranchisement, which includes these disconcerting statistics:

As of 2016, 6.1 million Americans were prohibited from voting due to laws that disenfranchise citizens convicted of felony offenses....  An estimated 3.1 million people are disenfranchised due to state laws that restrict voting rights even after completion of sentences....

Felony disenfranchisement policies have a disproportionate impact on communities of color.  Black Americans of voting age are more than four times more likely to lose their voting rights than the rest of the adult population, with one of every 13 black adults disenfranchised nationally.  As of 2016, in four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five black adults was disenfranchised. In total, 2.2 million black citizens are banned from voting.

Because I view any and all forms of felony disenfranchisement to be inconsistent with a robust commitment to democracy, I generally oppose any and all forms of felony disenfranchisement.  But, as the question in the title of this post indicates, I found myself recently thinking and wondering about just how many votes have been lost as a result of the modern drug war.  Though only about 20% of all incarcerated persons are imprisoned for a drug offense, I suspect that a higher proportion of those disenfranchised for a felony may be drug offenders.  Calculating an exact number of disenfranchised persons with a drug felony wold be quite hard, but it is easy to be concerned that robust American voting "rights and opportunities" are another casualty of the modern drug war.

September 24, 2019 in Collateral consequences | Permalink | Comments (3)

Monday, September 23, 2019

Gearing up for the next round of sentencings in college admissions scandal

This new Los Angeles Times article, headlined "Prosecutors in college admissions scandal fighting for prison time for parents," reports on arguments and analyses in the run up to the federal sentencings of other persons who have pleaded guilty in the high-profile college admissions scandal. Here are highlights:

Shortly before she sentenced Felicity Huffman this month to two weeks in prison for her role in the college admissions scandal, a judge settled a lingering legal dispute.  Prison sentences for parents who admitted to taking part in the scheme would not be based on how much money they paid to take part in the scam, U.S. District Judge Indira Talwani ruled.

The ruling didn’t impact Huffman because the $15,000 she paid to rig her daughter’s college entrance exams was far less than what others shelled out.  But starting this week, Talwani will sentence 10 more parents, and her decision dealt a blow to prosecutors, who tried to convince her that higher payments should mean longer sentences.

The parents and their attorneys, meanwhile, have been left with mixed signals from the judge.  On the one hand, her ruling means parents could receive significantly lower prison sentences or avoid prison altogether.  On the other, Talwani’s decision that Huffman should spend some time incarcerated is a sign she’ll come down as hard or harder on other parents, experts said.  “She would need a very compelling reason to give someone with the same or more culpability less time,” said James Felman, an attorney and expert on white-collar sentencing norms who isn’t involved in the case.

The prosecution doubled down after their defeat.  In an effort to salvage the prison sentences they maintain are warranted in the case, they are trying a new tack.  Rather than staking the rationale for incarceration to the five- and six-figure sums parents paid to access the bribery and cheating operation run by college admissions consultant William “Rick” Singer, the government wants Talwani to punish them for the deviousness and audaciousness of their crimes.

Under the new approach put forth in court papers filed by Assistant U.S. Atty. Eric Rosen, parents who took elaborate, deliberate steps to sneak their kids into a school or tried to cover their tracks afterward would be more culpable than someone who simply wrote Singer a check.

Rosen’s gamble will be tested this week when Talwani sentences two Los Angeles businessmen in court hearings Tuesday and Thursday.  Up first is Devin Sloane, an executive at a water technology company who has admitted paying Singer and an alleged accomplice $250,000 to get his son into USC by misrepresenting the teen as a talented water polo player who deserved a spot on the school’s team.

Before Talwani made her ruling, Rosen asked the judge to sentence Sloane to one year in prison.  The prosecutor did not budge from the request in a new filing last week, even though the judge’s order means Sloane — and all of the parents Talwani sentences — are eligible for sentences ranging from no time in prison to six months incarcerated under federal sentencing guidelines that judges consult.

Rosen argued in his recent filing that a year in prison was still the appropriate penalty, pointing to what he called Sloane’s “moral indifference during the fraud, and his lack of remorse afterward.”...  Rosen also revived the idea that the size of Sloane’s payment should have some bearing on his sentence, despite Talwani’s ruling.  He wrote that while the $250,000 sum is “an imperfect measure of blameworthiness,” it still amounted to an “indication, however rough, of the lengths he was willing to go to obtain the illegal fruits of a fraud scheme.”

Nathan Hochman, an attorney for Sloane, countered with a lengthy written plea, making a case for why Talwani should spare the 53-year-old father from prison.  Hochman portrayed Sloane as a stand-up, well-intentioned father who got caught up in the pressure cooker of the college application process and made a regrettable decision.  Far from eschewing responsibility, Hochman said Sloane owned up to his crime soon after he was arrested in March.  Instead of prison, Hochman urged to Talwani to give Sloane probation and 2,000 hours of community service.

Attorneys for Stephen Semprevivo, who will be sentenced Thursday, asked Talwani to spare him prison as well, saying probation and 2,000 hours of community service would suffice.  Semprevivo, they wrote in a court filing, was a “victim” of Singer, a “master manipulator” who coaxed and eventually coerced Semprevivo into going through with the fraud.

Rosen rebuffed that portrayal, saying the Los Angeles business development executive should spend 13 months in prison for conspiring with Singer to bribe a Georgetown tennis coach to recruit his son, who didn’t play tennis, at a cost of $400,000.  Rosen laced into Semprevivo for making his son “an active participant in a long-term federal crime” and making the decision to file a lawsuit against Georgetown in an attempt to keep the school from annulling his son’s credits.

Prior related posts:

September 23, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Highlighting (just some of) the many challenges of gathering good criminal justice data

This new Los Angeles Times editorial, headlined "Police, prosecutors and courts are keeping California’s criminal justice data a secret," provide a useful reminder of an evergreen reality — namely that good criminal justice data is ever elusive.  Here are excerpts:

A quick flip through the statute books could leave the false impression that California has the nation’s most transparent criminal justice system, the most comprehensively compiled and carefully analyzed crime data, the most penetrating public access — even without a new bill on its way to Gov. Gavin Newsom’s desk.

Since the 1950s, California law has required the state Department of Justice to collect names, numbers and other key facts from every state and local agency dealing in any way with crime, criminals or “juvenile delinquents.”  In the 1970s, lawmakers set standards for sorting and sharing justice data among courts, police, prosecutors, jails and prisons.  In 2016, a new law required the state attorney general to post basic criminal statistics online....

Yet retrieving useful information about California’s justice system is nearly impossible.  More than half of all arrest records fail to show whether the suspect ultimately was convicted, so police can’t tell whether the person they just stopped has a serious felony record.  Innocent people might sit in jail while courts or probation departments try to track down complete rap sheets that really ought to be available with a couple keystrokes.  Violent felons may be left free to buy guns despite being legally barred from doing so. Potential employers can’t tell the difference between a job applicant with a criminal past and one who was once mistakenly arrested.

Meanwhile, inadequate numbers and other data leave the public with no idea whether criminal justice reforms or other new laws are working as they were intended, or whether their courts, cops, prosecutors, probation departments and public defenders are working efficiently and effectively.

How can a state that requires so much information-gathering be so in the dark about its justice system?  In part, it comes down to lack of resources and lack of technological know-how.  Some courts and county agencies (barely) meet their legal requirements by sending paper records to the Justice Department, which then must transcribe the documents into its own data system.  Other agencies have some tech savvy but use systems or software that are incompatible with one another or are no longer supported by the companies that developed them.  And standards for collecting data vary around the state, so all that carefully compiled information has limited utility....

One problem that sets California apart is scale.  The state is huge, and so are the numbers of arrests, dismissals, convictions, sentences, probation orders.  It takes money and expertise to manage all those records.  But it may also be that criminal justice agencies have little enthusiasm for opening their operations to public scrutiny. For example, until recently the California Department of Corrections and Rehabilitation prohibited researchers from publishing findings that officials believed might reflect poorly on the department, according to an April 2019 report by the Stanford Criminal Justice Center and Measures for Justice (an organization seeking to improve justice data collection practices).

The same may be true of other agencies.  A district attorney, for example, has a political incentive to jealously guard data about conviction rates, reversals on appeal and the like.  Judges are wary of being graded on how swiftly cases move through their courts or how many African American defendants, for example, are convicted in their courtrooms, and how long their sentences are compared with convictions and sentences for white defendants.

Assembly Bill 1331, whose fate now rests with Newsom, would close some of the current gaps in criminal history records by tightening reporting requirements for law enforcement agencies and courts.  It would require release of anonymized information to research agencies, which would then be able to sift through data to discover trends or biases.  It would promote better and faster sharing of information among public agencies.

It’s a step forward, and it deserves Newsom’s signature.  But like all those older laws on California’s books, it won’t solve the state’s criminal justice information problem without serious buy-in by courts, police and other participants in the system.  They will have to more fully embrace — on their own or through public and political pressure — their role in producing useful data.

September 23, 2019 in Data on sentencing, Who Sentences | Permalink | Comments (0)

Sunday, September 22, 2019

"Justice sometimes needs a do-over"

The title of this post is the headline of this Washington Post commentary authored by James Forman Jr. Here are excerpts:

The D.C. Council is considering the Second Look Amendment Act, which builds on the Incarceration Reduction Amendment Act of 2016 (IRAA).  That law allows people convicted of serious crimes before they turned 18 to ask judges to review their sentences after they have served 15 years.  The proposed law expands eligibility for sentence review to all those who committed crimes before age 25 and have served at least 15 years in prison....

The core idea behind this is that everybody — including people in prison — grows and matures with time. Social science research shows that most people who commit violent crimes do so while they are young....

Of course, some people in prison remain a threat.  That’s why D.C.’s Second Look Amendment Act would not give judges carte blanche to shorten every sentence that comes before them.  Instead, the law instructs them to consider a long list of factors, including evidence of maturity and rehabilitation, medical and mental health reports, prison disciplinary records, victim impact statements and the views of the U.S. attorney’s office.

The Second Look Amendment Act offers a promising corrective to the harsh — and ineffective — practices once commonplace in courthouses across America.  But while the law has the support of the majority of the city’s elected officials, the unelected U.S. attorney is leading a campaign to scuttle it.

I’m not surprised by this opposition.... But I am disappointed by the office’s willingness to mislead the public in making its case.  Consider one of its central criticisms of IRAA and the Second Look Amendment Act: It says that the laws eliminate a judge’s ability to consider the nature of the crime when deciding whether to reduce a sentence.  In fact, the laws do nothing of the kind.  Though a change to IRAA this year removed “the nature and circumstances of the offense” from a list of factors that judges must consider, nothing in the law prevents judges from engaging in such consideration, and several provisions still in force effectively require them to do just that.

Don’t take my word for it.  The U.S. attorney’s office has made this very point in court.  Last month, when prosecutors opposed a sentence reduction in the case of United States v. Momolu Stewart, the U.S. attorney’s office told the judge that he must consider the defendant’s crime because it is “essential context for evaluating other factors that remain relevant under the IRAA.” It appears that the U.S. attorney’s office wants to have it both ways. In court, prosecutors tell judges they are logically bound to consider the crime, while in the press and community meetings, they frighten voters by telling them that the law doesn’t allow that.

The Second Look Amendment Act gives the D.C. Council a chance to restore a measure of fairness to a criminal system often lacking it.  Standing up to the U.S. attorney’s office may not be easy, but the D.C. Council did so when it rejected that office’s scare tactics and eliminated mandatory minimums for drug offenses in the 1990s. That decision now is universally admired.  If the council is willing to embrace reason over fearmongering again, I am confident the Second Look Amendment Act will be recognized as another proud accomplishment.

September 22, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, September 21, 2019

Honoring the second annual "National Expungement Week"

NEW2019_Flyer_No_Citiesv1_Square1080Today begins, as detailed here, the second annual "National Expungement Week" running until September 28.  I have been excited and proud to play a small role in these important activities by helping identify law students to participate in a local record sealing clinic.  (Applicable law in Ohio allows for only a very few types of criminal convictions to be expunged, but a much larger number of convictions are subject to sealing.) 

Notably, Columbus is not shown among the more than two dozen localities listed here as having expungement week events; I suspect and sincerely hope  there may be many other places with expungement-related activities taking place this week.  This Forbes article, headlined "Second Annual National Expungement Week (N.E.W.) Helps People Clear Criminal Records," provides these additional details:

A coalition of more than three dozen organizations working at the intersection of the cannabis industry, racial equity, and reparative justice, led by Equity First Alliance and Cage-Free Repair, conceived the week to highlight the need to fully integrate those disenfranchised by the war on drugs within their respective communities.

Events to be featured throughout the week include free clinics to help remove, seal, or reclassify eligible convictions from criminal records (depending on local legislation), as well as provide expungement education workshops and complimentary services.

N.E.W. events have inspired teams of attorneys, organizers, and activists nationwide to continue to increase expungement opportunities where possible, with over 40 events scheduled to take place throughout the week.

Cities featuring participating events have nearly doubled from 16 in 2018 to 30, including major hubs such as Atlanta, Boston, Chicago, Denver, Detroit, Honolulu, Los Angeles, New York, Newark, Philadelphia, San Francisco, and Washington, DC.

And this Rolling Stone article, headlined "Seth Rogen Details How to Clear Your Criminal Record in New PSA," highlights a notable celebrity contributing to the effort.

Long-time readers should recall my old article, titled "Leveraging Marijuana Reform to Enhance Expungement Practices," which includes discussion of various legal and practical barriers that can often unduly limit the ability of individuals to break away from the collateral consequences of long-ago minor criminal convictions.  I call this article "old" because, though published less than 18 months ago, there has been dramatic improvement in the efforts of marijuana reform states to foster the erasure of past marijuana convictions.

That said, my old article still includes a new and novel proposal: the creation of new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.  Special private-actor programming in the form of "National Expungement Week" can do great things, but the undue burdens of a criminal convictions are fundamentally a public problem in need of a public institutional solution.

September 21, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Some weekend reads on all sorts of topics from all sorts of places

At the end of the a busy week, I often have collected a number of links to articles and commentaries of interest that I realize I will not have time to blog fully. Ergo, a wrap-up post like this one allows me to cover all sorts of topics from all sorts of places:

"Alabama Sex Offender Registry Is Cruel and Unusual Punishment for Teenagers, Lawsuit Argues"

"Back to School: A Common-Sense Strategy to Lower Recidivism"

"Executing the intellectually disabled serves little purpose"

"Guilty until proven innocent: The cash grab of civil asset forfeiture"

"Non-violent drug offenders need help, not felony records"

"Victim advocates concerned after Nevada top court gives jury trial right to accused domestic batterers"

"What Democratic candidates need to admit about criminal justice reform"

September 21, 2019 in Recommended reading | Permalink | Comments (0)

"Jury Sentencing in the United States: The Antithesis of the Rule of Law"

The title of this post is the title of this new article authored by MaryAnn Grover now available via SSRN.  Here is the abstract:

The well-documented randomness and arbitrariness that plagues capital sentencing stems from the wide discretion granted to sentencing actors, namely jurors.  However, this wide discretion exists in the non-capital sentencing context as well.  Accordingly, arbitrary sentences are not confined to the capital sentencing context. Instead these arbitrary sentences result from structural choices designed to insulate jurors from the impact of their decisions.

This article explores how the statutory jury sentencing schemes used in the six states that retain jury sentencing contribute significantly to the arbitrary nature of sentences imposed.  This article further provides practical ways in which jurors could be made to feel responsible for the sentences they impose, leading them to impose less arbitrary sentences.

September 21, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, September 20, 2019

Kentucky Supreme Court hears arguments to preclude death penalty for defendants under age 21

As reported in this local article, the Kentucky Supreme Court heard a notable death penalty case yesterday.  Here are the details:

Kentucky could become the first death penalty state to put additional age restrictions on capital punishment.  Currently, 18 is the legal age allowed in the United States.  However, the Supreme Court of Kentucky could ban the death penalty for defendants who committed a crime between the ages of 18 and 21.

On Thursday, the Court heard the arguments surrounding two high profile murders out of Lexington.

In the first case, Efrain Diaz Jr. and Justin Smith are charged with the death of UK student Jonathan Krueger. Police say Krueger and a friend were walking home on East Maxwell St. in 2015 when Diaz, Smith, and Roman Gonzalez approached them.  Police say the three were armed and one of them shot and killed Krueger.  Gonzalez was 17-years-old at the time, so the death penalty cannot be applied to him. However, Diaz was 20-years-old at the time and Smith was 18.

In the second case, Travis Bredhold is accused of allegedly robbing and killing gas station attendant Mukeshbhai Patel in 2013.  Bredhold was 18-years-old at the time.

If things stand as they currently do, Bredhold, Diaz, and Smith will not face the death penalty. In Fayette County Circuit Court, Judge Ernesto Scorsone ruled the death penalty is unconstitutional for people in that age range because new science shows their brains are still developing and they lack the maturity to assess risks and control their impulses.

The defendants' lawyer, who wants the Supreme Court of Kentucky to uphold Scorsone's ruling, used the science argument in court today.  "In 2005, we thought the problem with juvenile misbehavior was simply that the brakes were defective," said defense lawyer Timothy Arnold.  "Now, we know they have their foot on the gas and they are flooring it between the ages of 18 and 20."

The Attorney General's Office argued against that, hoping to convince the Court to overturn the Scorsone's ruling. "Judge Ernesto Scorsone of the Fayette Circuit Court abused his power when he decided that 18 to 20 year olds were exempt from the death penalty," said assistant state attorney general Matthew Krygiel.

The Attorney General's Office argued that the Supreme Court of the United States set the age for capital punishment at 18 and that should be followed.  Krygiel reiterated that 18 is the legal age of an adult in the United States. "Being 18 years old, you can enlist in the Army," said Krygiel. "They give you an assault rifle and send you halfway across the world, and after some basic training on the rules of engagement, you're going to decide whether or not to pull a trigger and shoot somebody."

However, the defense lawyer believes the Kentucky Supreme Court has the power to revisit the age limit. Arnold argued that given the new science available, 18 to 21 year olds should not have capital punishment as a penalty option. "To be clear, nobody's proposing throwing a parade for anybody," said Arnold.  "What we are saying is simply that they're not eligible for the death penalty.  They'll still be eligible for life without parole or any other penalty that would be applicable to somebody who committed a serious crime. The death penalty is reserved for the worst of the worst, and science shows that they're not that."

Prior related post:

September 20, 2019 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, September 19, 2019

"Timbs v. Indiana: Toward the Regulation of Mercenary Criminal Justice"

The title of this post is the title of this new article forthcoming in the Federal Sentencing Reporter authored by Wayne Logan and now available via SSRN.  Here is its abstract:

In Timbs v. Indiana, the Supreme Court unanimously held that the Eighth Amendment's Excessive Fines Clause is an incorporated protection under the Fourteenth Amendment and therefore regulates state and local governments.  The unanimous result, wedding liberal and conservative Justices alike, was backed by an ideologically diverse group of amici, including the ACLU, the U.S. Chamber of Commerce, and the Cato Institute.  The government practice giving rise to the litigation — civil asset forfeiture — has been subject to widespread criticism, fueled by troubling accounts of what has come to be known as “policing for profit.”  Reaction to Timbs ran the gamut from regarding it as “huge” to being a decision having little impact.  As I discuss in this symposium contribution, Timbs is important both because it provides a new federal constitutional basis to regulate government targeting of criminal defendants for revenue generation and signals the Court’s broader recognition of the problematic nature of the widespread practice.

September 19, 2019 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Prez candidate Beto O'Rourke proposes "Drug War Justice Grants" funding by marijuana tax revenues

As reported in this Hill piece,"President hopeful Beto O'Rourke on Thursday unveiled a plan to legalize marijuana and end the war on drugs." Here are the basics:

The former Texas congressman would grant clemency to those currently serving sentences for marijuana possession, establish a model for marijuana legalization and give grants to those affected by the war on drugs to help them benefit from the new industry.

The “Drug War Justice Grants” would be given to those formerly incarcerated for nonviolent marijuana offenses in state and federal prison. Licenses to produce, distribute, or sell marijuana would be funneled to minority-owned businesses and fees would be waived for low-income individuals who had previously been convicted of related offenses.

“We need to not only end the prohibition on marijuana, but also repair the damage done to the communities of color disproportionately locked up in our criminal justice system or locked out of opportunity because of the War on Drugs,” O'Rourke said in a statement.

This page on the O'Rourke campaign website provides some background and details, and here are excerpts focused on criminal justice matters:

In January 2009, Beto O’Rourke, one of the youngest members of the El Paso City Council, introduced a longshot resolution calling for an “honest, open national debate” on ending the prohibition of marijuana.... To Beto’s surprise, the resolution passed unanimously. But the mayor vetoed the resolution later that day....

In 2011, Beto published the book Dealing Death and Drugs: The Big Business of Dope in the U.S. and Mexico: An Argument for Ending the Prohibition of Marijuana. Long before the legalization of marijuana was overwhelmingly popular with the American public, Beto laid out his case for ending the decades-long prohibition on marijuana and repairing the damage done to the communities of color that are disproportionately impacted....

The War on Drugs has been catastrophic for communities of color, and our policy toward marijuana has been particularly egregious. Despite similar rates of use, African-Americans are almost 4 times more likely to be arrested for marijuana possession than white people. Yet, a 2017 survey of marijuana business owners in states allowing them found that only 19% identified as non-white. These statistics tell the story of marijuana laws in our country, where certain communities have been subjected to over-policing and criminalization while others are being presented lucrative business opportunities. Beto is committed to rewriting this story and rectifying the harm caused by decades of unjust marijuana policy.

As President, Beto will:

Legalize Marijuana...

Use clemency power to release those currently serving sentences for marijuana possession and establish a review board to determine whether others currently serving sentences related to marijuana should be released;

Expunge the records of those who have been convicted for possession and prevent the conviction from precluding these individuals from accessing housing, employment, education, and federal benefits, or from having their driver’s licenses suspended;...

Remove cannabis-related charges as grounds for deportation or denial of citizenship. The Trump Administration has explicitly targeted those with marijuana possession convictions for deportation, even though marijuana has been legalized in 11 states and the District of Columbia.

Invest revenue from the marijuana industry in communities impacted by the War on Drugs through “Drug War Justice Grants” and Equitable Licensing Programs....

To guarantee that opportunities to profit from a regulated marijuana market are made available to communities disproportionately impacted by the War on Drugs, Beto will:

Call for a federal tax on the marijuana industry, revenue from which will be used to:

Provide a monthly “Drug War Justice Grant” to those formerly incarcerated for nonviolent marijuana offenses in state and federal prison for a period based on time served. The grants will be funded completely by the tax on the marijuana industry.

Fund substance use treatment programs.

Support re-entry services for those who have been incarcerated for possession.

Invest in communities disproportionately impacted by marijuana arrests, including investments in housing and employment support, substance use and mental health treatment, peer and recovery support services, life skills training, victims’ services.

Support those disproportionately impacted by marijuana arrests, including those who have been convicted of marijuana possession themselves in participating in the marijuana businesses by providing technical assistance, industry-specific training, access to interest free/low-interest loans, and access to investment financing and legal services.

Ensure those most impacted by the War on Drugs are the ones benefiting from the economic activity related to marijuna.

As President, Beto will tie federal funding for criminal justice systems to requirements that states or local governments:

Waive licensing fees for producing, distributing, or selling marijuana for low-income individuals who have been convicted of marijuana offenses.

September 19, 2019 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, September 18, 2019

Without discussion of 3553(a) factors, Eleventh Circuit needs just one sentence to declare 120 years (LWOP) imprisonment for child porn offenses reasonable

Earlier this month in this post, I flagged the Sixth Circuit panel ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), which concluded that a month-long sentence was unreasonably short after an intricate multi-page analysis of § 3553(a) factors.  The detailed circuit analysis especially faulted the district court's consideration of personal factors and the failure "to address the risk of sentence disparities."  In my post about the Boucher ruling, I noted that I favor reviewing courts conducting robust and searching forms of reasonableness review, but I  lamented the fact that circuit courts often seem much more interested in seriously questioning 30-day sentences when federal prosecutors appeal than in questioning 30-year sentences when federal defendants appeal.  

Interestingly, today I was alerted to a new Eleventh Circuit panel ruling in which it is not a 30-year sentences, but actually a 120-year sentence(!), that gets short shrift in the reasonableness review process.  Specifically, in US v. Kirby, No. 18-11253 (11th Cir. Sept. 17, 2019) (available here), the defendant was convicted after trial of three counts of producing child pornography and two counts of possessing child porn.   As described by the Eleventh Circuit panel, the defendant had a large (but not enormous) number of child porn images and he created (but did not distribute) many images of his "thirteen-year-old stepdaughter, either captured by hidden cameras in bathrooms or taken while Kirby was assisting his stepdaughter with stretches due to a sports injury [and also had one] pornographic image of a friend of [his] stepdaughter."  This is serious criminal behavior, but the district court responded (based it seems on a maxed-out guideline range of life) by maxing out all the counts to the statutory maximum and running the terms consecutively to arrive at sentence of 1440 months (120 years) of imprisonment.

In addition to making a technical challenge to how the guideline range of life was used by the district court, the defendant here contended that his sentence was substantively unreasonable.  After discussing the technical issues for a number of pages, here is the full substance of the Kirby panel's response to the reasonableness claim:

As an initial matter, Kirby’s argument is largely predicated on the erroneous conclusion that the district court imposed an above-guidelines sentence.  Regardless, the sentence was not unreasonable.  Before imposing the longest sentence that it could, the district court thoroughly discussed Kirby’s particularly heinous conduct and direct participation in the creation of child pornography, his breach of public trust as a police officer, and his total failure to take responsibility for his actions.

Without seeing the full factual record or the parties' briefs, I am disinclined to assert that the substantive judgment of reasonableness here was obviously wrong.  But where is the circuit concern in this case for the district court's consideration of personal factors and the failure to address the risk of sentence disparities?   And what does strike me as obviously wrong is the obvious fact that there is such a contrast in the amount of attention and deliberation given to the reasonableness claims in cases like Boucher and Kirby.  As long as reviewing courts (and so many others) are so much more likely to worry so much more about undue leniency than about undue severity, over-incarceration will still define our criminal justice systems.

September 18, 2019 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)