Monday, November 12, 2018

More encouraging clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  A helpful reader alerted me to notable additional news on this front reported in this two local articles:

"Board recommends clemency for 22 drug possession offenders." Excerpts:

Nearly two dozen offenders were recommended for clemency Wednesday, the first wave of hopefuls for early release from lengthy felony prison sentences for simple drug possession two years after voters approved turning that crime into a misdemeanor. State Question 780 isn’t retroactive, so Project Commutation sought deserving prisoners who were considered ideal candidates to have their sentences drastically shortened in line with the sentencing reform measure.

Kris Steele, chairman of Oklahomans for Criminal Justice Reform, is spearheading the movement and a member of the board voting on the commutation requests. Steele said a governor’s staff member was present for Wednesday’s all-day proceedings and expressed to him that Gov. Mary Fallin is committed to signing off on the cases before the new year.

The commutations modify sentences but don’t erase convictions. Fallin has final authority to approve, deny or modify the Oklahoma Pardon and Parole Board’s recommendations within 90 days. “Gov. Fallin has been monitoring these cases closely and has taken an interest in trying to expedite the process of the governor’s approval, with the intent, as I understand it, to get these individuals home together with their families by the end of the year,” Steele said.

Twenty-three offenders had their cases for commutations heard Wednesday by the five-member pardon and parole board. Only one offender failed to garner a simple majority vote, with concerns about misconduct in prison perhaps influencing decisions. Oklahomans for Criminal Justice Reform launched Project Commutation in partnership with the Tulsa County Public Defender’s Office. Another eight applicants — the final ones in this commutation campaign — will be on the docket in December.

Starting July 1, 2017, State Question 780 made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. The maximum sentence for simple drug possession now is one year in jail.  Sentences considered Wednesday were for between 10 years and 40 years long, with time served from five months to nearly three years.  “Twenty-two of 23 of the people that we helped with applications were mothers in prison serving decades had they not gone through this process,” said Corbin Brewster, Tulsa County chief public defender.  “The impact beyond the incarceration on their families is just enormous.”...

University of Tulsa law students helped to interview and whittle down a field of 700 applicants to 49 for the first stage of the commutation process. There are 31 who made it through to the second and final stage before the governor’s desk.

"Oklahoma group wants to build on success of commutation project for prisoners with drug possession charges." Excerpts:

During commutation hearings last week, offenders offered numerous reasons for why they were unable to succeed in alternative drug courts. Failing stuck them with lengthy prison sentences for possessing drugs.

Project Commutation has been an opportunity for a handful of convicts to earn another shot at a new life, advocating for clemency after State Question 780 turned simple drug possession into a misdemeanor rather than a felony.  But Oklahomans for Criminal Justice Reform wants more — the advocacy group intends to encourage lawmakers in the upcoming legislative session to apply the law retroactively.

“The Legislature will kick off in early February, and we are urging them to look at these sentences,” said Danielle Ezell, an OCJR board member, as she stood outside the correctional center where the commutation hearings took place Wednesday. “There’s over 1,000 folks in for simple drug possession that, if charged today, would not be incarcerated. And we would like to see those charges (retroactively addressed).”

Prior related posts:

November 12, 2018 in Clemency and Pardons, Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Sunday, November 11, 2018

"US Criminal Justice Policy and Practice in the Twenty‐First Century: Toward the End of Mass Incarceration?"

The title of this post is the title of this new paper now available via SSRN and authored by Katherine Beckett, Lindsey Beach, Emily Knaphus and Anna Reosti.  Here is its abstract:

Although the wisdom of mass incarceration is now widely questioned, incarceration rates have fallen far less than what would be predicted on the basis of crime trends.  Informed by institutional studies of path dependence, sociolegal scholarship on legal discretion, and research suggesting that “late mass incarceration” is characterized by a moderated response to nonviolent crime but even stronger penalties for violent offenses, this article analyzes recent sentencing‐related reforms and case processing outcomes.  Although the legislative findings reveal widespread willingness to moderate penalties for nonviolent crimes, the results also reveal a notably heightened system response to both violent and nonviolent crimes at the level of case processing.

These findings help explain why the decline in incarceration rates has been notably smaller than the drop in crime rates and are consistent with the literature on path dependence, which emphasizes that massive institutional developments enhance the capacity and motivation of institutional actors to preserve jobs, resources, and authorities.  The findings also underscore the importance of analyzing on‐the‐ground case processing outcomes as well as formal law when assessing the state and fate of complex institutional developments such as mass incarceration.

November 11, 2018 in Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

How about a few clemency grants, Prez Trump, to really honor vets in need on Veterans Day?

Five years ago in this post, I noted that on Veterans Day I often find myself thinking about veterans who, after serving our country in the military and thereby supporting of our nation's commitment to liberty and freedom, return home and discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  This 2015 report on "Veterans in Prison and Jail, 2011–12" found that in "2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."

In my Veterans Day 2013 post, I asked "How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?".  Five years later, especially after Prez Trump talked up possibly granting thousands of clemencies earlier this year, it seems fitting to pose the same question to Prez Obama's successor.  It also seems worthwhile to link to posts from the summer and thereafter highlights reports and comments by Prez Trump which generated lots of clemency optimism on which he has yet to deliver.

A few of many recent related posts: 

November 11, 2018 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, November 10, 2018

Fraternal Order of Police now supporting FIRST STEP Act with some sentencing reform provisions

Roughly nine months ago, the President of the Fraternal Order of Police (FOP) wrote this three-page letter to the President of the United States expressing opposition to the Sentencing Reform and Corrections Act.  But yesterday, in what seems to me to be a important and encouraging development, the FOP released this one-page statement headed "FOP Partners with President Trump on Criminal Justice Reform."

The new FOP release should be read in full, as it indicates support for adding modest sentencing reforms to the FIRST STEP Act bill that was passed by the House earlier this year.  In addition, the sub-heading of the press release says "Revised and amended First Step Act to be introduced next week." This strongly suggests that "Beltway insiders" are prepared and planning to try to get big federal statutory sentencing reform done in a matter of weeks.

November 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

"Farewell to the Felonry"

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

Bastard.  Idiot.  Imbecile.  Pauper.  Felon.  These terms, medieval in origin, have served as formal legal designations and also the brands of substantial social stigma.  As legal designations, the terms marked persons for different sorts of membership in a political community.  The rights and privileges of these persons could be restricted or denied altogether. Today, most of these terms have been abandoned as labels for official classifications.  But the terms felon and felony remain central to American criminal law, even after other developed democracies have formally abolished the felon/felony category.  “Felony” has connotations of extreme wickedness and an especially severe crime, but the official legal meaning of felony is a pure legal construct: any crime punishable by more than a year in prison.  So many and such disparate crimes are now felonies that there is no unifying principle to justify the classification.  And yet, the designation of a crime as a felony, or of a person as a felon, still carries great significance.  Even beyond the well-documented “collateral” consequences of a felony conviction, the classification of persons as felons is central to the mechanics of mass incarceration and to inequality both in and out of the criminal justice system.  American law provides the felonry —the group of persons convicted of felonies — a form of subordinate political membership that contrasts with the rights and privileges of the full-fledged citizenry.

The felon should go the way of the bastard, into the dustbins of legal history.  If that outcome seems unlikely, it is worth asking why a category long known to be incoherent should be so difficult to remove from the law.  This Article examines felony in order to scrutinize more broadly the conceptual structure of criminal law.  Criminal laws, and even their most common critiques and arguments for reform, often appeal to the same naturalistic understanding of crime and punishment that gives felon its social meaning.  When we imagine crime as a natural, pre-legal wrong and the criminal as intrinsically deserving of suffering, we displace responsibility for the law’s burdens from the community that enacts the law and the officials that enforce it.  To bid farewell to the felonry could be a first step toward reclaiming responsibility for our criminal law.

November 10, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Friday, November 9, 2018

Michelle Alexander frets about "The Newest Jim Crow"

Michelle Alexander has this notable new New York Times opinion piece headlined ""The Newest Jim Crow: Recent criminal justice reforms contain the seeds of a frightening system of 'e-carceration'." I recommend the piece in full, and here are excerpts:

Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point.  Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019.  And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.”  Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.  As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets.  Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee.  Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood.  One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this?  Private corporations.  According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.  Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population.  Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control....

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell.  Yet I find it difficult to call this progress.  As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.  By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.  I would too.  But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems.  Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.”  But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing.  While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

November 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (3)

Despite Issue 1's overwhelming defeat, Ohio leaders still talking optimistically about state criminal justice reforms

I have been worried that this week's overwhelming defeat of the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, could mean that long-stalled major reform efforts in Ohio would remain stalled.  But this local article, headlined "After Issue 1 fails, state leaders vow to take up criminal justice reform," provides an encouraging outlook on the prospects of reform in the Buckeye state through the usual legislative channels. Here are excerpts:

After voters statewide rejected Issue 1 this week, state lawmakers are ready to move forward on criminal justice reforms, legislative leaders said Thursday.

Ohio’s “big three” political leaders — Senate President Larry Obhof, House Speaker Ryan Smith, and Gov.-elect Mike DeWine — each applauded the failure of State Issue 1, a proposed constitutional amendment that would have changed criminal sentences. Voters rejected it 36.6 percent to 63.4 percent, according to unofficial results. Judges and elected Republicans largely opposed Issue 1, saying it was a flawed proposal that didn’t belong in the Ohio Constitution.

Obhof, R-Medina, said Thursday he will introduce a bill in the upcoming weeks that calls for reducing low-level drug felony offenses to misdemeanors; install a presumption for probation over prison if the offender agrees to drug treatment; allow people currently incarcerated for certain drug crimes to petition the court to be re-sentenced.

The bill will be based on a proposal developed by Franklin County Prosecutor Ron O’Brien, a Republican, and Columbus City Attorney Zach Klein, a Democrat. The two ran against one another in 2016.

Obhof wants to take quick action on the bill, before Gov. John Kasich leaves office and the current legislative session ends. However, if it doesn’t get through by the end of the year, he plans to bring it back next year.

DeWine said criminal justice reform would be a priority for his administration, which starts in January, but he did not provide details of how that might take shape.

For the past year, policy leaders have been doing a deep dive into Ohio’s interconnected criminal justice issues: prison overcrowding, the opiate crisis, mental health treatment, falling crime rates, rising murder and assault rates, recidivism rates and more. A final report will make recommendations for lawmakers to consider in 2019.

Nearly 60 percent of all felony sentences in Ohio are for drug and property crimes, according to the Council of State Governments analysis of Ohio Bureau of Criminal Investigation and Identification data.

And while Ohio’s recidivism rate — those returning to prison within three years of release — is lower than the national rate, it crept up 1.5 percentage points to 30.73 percent, according to the Ohio Department of Rehabilitation and Correction. “That concerns me but it’s good that we’re still substantially better than the national average. I still think that our prison population is too high,” Obhof said.

November 9, 2018 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, November 8, 2018

"The Death Penalty as Incapacitation"

The title of this post is the title of this new paper available via SSRN authored by Marah Stith McLeod.  Here is its abstract:

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence.  The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary.  The view on the ground could not be more different.  Hundreds of executions have been premised on the need to protect society from dangerous offenders.  Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary.  Yet solitary confinement and life without parole entail new harms — either torturous isolation or inadequate restraint. Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time.

This Article illuminates the remarkable history, influence, and normative import of the incapacitation rationale, and shows how serious engagement with the incapacitation rationale can lead to practical reforms that would make the death penalty more fair.  It concludes by highlighting several of the most promising reforms.

November 8, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Interesting talk of prison reform amidst talk of Chris Christie as possible Attorney General replacement

This new CNN article includes lots of interest for federal criminal justice reform fans under the headline "Trump considering Christie, Bondi for attorney general." Here are excerpts:

President Donald Trump is considering former New Jersey Gov. Chris Christie and Florida Attorney General Pam Bondi to replace fired Attorney General Jeff Sessions, sources familiar with the matter said.

Trump fired Sessions on Wednesday without immediately naming a replacement, instead installing Sessions' chief of staff Matthew Whitaker as acting attorney general. Both Christie and Bondi are longtime political allies of the President's and were initially considered contenders for the Justice Department perch during the transition.

Given Trump's longstanding frustrations with Sessions, other potential contenders have cropped up in Trump-friendly circles in recent months, including Whitaker, Solicitor General Noel Francisco, Rep. John Ratcliffe, R-Texas, former Judge John Michael Luttig, Judge Edith Jones, former Judge Janice Rogers Brown, retiring Rep. Trey Gowdy, R-South Carolina and Sen. Lindsey Graham, R-South Carolina.

If nominated, Christie, a former US attorney, could face similar calls to the ones Sessions faced to recuse himself from special counsel Robert Mueller's investigation given his role as a prominent 2016 campaign surrogate for Trump. But unlike Sessions, there is no indication he had contacts with Russian officials during the 2016 campaign or transition.

Christie attended a previously scheduled law enforcement roundtable on prison reform efforts at the White House on Thursday morning, an administration official and source familiar with the meeting said.

Christie then met privately with the President's son-in-law and senior adviser Jared Kushner to further discuss prison reform issues, an administration official who works on the prison reform effort said.

Kushner and Christie have long been reported to have bad blood stemming from Christie's role as US attorney in prosecuting Kushner's father on 18 counts of tax evasion, witness tampering and illegal campaign donations.

But the administration official said Kushner and Christie have a good relationship. "They've been working really closely on this for months," the administration official said. "Despite the fact that people have suggested otherwise, the two have a really close and good working relationship, particularly as it relates to prison reform."...

Prison reform has been a key agenda item for Kushner and Christie would likely be an important ally in that effort were he to be tapped for attorney general.

While Christie has been a friend of Trump's since before the 2016 campaign, the former New Jersey governor has been critical of Trump's handling of the Mueller investigation and instead praised Mueller amid the President's public criticism of the special counsel. "I've told him (Trump) many times that there's no way to make an investigation like this shorter, but there's lots of ways to make it longer, and he's executed on a number of those ways to make it longer," Christie said in May at the University of Chicago, while calling Mueller "an honest ... hard-working guy."

Christie has also rejected arguments by Trump's personal legal team that the President cannot obstruct justice, calling it "an outrageous claim" on ABC this summer.

November 8, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Brennan Center wasting no time advocating for sentencing reforms after election and ouster of AG Jeff Sessions

The folks over at the Brennan Center already have two short pieces up making the case for Congress to move forward with federal sentencing reforms and for the Senate Judiciary Committee to seek to ensure the next Attorney General cares about criminal justice reform.  Here are links to the pieces with some excerpts:

"Sentencing Reform Should Be a Top Post-Election Priority for Congress

As Congress prepares to enter a lame-duck session following yesterday’s midterm elections, it has a rare opportunity to pass bipartisan legislation that will help reform our criminal justice system and end mass incarceration. And sentencing reform must be included in any meaningful effort to reduce the number of people entering the federal prison system....

Criminal justice reform is a rare point of bipartisan consensus in today’s polarized climate. In fact, 71 percent of Americans surveyed – including a majority of Trump voters – agree that it’s important to reduce the country’s prison population. And there’s substantial support from key members of Congress – both Republican and Democrat – for comprehensive reform. In fact, Senate Majority Leader Mitch McConnell has signaled he would call a vote after the midterm election if more than 60 senators support the bill.

With that momentum, one of Congress’s first agenda items for this year’s “lame-duck” session should be to pass legislation that will help reduce mass incarceration. And any successful effort will start with sentencing reform.

"With Sessions Gone, the GOP Can Show It Cares About Criminal Justice Reform"

Sen. Chuck Grassley (R-Iowa) is a reliable and trusted ally for criminal justice reform advocates, both right and left.  So when President Trump nominated Jeff Sessions to lead the Justice Department, it came as something of a surprise that Grassley, as chair of the Senate Judiciary Committee, cleared the deck for him, ensuring a quick and easy Senate confirmation.

If Grassley later came to regret that — and there’s reason to believe he did — today offers a chance to correct it.  Against the backdrop of our looming, slow-burning constitutional crisis, Grassley can and should make support for criminal justice reform a litmus test for the next attorney general.  He has that power.  Now is the time to use it....

[I]f Trump is serious about criminal justice reform, he should simply refuse to nominate someone who doesn’t support sentencing reform.  And whether or not he follows through, Grassley should refuse to confirm anyone who will oppose or sabotage similar reform efforts.

Realistically, though, the best chance for guaranteeing a supportive attorney general rests with Grassley and other supporters of criminal justice reform on the Judiciary Committee, like Mike Lee (R-Utah), Dick Durbin (D-Ill.), and even, sometimes, Lindsey Graham (R-S.C.).  By demanding an attorney general who will back their words with action — and faithfully implement rather than sabotage any reform package they pass — Grassley and his committee could effect a major reset, giving the country a chance to move on from at least one aspect of the last two years.

November 8, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

SCOTUS relisting packet of cases dealing with application of Hurst v. Florida to past cases

It has been (too?) many months since I have had occasion to talk about what I have long called the "post-Hurst hydra."  As regular readers may be pained to recall, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation that developed in various ways in various courts as state and federal judges tried to make sense of just what the Supreme Court's January 2016 decision in Hurst v. Florida, which declared Florida's death penalty procedures violative of the Sixth Amendment, must mean for past, present and future capital cases.  But the "post-Hurst hydra" is on my mind this morning because of the latest "Rewatch List" from John Elwood at SCOTUSblog, which includes these two paragraphs (with links from the original):

Once again, we have a group of seven relisted cases all presenting the same issue and all involving the same respondent.  Each of the seven involves a Florida man convicted of capital murder and sentenced to the death penalty.  The issue should be familiar to Relist Watch readers. In Hurst v. Florida, the Supreme Court held 8-1 in an opinion by Sotomayor that Florida’s capital-sentencing scheme — under which a jury rendered an “advisory sentence” but a judge had to independently weigh the aggravating and mitigating factors before entering a sentence of life or death — violated the Sixth Amendment’s requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death.  The Florida Supreme Court later held that Hurst error was harmless because juries had to unanimously find beyond a reasonable doubt all the elements necessary to support imposition of the death penalty.  But since that time, challenger after challenger has argued that the Florida Supreme Court’s harmless-error conclusion cannot be squared with Caldwell v. Mississippi, which held that it is constitutionally impermissible to rest a death sentence on a determination made by a jury that has been led to believe that the responsibility for determining the appropriateness of the death sentence rests with someone else. This issue has yielded multiple dissents from denial of cert, in Truehill v. Florida (Sotomayor dissenting, joined by Justices Ruth Bader Ginsburg and Stephen Breyer; Breyer also dissented separately), Middleton v. Florida (identical lineup), Guardado v. Florida (Sotomayor dissenting alone), and Kaczmar v. Florida (Sotomayor dissenting alone).

Now we have seven more such cases — including one that was the subject of a previous dissent: Guardado v. Florida17-9284Philmore v. Florida17-9556Tanzi v. Florida18-5160Reynolds v. Florida18-5181Franklin v. Florida18-5228Grim v. Florida18-5518, and Johnston v. Florida18-5793.  The arrival of seven cases at once presents Sotomayor with her best opportunity yet to make the case that the issue is a recurring and important one. The big question now is whether Justice Elena Kagan (or some other justice) is now ready to provide a fourth vote to grant — or whether Sotomayor will be filing yet another dissent from denial on this issue.  And to get into the weeds a bit, these cases provide yet another example of what a good job the Supreme Court and its staff do of tracking related cases on the court’s crowded docket.

November 8, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 7, 2018

Jeff Sessions is no longer Attorney General of the United States

In a development that bodes well for federal criminal justice reform and marijuana reform, Attorney General Jeff Sessions has submitted his resignation in letter to President Donald Trump. Prez Trump has two tweets in response:

We are pleased to announce that Matthew G. Whitaker, Chief of Staff to Attorney General Jeff Sessions at the Department of Justice, will become our new Acting Attorney General of the United States. He will serve our Country well....

....We thank Attorney General Jeff Sessions for his service, and wish him well! A permanent replacement will be nominated at a later date.

UPDATE: This Fox News piece includes the former Attorney General's resignation letter and details about how this came to pass:

Sources told Fox News that Trump did not call Sessions, but rather White House Chief of Staff John Kelly informed him of the president’s request for him to resign.  Sessions is expected to leave the Justice Department by the end of the day and Whitaker is expected to be sworn in Wednesday.

In his resignation letter, Sessions said was “honored to serve” as attorney general and said his Justice Department “restored and upheld the rule of law -- a glorious tradition that each of us has a responsibility to safeguard.”

November 7, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (4)

Method matters: initial thoughts about Issue 1's big loss in Ohio

Regular readers know I had been following closely the debate over the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio known as Issue 1.  A variety of factors had led me to expect that Issue 1 would lose, but surprisingly strong polling and all the "blue wave" talk had me thinking it might have a shot.   I certainly did not expect that it would get crushed, going down to defeat 63.5% to 36.5%. 

Issue 1's huge 27%-point loss is startling given that Ohio's Democratic Senator Sherrod Brown won re-election by 6% points and its Democratic Governor candidate Richard Cordray, who endorsed Issue 1, lost by only 4% points.  This means that a huge number of progressively minded voters decided to vote for liberal candidates and against Issue 1.  (A county-level analysis highlights this reality in various ways: e.g., in Lucas County (where Toledo is located), Senator Brown prevailed by 33% points, but Issue 1 still lost that county by 4% points.)

Issue 1's huge 27%-point loss is even more startling given that a somewhat similar ballot initiative in 2016 passed in Oklahoma with flying colors, winning by 16% points with a margin of 58% to 42%.  Given that Oklahoma is a seemingly much "redder" state than Ohio and that 2016 was seemingly a somewhat "redder" election than 2018, the 43% difference in outcomes in these initiatives leads me to the (obvious?) conclusion that just how a criminal justice reform is pursued through a ballot initiative can make a VERY big difference.

Of particular significance, it seems, is both the form of the initiative and who is part of the reform team.  In Oklahoma, the 2016 initiative sought a fairly modest statutory change; in Ohio, the 2018 initiative pursued a fairly aggressive set of reforms that would be locked into the state constitution.  Perhaps even more importantly, legislative "insiders" and other state GOP leaders were integrally involved in drafting and getting the Oklahoma initiative on the ballot in 2016.  The same type of insiders seemingly had no role in the Ohio campaign, and thus nearly all of them -- most notably, all the GOP candidates and many prominent judges, prosecutors and police -- actively campaigned against Issue 1.

I am hopeful state-level reformers in Ohio and elsewhere will continue to see the potential that direct democracy provides.  But reformer can and should learn from losses as well as victories, and there seems to be a lot to learn after a big loss in Ohio.

November 7, 2018 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

Based on oral argument in lethal injection case, is there reason to think Justice Kavanaugh could end up a swing voter in some capital cases?

The question in the title of this post is a product of my inclination to make too much of this New York Times report and this SCOTUSblog review of Justice Brett Kavanaugh's oral argument performance in Bucklew v. Precythe, a capital case from Missouri involving an "as applied" Eighth Amendment challenge to lethal injection.  The Times piece is headlined "Kavanaugh May Hold Key Vote in His First Death Penalty Case," and here are excerpts:

The Supreme Court heard arguments on Tuesday in an appeal from a death row inmate in Missouri with a rare medical condition that he says will cause excruciating pain if he is put to death by lethal injection. Lawyers for the inmate, Russell Bucklew, said his condition, cavernous hemangioma, would make him choke on his own blood during his execution.

It was Justice Brett M. Kavanaugh’s first death penalty case, and there is good reason to think that he holds the crucial vote. In March, five justices voted to stay Mr. Bucklew’s execution. Justice Anthony M. Kennedy, whom Justice Kavanaugh replaced, joined the court’s four more liberal members to form a majority; the court’s four more conservative justices were in dissent.

Much of Tuesday’s argument concerned earlier Supreme Court decisions that required inmates challenging lethal injection protocols to identify available and preferable methods of execution. Mr. Bucklew said lethal gas was preferable to the state’s current method of an injection of a lethal dose of pentobarbital. But the United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that Mr. Bucklew had not shown that his alternative would be less painful.

Justice Kavanaugh seemed to express doubts about the requirement of identifying an alternative, at least where the usual method of execution coupled with an inmate’s unusual medical condition could produce excruciating pain. “Are you saying,” he asked a lawyer for the state, “even if the method creates gruesome and brutal pain you can still do it because there’s no alternative?”

The lawyer, D. John Sauer, did not immediately give a direct response, and Justice Kavanaugh pressed him. “Is that a yes?” Justice Kavanaugh asked. “Yes, it is, Your Honor,” Mr. Sauer said....

“What the Eighth Amendment prohibits is the unnecessary infliction of pain,” Chief Justice Roberts said. “If the death penalty is constitutional, as it now is, there must be a way to administer it. But if you can show that there’s another way that is less painful, then the theory is, again, that it’s an Eighth Amendment claim because it’s unnecessary pain.”

The chief justice questioned Mr. Bucklew’s proposed alternative of nitrogen gas. “How can it be a reasonable alternative if it’s never been used before?” he asked. Robert Hochman, a lawyer for Mr. Bucklew, said that “there are details to be worked out.”

The SCOTUSblg argument review includes these observations:

The justices were relatively subdued but seemed to be mostly divided along ideological lines, and it seemed very possible that the outcome could hinge on the vote of the court’s newest justice, Brett Kavanaugh, who at times appeared sympathetic to Bucklew....

Kavanaugh appeared concerned about the prospect that inmates like Bucklew could suffer excruciating pain as a result of the method of execution selected by the state.  He asked Missouri Solicitor General John Sauer, who argued for the state, whether an execution could go forward even if would create “gruesome brutal pain.”  When Sauer responded that it could, Kavanaugh pressed him to explain whether there were any limits on how much pain the execution could inflict. Sauer’s answer: Yes, an execution could not go forward if the pain were so gruesome and brutal that the state would be deliberately inflicting pain for the sake of pain.

I am still inclined to predict that the defendant is going to lose here, but these reports still lead me to wonder whether Justice Kavanaugh could prove to be more open generally to claims of capital defendants than other conservative justices.

Prior related post:

November 7, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 6, 2018

Criminal justice reform ballot measures passing in Florida and Louisiana, but losing badly in Ohio

As noted in prior posts here and here, a whole lot of criminal justice matters were before voters this year. And though results are not yet official, it seems there are a few notable winners and one big loser:

Florida's Amendment 4, which would restore people’s voting rights after they finish their sentences (with a few exceptions), and Amendment 11, which enables the repeal or reform of criminal laws to be applied retroactively, both appear on pace to pass.

And Louisiana's Amendment 2, eliminating non-unanimous jury verdicts in felony trials, also looks to pass.

But Ohio's Issue 1, which sought to reduce all drug possession offenses to misdemeanors and enhance sentence reductions for prisoners participating in rehabilitative programs, has been soundly defeated.

November 6, 2018 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Mandatory minimum drives US District Judge to countenance arguments for jury nullification in federal child porn case

Over at Reason, J.D. Tuccille has this remarkable report about a remarkable federal prosecution in Connecticut under the headline "Federal Judge Advocates Jury Nullification After Being Shocked by Overzealous Child Pornography Prosecution."  Based on the description that follow under the headline, I am not entirely sure it is quite right to say the judge is advocating for nullification. But readers should click through and here is a piece of the story:

"This is a shocking case. This is a case that calls for jury nullification."

Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge — District Judge Stefan R. Underhill of the District of Connecticut — and he spoke in court about a case over which he presided.

The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce."  And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.

That draconian sentence — independent of what was in store in the entirely separate state trial for sex with a minor — was too much for Judge Underhill.  "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court.  "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that.  I don't feel I'm required to preclude that.  And I think justice requires that I permit that."...

"Juries exist for a reason," Pattis argued in court.  "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof.  And in certain trials in our history, juries have done more than that.  They've said the law is wrong, and we, the people, say it's wrong."

In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."  Normally, that's where the matter would have remained.  Judges don't generally want jurors told they can pull the plug on a prosecution because they don't like the law or the possible sentence.  They're generally not permitted to inform juries about nullification, and they're discouraged from informing juries about the consequences in store for convicted defendants.

However, that doesn't mean judges must ban all discussion of jury nullification and sentencing from trials. And occasionally you run across one who is horrified by what prosecutors have in mind. That's why Pattis, who passionately believes in the right to nullification, keeps arguing for a principle that generally gets shot down in court. And last week, he found a judge sympathetic with his arguments.

The U.S. Attorney's Office for the District of Connecticut declined to comment on this case, but did provide me with a copy of the emergency motion it filed seeking a stay in the trial. Prosecutors want time to get a higher court to prevent Judge Underhill from allowing Manzano's defense counsel to inform jurors of the potential sentence and argue for jury nullification.

I have long thought that juries should be informed of the basic sentencing consequences that go with guilty verdict (and I am also generally a fan of jury sentencing). I also think informing juries of sentencing consequences might reasonably be viewed as a requirement of the Sixth Amendment and the Apprendi line of cases.

And, speaking of provisions of the Constitution, it seems to me that this case, if there were a conviction, calls for serious consideration of the Eighth Amendment's limits on grossly disproportionate sentences. If the full offense here is just taking (and then deleting) a video of a teenager having consensual sex, I have a very difficult time seeing how one would not conclude, in the word of Harmelin v. Michigan, that "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality."

November 6, 2018 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (5)

Is it too soon to start making predictions about 2020 swing-state criminal justice ballot initiatives?

I have been following closely the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, in part because I think it could be a sign of things to come in state criminal justice reform efforts.  Notably, California in 2014 and Oklahoma(!) in 2016 charted a path for this kind of initiative effort, but Ohio is a special kind of swing state that rightly garners a special kind of electoral attention.  And this new Washington Post piece, headlined "Ohio ballot initiative on drug penalties is motivating voters in Cleveland," spotlights why I am already thinking ahead to 2020 before seeing any official results from 2018:

Many African American voters here cited two motivations for getting to the polls: to vote against a Republican Party they see as increasingly hostile to their community and to support Issue 1, which would reduce drug penalties.

Kim Thomas, minority engagement consultant for the Cuyahoga County Democratic Party, said the ballot initiative is helping turn out voters in Cleveland. “Lots of black people went to jail for crack in the 1980s, and a lot of them are still there. Right now, the minority community is saying, ‘No more, no more,'” she said. “We want the same opportunity for treatment instead of jail time, and if Issue 1 is gonna speak to that, then we’re gonna support it.”...

Darrell Johnson, 50, an out-of-work phlebotomist, cites voting rights as a primary reason for approving Issue 1. “You might get a felony charge for marijuana and you will never vote again in your life,” he said. He sees penalties being applied unevenly, based on race. “I know white people who get caught, they get sent to programs. They can still vote. But we can’t.”

Cuyahoga County Board of Elections officials are calling voter turnout for this midterm election “historic.” Mike West, a manager with the elections board, said the county hit at least 18,000 early voters as of 2 p.m., compared with about 6,000 in the 2014 midterms and 5,000 in the 2010 midterms. 

Because lots of factors are influencing turn-out this election cycle in Ohio and elsewhere, it will be hard to say with any certainty that a criminal justice reform initiative played a special role in getting certain voters to the polls. But there are plenty of reasons to believe ballot initiatives on topics like marijuana legalization and criminal justice reform can get younger voters and minority voters somewhat more interested in exercising the franchise. And with so many big swing states having an initiative process — states like Arizona, Colorado, Florida, Michigan, Nevada along with Ohio — I suspect we may see an even larger number of big criminal justice ballot efforts in 2020 than we have seen this year (which already has a whole lot).

November 6, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, November 5, 2018

Reviewing some previews of Bucklew v. Precythe

The Supreme Court on Tuesday, Nov 6 will hear oral argument in Bucklew v. Precythe, a capital case from Missouri involving an "as applied" Eighth Amendment challenge to lethal injection.  Amy Howe at SCOTUSBlog has this argument preview titled "Justices to consider another lethal-injection challenge, this time by inmate with complicated medical history."  It starts and ends this way:

[T]he Supreme Court will hear oral argument in the case of Russell Bucklew, a Missouri death-row inmate who argues that the state’s plan to execute him by lethal injection violates the Constitution’s ban on cruel and unusual punishment because he suffers from a rare medical condition that could lead to his gagging on his own blood....

Normally, a death-row inmate whose execution has been put on hold can be cautiously optimistic about his chances for success, because a stay of execution requires at least five votes — enough for the inmate to win on the merits.  But Bucklew also knows that four justices — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — would have allowed his execution to go forward.  This means that one of the five votes to put Bucklew’s execution on hold presumably came from Justice Anthony Kennedy, who retired from the court on July 31.  Although not much is known about the views of Justice Brett Kavanaugh, who replaced Kennedy earlier this month, on capital punishment, Kavanaugh is generally regarded as significantly more conservative than Kennedy, which could bode poorly for Bucklew.

Paul Cassell at The Volokh Conspiracy has this discussion of Bucklew under the heading "Dilatory Tactics in a Death Penalty Case?".  It starts this way:

In 1996, Russell Bucklew murdered Michael Sanders as his two young sons — only four and six years old — watched their father bleed to death in front of them.  Then, as the young daughters of Bucklew's other victim, Stephanie Ray, cried and wailed for their mother, Bucklew handcuffed and dragged her away to endure hours of rape and torture.  Bucklew's reign of terror continued when he broke out of jail, forced victims to go into hiding, and ambushed one victim's mother in her own home. He was tried, convicted, and sentenced to death over 20 years ago.

Tomorrow the Supreme Court will hear oral arguments in Bucklew v. Precythe, in which Bucklew is raising an "as applied" challenge to Missouri's method of executing him (lethal injection).  Counsel of record Allyson Ho, several of her colleagues at Gibson, Dunn & Crutcher, and I have filed an amicus brief in support of Missouri.  We filed the brief on behalf of the sister of Michael Sanders and Arizona Voice for Crime Victims.  Our amicus brief urges the Court to reject Bucklew's challenge and end more than two decades of litigation.

November 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Any election eve predictions to go with a round-up of election day criminal justice round-ups?

I flagged in this post last week German Lopez's great extended Vox review of all the notable and different initiatives and candidates on the ballot that could have an impact on local, state and national criminal justice systems.  Since then, I have seen a number of other round-ups, and here a few piece that seem worth checking out:

From the Marshall Project, "Criminal Justice on the Tuesday Ballot: Our roundup: drugs, policing, juries, even slavery."

From Marijuana Business Daily, "Just before Election Day, here’s where public support for state marijuana issues stands."

From Law360, "5 Criminal Justice Reforms To Watch On Election Day"

From the Los Angeles Times, "From ex-felon voting rights to police shootings, criminal justice is on the ballot"

From the New York Times, "Ballot Initiatives Are Powerful. The Powerful Have Noticed."

As regular readers know, in part because I am based in Ohio and in part because it could have the biggest echoes, I have been following the ballot issue known here as Issue 1 most closely.  And yet, despite following it closely, I have no idea how it will come out and I am afraid to make any predictions (other than that the results will be "over-read").  That said, I am going to predict that a significant number of criminal justice reform initiatives will pass.  I am also going to predict that 2020 brings ever more criminal justice reform initiatives than has 2018. 

I welcome predictions (or advocacy) in the comments as we get ever closer to polls closing.

UPDATE Here are a few more round-ups:

From HuffPost, "Millions Of Voters Could Be About To Significantly Reform The Criminal Justice System"

From the Washington Post, "Where marijuana is on the ballot Tuesday — and where it’s most likely to win"

November 5, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

"Fictional Pleas"

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

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge.  With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant.  As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern.  It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences.  In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky.  Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

The first part of this Article is descriptive, exploring how and why actors in the criminal justice system — including defendants, prosecutors and judges — use fictional plea for the purposes of avoiding collateral consequences.  This Article proposes that in any individual case, a fictional plea may embody a fair and just result — the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.

But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process — namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process.  In this sense, fictional pleas serve as a case study in criminal justice problem solving.  Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution.  The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself.  Rather than a grounding principle, truth is nothing more than another factor to negotiate around.

November 5, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?

The question in the title of this post is prompted by this new Washington Examiner article headlined "Prison reform bill to include sentencing, setting up post-election fight." Here are excerpts:

Criminal justice reform advocates say sentencing reform provisions will be included in legislation unveiled shortly after midterm elections Tuesday, triggering an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill.

The First Step Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms, at the behest of Republican opponents.  Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package.

Two people close to the process tell the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill.

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, allowing a firearm sentencing enhancement to run concurrently with the underlying penalty, and allowing retroactive sentencing for crack cocaine cases judged under tougher historical laws.

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen,” Holden said. Holden said it’s his understanding that the sentencing language will also expand a “safety valve” option for judges to use discretion.

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. The second person said the provision is being finalized, but there will be “a clarification saying this does not change existing statutes relating to undocumented individuals in the federal system.”

A spokeswoman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, an influential advocate of the reforms, did not respond to requests for comment.

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill.  Last month, Trump said in a Fox News interview that Attorney General Jeff Sessions’ longstanding opposition to reforms did not represent him. "If he doesn't [support reform], then he gets overruled by me.  Because I make the decision, he doesn't," Trump said Oct. 11....

It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell, R-Ky., has promised a whip count after the election, and advocates believe it will make it clear with overwhelming support....

Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington.  Povah hopes that Congress passes the legislation, and that Trump will supplement the reform with generous use of his constitutional pardon powers. Last month, Trump said "a lot of people" are jailed for year for "no reason" and that he was actively looking to release some.

Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. “I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally," Povah said.  "He sent a lot of hope in that humans may be in line, maybe for the first time included in the Thanksgiving pardon."...

Trump has spoken repeatedly about his desire to release inmates from prison after commuting the life sentence of drug crime convict Alice Johnson in June at the request of celebrity Kim Kardashian West.  At a second Trump-Kardashian meeting, the TV star urged freedom for Chris Young, who was arrested at 22 and sentenced to life in prison for drug dealing. She brought with her former federal judge Kevin Sharp, who had imposed the sentence due to rigid federal laws he argued made little sense.  On his own, Trump mentioned another inmate, Matthew Charles, who returned to prison this year after a court found his drug sentence was reduced in error.

Some of many prior related posts:

UPDATE: I just saw that Law360 also has a new article on this front under the headline "Hard Decisions Loom In Lame-Duck Push For Sentencing Reform."  This lengthy piece starts with this sentence: "Over the next two months, Republican lawmakers have a chance to pass the most comprehensive criminal justice reforms in a generation, a combination of prison and sentencing reforms that stand to improve the lives of more than 180,000 federal inmates."

November 5, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Sunday, November 4, 2018

Some recent posts of note from Marijuana Law, Policy & Reform just before another big election

Though it has been only a few weeks since I did a round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, the coming election leads me to think another review of some recent favorites may be in order.  So here goes:

November 4, 2018 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (0)

Saturday, November 3, 2018

Buckeyes take the field to make forceful case for criminal justice reform through support for Issue 1

Download (23)Regular readers know I am following closely the debate over the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, now known as Issue 1.  (The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1.)  Regular readers also know that I am a sports fan who is always intrigued and excited when prominent athletes take an interest in criminal justice reform issues. 

For all those reasons, I am especially drawn to this new commentary authored by Malcolm Jenkins and Austin Mack under the headline "Vote Yes on 1: Why We Must Treat and Not Jail Addiction."  I recommend the commentary in full and here are excerpts:

Mass incarceration is the most urgent civil rights issue of our time.  America’s stubborn commitment to the failed war on drugs, tough-on-crime policies, and lengthy prison sentences has resulted in the caging of a breathtaking number of black and brown people.  These policies have not made us safer, and they have not addressed the underlying causes of crime, such as poverty, mental illness, a lack of access to health care, and relatedly, substance abuse.  Instead, these policies have ripped apart families and neighborhoods, leaving a blight on communities of color that will last for decades unless we immediately reverse course.

These ineffective policies have been on full display in Ohio, which has an incarceration rate higher than any other country in the world (other than the United States).  It has the fourth highest total prison population in the U.S. and its prisons sit at 130 percent capacity.  Ohio’s zest for incarceration is costly  —  the prison’s budget is $1.8 billion a year. While other states are starting to reduce both their crime rates and prison populations through evidence-based reforms, Ohio has largely stayed the course of mass incarceration, cramming more and more people into eight by ten cells.  The population is projected to keep growing, costing Ohioans more and more.

But this November, we have a chance to change direction and be a leader in the criminal justice reform movement.  On the ballot is State Issue 1, which will convert many crimes of addiction from felonies to misdemeanors. Instead of going to state prison, people convicted of low-level drug possession will receive treatment, supervision, or county jail. They would not be saddled with a felony conviction, which can mean a lifetime of barriers to employment, housing, and more. Instead, they would have access to critical treatment.  And Ohio would invest the money saved in people — in badly needed treatment and in services for crime victims.

This will make us safer.  Prosecutors and law enforcement can focus on more serious offenses like drug trafficking, which remains a felony. Meanwhile, people who suffer from addiction can stay out of prison and receive the treatment and services they need. In the long run, this will mean more jobs.  And more jobs means less crime.  Voting in favor of Issue 1 is, in this way, a no brainer....

Righting the harsh injustices of the failed war on drugs is long overdue.  Drug arrests and prosecutions consistently affect black communities at an alarming rate that is far greater than white communities. In 2006, for example, police arrested black Ohioans at nearly 6 times the rate of white Ohioans.  85 percent of those arrests were for use, or possession, offenses. Issue 1 can’t right our past wrongs, but it can prevent some of them from happening in the future.

As student athletes (and a proud alum) at the best university in this country and in one of the greatest states, we know Ohioans want what is fair for all communities.  Some use fear mongering to divide us, but we know Ohioans know better than that.  We can do better  —  we can lead in reform, rather than fall behind.  We can be fair and compassionate, rather than pursuing the same old policies that crowd our jails and prisons and make us less safe. O-H-I-O.  Vote yes on Issue 1 this November.

For those who do not recognize the names of these authors of this commentary, here is the "About the Co-Authors" description:

Malcolm Jenkins is the Co-Founder of the Players Coalition, a 2018 Super Bowl Champion Safety for the Philadelphia Eagles and an alum of The Ohio State University.  Players Coalition is an independent 501c3/501c4 organization led by professional athletes to impact social and racial inequality.  Visit www.players-coalition.org for more information and follow us at @playercoalition.

Austin Mack is a Wide Receiver for the football team and President of “Redefining Athletic Standards” at The Ohio State University. This Op-Ed is supported by its fellow members.

Prior related posts:

November 3, 2018 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"The Power and Prejudice of DAs on Drugs"

03c3e6a3-d023-4cc0-aef0-579709278f31The title of this post is the title of this interesting investigation by Rory Fleming published at Filter, which is a relatively new resource seeking "to advocate through journalism for rational and compassionate approaches to drug use, drug policy and human rights." I recommend the piece in full, as well as these associated "Interactive Graphics," and here is how it gets started:

Public opinion is souring on the criminalization of drug use. But what prevents this from translating into practice?

While politicians makes laws and police officers can arrest whoever they find in possession of drugs, it’s prosecutors who turn arrests into criminal charges. Prosecutors have the final say in who to charge with a crime, which charge to use, and what punishment will be sought. In short, they’re in a position to inflict great harm.

Amy Weirich, district attorney for Shelby County, Tennessee (which includes Memphis), charged women with child abuse for being dependent on drugs while pregnant. She justified this by stating that she uses the “velvet hammer” of drug court to force them into treatment.

In Tucson, Arizona, Pima County Attorney Barbara LaWall sent the ACLU a cease-and-desist letter to try to stop the organization from talking about her support of mandatory minimum prison sentences for drugs.

Commonwealth’s Attorney Raymond Morrogh of Fairfax, Virginia went to Washington, DC to accuse former US Attorney General Eric Holder of trying to reward drug prisoners with “lighter sentences because America can’t balance its budget.”

There are over 2,000 elected local head prosecutors, most commonly known as district attorneys, in the United States. And overall, these powerful individuals do not care what people think about the War on Drugs. They are going to fight it anyway, and hope that the voting public doesn’t notice.

That is the conclusion of an exclusive investigation from Filter, which surveyed the top prosecutors of the nation’s 50 most populous counties. (We included incumbents, outgoing incumbents, incoming DAs and challengers, making 61 individuals in total.) ...

After collecting public statements and reviewing cases, we emailed each prosecutor a short questionnaire about their positions on four key issues: marijuana legalization, drug-induced homicide prosecutions, mandatory minimum sentences for drugs, and the criminalization of relapse.

Around half of their offices never responded, even after a round of reminders. We telephoned 10 offices, which listed no email address for a media representative on their government websites.  One of them — that of Wake County, NC District Attorney Lorrin Freeman—hung up immediately on hearing the word “reporter.”

Many of the prosecutors surveyed have stated publicly that we must treat drug use as a “public health issue,” rather than a criminal justice one. But our findings show that the vast majority nonetheless support or implement practices that drive criminalization, inequality and large-scale human suffering.

November 3, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Friday, November 2, 2018

SCOTUS grants cert on another supervised release issue (and a Batson issue in a capital case)

The Supreme Court last week, as noted here, granted cert in United States v. Haymond, No. 17-1672, an interesting case from the Tenth Circuit in which the defendant prevailed on the claim that the procedures used to sentence him following his supervised release violation was unconstitutional.  Today, as reflected in this order, the Court granted cert on another issue related to supervised release through a grant in Mont v. United States, No. 17-8995.  The petitioner's cert petition posed this "Question Presented":

Whether a statute directed to the administration of imprisoned individuals serves as authority to alter or suspend the running of a criminal sentence of supervised release, when such “tolling” is without judicial action, and requires the term “imprisonment” as used in the administrative statute, to include pretrial detention prior to an adjudication of guilt. Is a district court required to exercise its jurisdiction in order to suspend the running of a supervised release sentence as directed under 18 U.S.C. §3583(i) prior to expiration of the term of supervised release, when a supervised releasee is in pretrial detention, or does 18 U.S.C. §3624(e) toll the running of supervised release while in pretrial detention?

Seeking (unsuccessfully) to avoid a cert grant, the government's brief in opposition to cert framed the issue of the case this way:

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

In addition to some civil grants, the Court also granted cert on a capital case, Flowers v. Mississippi, No. 17-9572, but limited the grant in this way:

The petition for a writ of certiorari is granted limited to the following question: Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U.S. 79 (1986), in this case.

November 2, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The Biased Algorithm: Evidence of Disparate Impact on Hispanics"

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

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety.  Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities.  Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics.  The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics. 

November 2, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Thursday, November 1, 2018

Tennessee completes execution using electric chair

As reported in this lengthy local article,"inmate Edmund Zagorski died at 7:26 p.m. CDT Thursday after Tennessee prison officials electrocuted him with the electric chair." Here is more:

He is the 134th person put to death by Tennessee since 1916 and the second person this year after Billy Ray Irick’s execution by lethal injection on Aug. 9.  He is the first person to die by electric chair since Daryl Horton's execution in 2007.

Zagorski was convicted in the April 1983 murders of John Dale Dotson, of Hickman County, and Jimmy Porter, of Dickson.  Prosecutors argued Zagorski lured them into the woods in Robertson County with the promise to sell them marijuana, and then he shot them, slit their throats and stole their money.

Two minutes before it was set to begin at 7 p.m., the U.S. Supreme Court denied Zagorski's appeal on the grounds of the unconstitutionality of choosing between the electric chair and lethal injection....

Eight people believed to be family members of the victims entered the prison to witness the execution.  They waited in front of a covered large window that looked into the execution chamber where on the other side of the glass Zagorski sat pinned in the electric chair, held down by buckles and straps with electrodes fastened to his feet.

The blinds opened for the rest of the witnesses to see Zagorski dressed in his cotton clothes, smiling and grimacing to the group. Zagorski pronounced his last words: "Let’s rock." He sat smiling in the wired chair as prison staff placed a wet sponge, which had been soaked in salt, and a metal helmet on his freshly shaven head.

Zagorski raised his eyebrows, appearing to be communicating with his attorney Kelley Henry. She sat while nodding and tapping her heart, looking at Zagorski. “I told him, when I put my hand over my heart, that was me holding him in my heart,” Henry told The Tennessean.   She said Zagorski smiled, to encourage her to smile back.  Then his face was covered with a black shroud.

The warden gave the signal to proceed.  Zagorski lifted his right hand several times in what looked like attempts to wave, before he clenched his hands into a fist as the first current ran 1,750 volts of electricity through his body for 20 seconds.

There was a short pause before the second jolt was administered for 15 seconds.  The doctor overseeing the death appeared in view to check on Zagorski’s vitals. Zagorski was dead. The blinds into the chamber closed....

Zagorski was set to die three weeks ago.  His request to die by electric chair saved his life — at least for a few weeks, when Gov. Bill Haslam granted reprieve three hours before his scheduled execution on Oct. 11.  The move bought the state time to prep the chair during last-minute legal wrangling.

Zagorski requested death by electric chair with hope that death would come instantaneously — the “lesser of two evils” compared to lethal injection, argued federal public defender Kelley Henry.

November 1, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

Pew reports on persons on probation or parole in US

The folks at Pew have this new posting titled in full "1 in 55 U.S. Adults Is on Probation or Parole: Better strategies can cut that rate while protecting public safety, decreasing drug misuse, and reducing incarceration." Here is how the posting gets started:

More than a decade ago, policymakers around the country seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states. Because of their high costs and visibility, prisons garnered substantial public attention on criminal justice, while relatively little was paid to the largest part of the correctional system: community supervision.

Probation and parole populations grew 239 percent from 1980 to 2016, and with that came a dramatic rise in the per capita rate of community supervision, which was 1 in 55 U.S. adults — nearly 2 percent — in 2016.  Although the community corrections population declined 11 percent since its all-time peak in 2007, it is still twice the size of the population incarcerated in state and federal prisons and local jails, combined. Notably, supervision rates vary considerably by state, from 1 in 18 in Georgia to 1 in 168 in New Hampshire, reflecting the difference in practices and policies across the nation.

This massive scale has too often prevented the community supervision system from effectively delivering on its mission to promote public safety through behavioral change and accountability.  Although about half of the roughly 2.3 million people who complete their probation and parole terms each year do so successfully, nearly a third fail for a range of reasons, and almost 350,000 of those individuals return to jail or prison, often for violating the rules rather than committing new crimes.

November 1, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

Wednesday, October 31, 2018

Latest analysis and discussion of Ohio criminal justice reform ballot initiative known as Issue 1

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.  The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1

The last pre-election DEPC public panel on Issue 1 is taking place tomorrow, November 1 at 10 am (register here), at the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University.  The all-star panelists who will be speaking are:

Kyle Strickland, Senior Legal Research Associate at the Kirwan Institute will be moderating this great panel. I know Kyle will also be bringing an informed perspective to the discussion because he is a co-author of this great new report titled "Race & Criminal Justice: Ohio Issue 1 and Beyond."  Here is part of the conclusion of that report: 

Many communities are rightfully asking the question of why is the opiate epidemic the catalyst for modern criminal justice reform?  At the core of this question is the notion that broad-sweeping reform efforts are much more politically feasible when the issue also impacts communities with privileged identities — whether that be race, economic status, or party affiliation.  In the future, we should not wait for collective tipping points to address systemic inequities because policies that disproportionately harm marginalized communities harm us all.

Now that reform efforts are in motion, it is critical that a racial lens be applied to policies moving forward.  A reduction in racial disparities in the criminal justice system should not be an assumed outcome of reform.  Disparate outcomes will likely re-emerge in the health care system, community based corrections, and all other institutions without intentional effort paid to undoing our legacy of racism and discrimination.  A more equitable system will require explicit interventions to address systemic discrimination and interpersonal biases at every level.

Regardless of the outcome in November, communities must demand that those implementing Issue 1 or other criminal justice reform efforts be held accountable to reducing racial disparities and repairing the intergenerational harm caused by mass incarceration and decades of disinvestment.

Prior related posts:

October 31, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"The defendant faces a maximum possible penalty of death, or life without parole, followed by a consecutive sentence of 535 years’ imprisonment."

The title of this post is a sentence near the end of this Department of Justice press release fully titled "Pennsylvania Man Charged with Federal Hate Crimes for Tree Of Life Synagogue Shooting: Robert Bowers Indicted on 44 Counts Including Hate Crimes Resulting in Deaths." Here is how the release gets started:

A federal grand jury sitting in the U.S. District Court for the Western District of Pennsylvania charged a Pennsylvania man with federal hate crimes, including the murder of 11 people, for his actions during the Oct. 27, 2018 shootings at the Tree of Life Synagogue in Pittsburgh’s Squirrel Hill neighborhood. United States Attorney General Jeff Sessions, Acting Assistant Attorney General John Gore for the Civil Rights Division, U.S. Attorney for the Western District of Pennsylvania Scott W. Brady, and FBI-Pittsburgh Special Agent in Charge Robert Jones made the announcement.

Robert Bowers, 46, of Baldwin, Pa., was charged in a 44-count indictment returned today.

According to the indictment, on Oct. 27, 2018, Bowers drove to the Tree of Life Synagogue in Pittsburgh, Pennsylvania, where members of the Tree of Life, Dor Hadash, and New Light Jewish congregations gathered to engage in religious worship. Bowers entered the building armed with multiple firearms, including Glock .357 handguns a Colt AR-15 rifle. The indictment alleges that while inside the Tree of Life Synagogue, Bowers opened fire, killing and injuring members of the three congregations, as well as injuring multiple responding public safety officers. While inside the Tree of Life Synagogue, Bowers made statements indicating his desire to “kill Jews.”

Specifically, the indictment charges:

  • Eleven counts of obstruction of free exercise of religious beliefs resulting in death;
  • Eleven counts of use and discharge of a firearm to commit murder during and in relation to a crime of violence;
  • Two counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon and resulting in bodily injury;
  • Eleven counts of use and discharge of a firearm during and in relation to a crime of violence;
  • Eight counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon, and resulting in bodily injury to a public safety officer; and
  • One count of obstruction of free exercise of religious beliefs involving use of a dangerous weapon and resulting in bodily injury to a public safety officer.

Prior related post:

October 31, 2018 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)

Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation"

6a00d83451574769e2022ad3762ba2200c-320wiIn this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic (FCJC), sent me an extraordinary update on 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 post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided it into three posts to cover all she has to report.  The first post covered "Sentencing Victories," the second covered "Legal Victories" and this final one set out "A Path for Future Litigation":

A Path for Future Litigation

The new legal standards forged by these three courts of appeals [discussed in this prior post] make it markedly easier for criminal defendants to obtain discovery in support of racially selective law enforcement claims, which in turn makes it possible for defendants to win motions to dismiss on the merits.

The lower discovery standard also supports a lower merits standard for motions to dismiss for racially selective law enforcement than the standard set in Armstrong.  Under Armstrong, a defendant must provide “clear evidence” of discriminatory effect and discriminatory intent to prevail on a selective prosecution claim on the merits.  Armstrong, 517 U.S. at 465.  As Sellers notes, the Supreme Court explicitly rested that merits standard on “the presumption that prosecutors ‘properly discharged their official duties.’” Sellers, 2018 WL 4956959 at *6 (quoting Armstrong, 517 U.S. at 464).  Courts have made clear that such a presumption simply does not apply in the selective law enforcement context.  See, e.g., Davis, 793 F.3d at 721; Washington, 869 F.3d at 220–21; Sellers, 2018 WL 4956959 at *6.  Accordingly, there is no basis for applying the “clear evidence” standard to a motion to dismiss for selective law enforcement.  Instead, courts should apply the ordinary preponderance of the evidence standard.

In our Motions to Dismiss, the FCJC asked the district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.  See, e.g., Defendants’ Amended Reply in Support of Motion to Dismiss for Racially Selective Law Enforcement at 2­–4, United States v. Brown, 12-CR-632 (N.D. Ill. Nov. 6, 2017) (Dkt. No. 630).  Although the only judge to issue a merits ruling rejected our proposed lower standard, see Brown, 299 F. Supp. 3d at 995–97, Sellers supports the FCJC’s position that the standard for obtaining dismissal based on a selective enforcement claim must be less onerous than the merits standard for a selective prosecution claim.

Lawyers in other jurisdictions can use the litigation and precedents discussed above and in Parts 1 and 2 of this guest post series to fight race discrimination by law enforcement in their own cases.  Here are a few ideas:

  • Hire experts and gather data about racial disparities created by law enforcement in fake stash house robbery cases, gun cases, and others.
  • Litigate motions to obtain discovery regarding selective law enforcement in stash house cases and others, and ask district court judges to apply the lower evidentiary standard set by the Seventh, Third, and Ninth Circuits.
    • Appeal denials of selective enforcement discovery motions and advocate for other courts of appeals to adopt the lower discovery standard.
  • Litigate motions to dismiss for selective law enforcement in stash house cases and others, and ask district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.
    • Appeal denials of such motions to dismiss and advocate for other courts of appeals to adopt a preponderance of the evidence standard on the merits.
  • Use the plea agreements in the Chicago cases to advocate to U.S. Attorney’s Offices to dismiss mandatory minimum charges in fake stash house robbery cases.
  • Use the example of the Chicago U.S. Attorney’s Office to convince other USAOs to cease bringing fake stash house robbery cases altogether.
  • Use the time served sentences imposed in the Chicago cases to advocate for lower sentences in stash house cases elsewhere. Sentencing memoranda prepared by the Federal Criminal Justice Clinic in several of the Chicago cases can be found at these links:

Prior related posts:

October 31, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable federal sentencing argument that "nature and circumstances of the offense" includes "rhetorical China shop bull who is now our president"

C487660a9f953e1a74a1e5c649ef3640--gloveA helpful reader made sure I did not miss this HuffPost piece concerning a notable federal sentencing filing in a high-profile federal case.  The full headline of the piece sets forth the basics: "Trump Fan Convicted In Anti-Muslim Terror Plot Asks Judge To Consider Trump’s Rhetoric: Patrick Stein’s attorneys also said he learned about the Quran 'from the internet and conservative talk-show hosts such as Sean Hannity and Michael Savage'."  Here are more details from this article (which also include a link to the full filing):

Attorneys for a President Donald Trump supporter who was convicted in a domestic terrorism plot aimed at slaughtering Muslim refugees asked a federal judge to factor in the “backdrop” of Trump’s campaign rhetoric when deciding their client’s sentence.

Patrick Stein was one of three right-wing militiamen found guilty in April of a conspiracy to kill Muslim refugees living in rural Kansas. Ahead of the 2016 election, Stein and two others plotted with an FBI informant and an undercover agent to bomb an apartment complex that housed Muslims in Garden City. Stein went by the handle “Orkin Man” and referred to Muslims as “cockroaches” he wanted exterminated.

His sentence was expected to be announced Friday but has been delayed until Nov. 19.

At trial, defense attorneys referred to the defendants as “knuckleheads” who were engaged in “locker room talk,” and Stein’s attorney argued his client was a victim of a “chaos news” environment that had him thinking a civil war was coming. A jury convicted Stein and his co-defendants, Curtis Allen and Gavin Wright, on weapons of mass destruction and conspiracy against civil rights charges.... The government said it is seeking life sentences for all three defendants.

Stein’s attorneys, James Pratt and Michael Shultz, argued Monday in a sentencing memo that sending Stein to prison for life was unwarranted and that a sentence of 15 years would be appropriate. They said the judge should factor in the “backdrop to this case” when crafting an appropriate sentence.

“2016 was ‘lit.’ The court cannot ignore the circumstances of one of the most rhetorically mold-breaking, violent, awful, hateful and contentious presidential elections in modern history, driven in large measure by the rhetorical China shop bull who is now our president,” they wrote.

“Trump’s brand of rough-and-tumble verbal pummeling heightened the rhetorical stakes for people of all political persuasions,” they added. “A personal normally at a 3 on a scale of political talk might have found themselves at a 7 during the election. A person, like Patrick, who would often be at a 7 during a normal day, might ‘go to 11.’ See SPINAL TAP.  That climate should be taken into account when evaluating the rhetoric that formed the basis of the government’s case.”

Stein’s attorneys, who called their client an “early and avid” Trump supporter, said it was important to keep in mind that “almost no one thought Trump was going to win” when evaluating the likelihood of an attack. The plot was supposed to take place after the election, as the group didn’t want their attack to boost Hillary Clinton’s presidential campaign. Stein, in a message to an undercover agent, wrote that if they attacked ahead of the election it would “give a lot of ammunition to the Hillary supporters” and said that Clinton could never be allowed to be president.

“Trump’s win changed everything, and it is reasonable to speculate that it would have changed things among the defendants as well,” the attorneys wrote. “The urgency for action would be gone. The feeling of a losing battle would be gone. The conspiracies, in part, would be disproven as the transition from Obama to Trump took place. It is logical to conclude that the discussed attack would never have happened in the world that existed post-Trump.”

Stein’s attorneys said their client got caught up in the anti-Muslim information he was devouring online. His knowledge of the Quran, his attorneys wrote, “came directly from the internet and conservative talk-show hosts such as Sean Hannity and Michael Savage. Patrick himself had never read the Quran, nor had he participated in a comparative study of any religion.”

Stein, his attorneys wrote, was “the perfect, vulnerable target” for the FBI, and had relapsed into alcoholism and “had used methamphetamine regularly,” including after he met FBI informant Dan Day. They said that Stein’s crimes “demonstrated an extreme level of hatred and fear, but they also demonstrated an utter lack of sophistication.”

Any sentencing document that effectively cites Spinal Tap garners my appreciation, and it obviously deserves to be honored for being willing to take its arguments "one louder."

October 31, 2018 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

I am a big fan of clemency and democracy, but....

I am still not sure I can get behind the proposal discussed in this article under the headline "Vermont Candidate Promises Weekly 'Governor's Pardon TV Show'."  Here are the details:

A Vermont gubernatorial candidate has proposed a nationally televised show in which a booing or cheering crowd would decide the fate of state prisoners.

Independent candidate Cris Ericson, a marijuana advocate who regularly runs for statewide office, outlined her vision in a commentary for Vermont PBS.  “If you elect me, I will host a governor’s pardon TV show every Saturday night and pardon a few of the people who violate the new, unconstitutional anti-gun laws, and some of the nonviolent offenders of other laws, to save Vermonters money,” Ericson said in the commentary.  She was referring, presumably, to new restrictions on gun ownership signed into law in April by her Republican opponent, Gov. Phil Scott.

Ericson said the show would be hosted from the auditorium in Montpelier's Pavilion State Office Building, a few floors below the governor’s office.  “We will have a full audience in the auditorium … and invite 100 Vermonters each week to boo or cheer,” she said. “We will invite family and friends of the prisoners to speak on their behalf.  Then the audience will vote on whether I should grant a pardon as governor with the legal authority to grant pardons.”

Ericson said the state could even generate revenue from the idea, by selling the show and investing the profits in the General Fund.

Though she doesn’t reference the film, the scene Ericson describes bears a striking resemblance to the fictional depiction of America’s justice system in the movie Idiocracy....

A recent poll by Vermont Public Radio and Vermont PBS showed that Ericson had support from about 1 percent of Vermont voters.

October 31, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 30, 2018

US Sentencing Commission releases FY 2018 third quarter (repackaged) sentencing data

US Sentencing Commission has now released here its "3rd Quarter ... Preliminary Fiscal Year 2018 Data."  As previously noted in this post when the USSC released data on offenders sentenced during the first half of fiscal year 2018, the Commission has altered how it accounts and reports sentencing data.  This new data run explains "the Commission is again updating the way it presents quarterly data. In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way. Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances."  As I see it, this means within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances are broken out distinctly.

As I have said before, nothwithstanding this repackaging aside, we can still look at the "within-guideline" number on Tables 8 and 8A for direct comparisons on this front between the first three quarters of of FY 2018 and all federal sentencing data from the last full year of the Obama Administration (in this FY 2016 data report).  Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50.5% in the first three-quarters of FY 2018.  Without a more intricate and sophisticated analysis controlling for caseloads and other factors, this upward movement in within-guideline sentences does not alone provide conclusive evidence that "Trump era" changes in prosecutorial policies and practices is having a direct impact on federal sentencing outcomes.  But these new data continue to be suggestive of trends to watch as more cases more through the pipeline and as new federal prosecutors and judges are impacted by new commands and advocacy from Main Justice.

Prior related post:

October 30, 2018 in Booker in district courts, Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents"

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

Children of incarcerated parents, the invisible victims of mass incarceration, suffer tremendous physical, psychological, educational, and financial burdens — detrimental consequences that can continue even long after a parent has been released.  Although these children are blameless, policy makers, judges, and prison officials in charge of visitation policies have largely overlooked them.  The United States Sentencing Commission Guidelines Manual explicitly instructs judges to ignore children when fashioning their parents’ sentences, and judges have largely hewed to this policy, even in the wake of the 2005 United States v. Booker decision that made those Guidelines merely advisory, not mandatory.

Although some scholars have suggested amending the Guidelines or making other legislative changes that would bring children’s interests forward at the sentencing phase, these suggestions are less likely than ever to bear fruit.  In light of the Trump Administration’s “tough on crime” rhetoric, new Attorney General Jefferson Sessions’ “law and order” reputation, and Republican control of the House and Senate, policy change that is viewed as “progres- sive” is highly unlikely.  Therefore, this Article proposes two other avenues for change. 

First, in a new and unique proposal, this Article suggests federal judges can and should independently order the inclusion of Family Impact Statements into a defendant’s presentence investigation report via a heretofore largely unused “catchall provision” of the Federal Rules of Criminal Procedure.  Second, this Article makes three modest policy recommendations that are aimed at improving the ability of children to visit their incarcerated parents.  Visitation has been shown in studies to be a powerful tool of mitigation for many of the harms children experience when their parents are incarcerated, but visitation rates are woefully low.  The options for improving circumstances for children of incarcerated parents may well be limited, but there are viable options, and there is no time to waste.

October 30, 2018 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Terrific review of all the criminal justice reforms stories in the 2018 midterm election

Images (17)It is now just a week until Election Day 2018, and everyone should feel a significant responsibility to vote and to encourage everyone they know to vote. (I have long thought we ought to have many more elections and much more voting in the US, but that it a topic for a different post.)  Over at Vox, German Lopez has this great extended review of all the notable and different initiatives and candidates on the ballot that could have an impact on local, state and national criminal justice systems.  The extended piece is fully headlined "How 2018 voters could change America’s criminal justice system: From marijuana to crime victims’ rights to prosecutors, the 2018 elections will be big for criminal justice."  Here is how the piece gets started and some of its headings that follow:

From ballot initiatives to local elections to the state and federal races, the 2018 midterm elections will give voters an opportunity to define the system charged with arresting, prosecuting, and incarcerating people in America.

These races usually do not get the attention they deserve, especially state and local elections and particularly races for prosecutors. But they are tremendously important: Despite all the attention that goes to the federal system, the great majority of criminal justice work is done at the local and state level, where America’s police departments operate and most of the people in prison are locked up.

A criminal justice reform movement, galvanized by Black Lives Matter, civil rights issues, and prison spending’s strain on government budgets, has already led to some changes in recent years, from reforming prisons and police to reducing criminal penalties for certain crimes. The 2018 midterms offer an opportunity to continue the momentum behind criminal justice reform.

Here are some of the most pressing criminal justice issues on the ballot this November, covering debates over the war on drugs, mass incarceration, policing, crime victims’ rights, and more.

Criminal justice issues on the ballot in six states...

Marijuana legalization in Michigan and North Dakota, and medical pot in Utah and Missouri....

Marsy’s Law, a crime victims’ bill of rights, is on the ballot in six states...

Prosecutor elections: maybe the most important contests in criminal justice...

Prosecutors are driving mass incarceration...

Other local and state races will be a big deal too

This Vox piece has lots and lots of links to all the initiatives and other races and related points in the piece.  Read the whole thing and click through (and share views in the comments on what you consider the most important or consequential matters or people on the ballot).  And for another (more visual) view on all these matters, the folks at The Appeal political report have these terrific maps on these election matters: 

On the ballot in November 2018

Where Criminal Justice & Law Enforcement Measures are on the 2018 Ballot

Where Voting Rights are on the 2018 Ballot

October 30, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

South Dakota completes execution of prison guard murderer who relinquished appeals

This NBC News piece, headlined "Inmate makes joke in last words before execution for killing South Dakota prison guard," reports on the 19th execution in the US in 2018.  Here are some of the details:

A South Dakota inmate who killed a correctional officer seven years ago during a failed prison escape on the guard's 63rd birthday was put to death Monday evening, marking the state's first execution since 2012.

Rodney Berget, 56, received a lethal injection of an undisclosed drug for the 2011 slaying of Ronald "R.J." Johnson, who was beaten with a pipe and had his head covered in plastic wrap at the South Dakota State Penitentiary in Sioux Falls.  Berget's execution was the state's fourth since it reinstituted the death penalty in 1979.

It originally was to be carried out at 1:30 p.m. CDT (2:30 p.m. ET), but was delayed for hours while the U.S. Supreme Court weighed a last-minute legal bid to block it.  Berget joked in his last words about the wait, saying, "Sorry for the delay, I got caught in traffic."...

Johnson's widow, Lynette Johnson, who witnessed the execution, said her husband experienced "cruel and unusual punishment" but Berget's lethal injection was "peaceful" and "sterile."

"What's embedded in my mind is the crime scene.  Ron laid in a pool of blood. His blood was all over that crime scene," she said.  "That's cruel and unusual punishment."...

Berget was serving a life sentence for attempted murder and kidnapping when he and another inmate, Eric Robert, attacked Johnson on April 12, 2011, in a part of the penitentiary known as Pheasantland Industries, where inmates work on upholstery, signs, furniture and other projects.  After Johnson was beaten, Robert put on Johnson's pants, hat and jacket and pushed a cart loaded with two boxes, one with Berget inside, toward the exits.  They made it outside one gate but were stopped by another guard before they could complete their escape through a second gate. Berget admitted to his role in the slaying.

Robert was executed on Oct. 15, 2012. The state also put an inmate to death on Oct. 30, 2012, but that was the last one before Berget's....

Berget's mental status and death penalty eligibility played a role in court delays. Berget in 2016 appealed his death sentence, but later asked to withdraw the appeal against his lawyers' advice.  Berget wrote to a judge saying he thought the death penalty would be overturned and that he couldn't imagine spending "another 30 years in a cage doing a life sentence."

The Department of Corrections planned to use a single drug to execute Berget. Policy calls for either sodium thiopental or pentobarbital. Pentobarbital was used in the state's last two executions.  South Dakota has not had issues with obtaining the drugs it needs, as some other states have, perhaps because the state shrouds some details in secrecy. Lawmakers in 2013 approved hiding the identities of its suppliers.

Berget was the second member of his family to be executed. His older brother, Roger, was executed in Oklahoma in 2000 for killing a man to steal his car.

October 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

Plea waivers and ineffectiveness of counsel for failing to appeal come to SCOTUS in Garza v. Idaho

The Supreme Court will hear argument today in Garza v. Idaho, which presents this criminal procedure question about the application of ineffective assistance of counsel: "Whether the 'presumption of prejudice' recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver."  Over at SCOTUSblog, Even Lee has this extended preview under the heading "Can a criminal defense lawyer refuse to file an appeal from a guilty plea because of an appeal waiver?" and here is how it starts and a bit of its noting of some broader implications:

The last few decades have seen a sharp rise in the number of plea bargains.  The Supreme Court itself has estimated that 97 percent of federal prosecutions and 94 percent of state prosecutions end in plea bargains.  This increase in negotiated guilty pleas has accelerated a seeming anomaly — appeals from guilty pleas.  In turn, prosecutors now commonly insist on the inclusion of appeal waivers in plea agreements.

This chain of developments, roughly speaking, has led the U.S. Supreme Court to Garza v. Idaho, which it will hear on October 30.  When a defendant’s trial lawyer fails to file an appeal as the client has instructed on the ground that the plea agreement included an appeal waiver, must the defendant demonstrate “prejudice” in order to make out a claim of ineffective assistance of counsel?  Since the Supreme Court’s 2000 decision in Roe v. Flores-Ortega, prejudice has been presumed when a lawyer has failed to file an appeal as directed by the client.  But Flores-Ortega, now almost two decades old, did not involve an appeal waiver.  Garza gives the court an opportunity to address this situation....

The big policy question that underlies this case is to what degree the courts will enforce appeal waivers. A pronouncement in favor of the broad, if not absolute, enforceability of such waivers would promote the smooth functioning of plea bargaining as the principal method of keeping criminal caseloads under control. On the other hand, every Supreme Court decision allowing a defendant to appeal despite an apparent waiver throws an element of doubt into the plea bargaining “market,” as it were. Prosecutors aren’t sure exactly what they are getting in exchange for lighter sentences.

Not everybody wants the plea-bargaining market to function smoothly, though.  In its amicus brief, the libertarian Cato Institute warns that the mushrooming institution of plea bargaining threatens defendants’ effective rights to trial under the Sixth Amendment.  It argues that allowing attorneys to ignore client instructions to appeal undermines client autonomy as enshrined in the criminal procedure portions of the Bill of Rights.

October 30, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

FAMM laments problems in federal prisons while urging Prez Trump to new head for Bureau of Prisons

As detailed in this press release, FAMM President Kevin Ring has now sent this letter to President Trump urging him to appoint a director of for the US Bureau of Prisons ASAP.  Here is how this latter gets started:

I write today to urge you to appoint a reform-minded individual to serve as Director of the U.S. Bureau of Prisons (BOP) as soon as possible. The BOP has been without a permanent director since General Mark Inch’s resignation from the post in May of this year. The void in consistent leadership has caused and exacerbated numerous problems throughout the federal prison system, for both staff and those in custody.

FAMM is in contact with over 35,000 federal prisoners and their family members on a regular basis.  Through our correspondence, we have learned of continual problems plaguing the BOP’s programs and operations.  We hear frequently from prisoners and their families about the lack of adequate medical care or medical attention when requested. We continue to hear about lastminute reductions in halfway house time and continued underutilization of home confinement for low-risk individuals.  We have seen the BOP routinely neglect its role in identifying eligible candidates for the federal compassionate release program, which would allow the courts to consider resentencing terminally ill or elderly prisoners.  We have also learned of several BOP facilities instituting questionable and problematic policies regarding family visits and limiting prisoner access to mail from their loved ones as well as access to books.  Because education and strong family ties are proven to help in the rehabilitation of prisoners, these policies pose a significant threat to successful rehabilitation and should be reversed under new leadership.

October 30, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, October 29, 2018

"Who Locked Us Up? Examining the Social Meaning of Black Punitiveness"

The title of this post is the title of this new quasi-book review authored by Darren Lenard Hutchinson now on SSRN.  Here is its abstract:

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public.  Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being.  The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow.

In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many blacks supported aggressive anticrime policies that gave rise to mass incarceration.  On the surface, this observation potentially complicates arguments that conceive of U.S. criminal law and enforcement as manifestations of white supremacist political power.  Forman’s failure to provide a comprehensive analysis of the racist dimensions of punitive sentiment makes his research subject to such an interpretation.  A deeper analysis, however, reconciles Forman’s research with antiracist accounts of U.S. crime policy. 

In particular, social psychology literature on implicit bias, social dominance orientation, and right-wing authoritarianism provides a helpful context for situating black punitive sentiment within antisubordination criminal law theory.  These psychological concepts could link punitiveness among blacks with outgroup favoritism and in-group stigma that derive from structural inequality and antiblack social stigma.  The social psychology of punitive sentiment, resilience of white supremacy, and conservative political ideology will likely present substantial barriers to the merciful approach to criminality that Forman proposes.

October 29, 2018 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Second Circuit, on third pass of child porn sentence, affirms 25-year prison term it calls "barbaric without being all that unusual"

Back in June I noted here a Second Circuit panel opinion in US v. Sawyer, No. 15-2276, in which a split Second Circuit reversed a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography because the district court, even at a second sentencing, insufficiently addressed statutory sentencing factors and failed "to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  The third time around, the district judge gave a different rationale for imposing a 25-year sentence, and this new split Second Circuit opinion now affirms in an opinion by Judge Jacobs that starts and ends this way:

Jesse Sawyer, having pled guilty to sexual exploitation of children and receipt of child pornography, was originally sentenced primarily to 30 years in prison and a lifetime of supervised release. We ruled that that sentence was shockingly high given Sawyer’s harrowing upbringing and comparatively low danger to the community, and remanded to the district court for resentencing. The district court disagreed with our analysis but found that Sawyer’s exemplary record as an inmate justified a reduction to 25 years. Sawyer returned the matter to our docket, challenging his new sentence on both reasonableness and law‐of‐ the‐case grounds. By order of July 30, 2018, we affirmed Sawyer’s new sentence. We now explain that we did so because the district court effectively complied with our instruction to significantly reduce Sawyer’s sentence and because that sentence is now within the realm of reasonableness....

On this second appeal, Sawyer continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses.... The sentence is barbaric without being all that unusual.

The dissent by Judge Crawford includes these paragraphs at its start:

On resentencing, the district court declined to give any additional weight to either of the factors we identified. The majority accurately describes the district court’s rejection of the appeals court ruling. I intend no criticism of the trial judge.  She was candid about the reasons for her decision and recommended that the case be referred to another judge if we were to conclude that she erred in rejecting our first ruling.  That was an appropriate course of action, and we can ask no more of a judge who cannot in good conscience follow an appellate ruling.

What we cannot do — and where I part company with the majority — is to fail to enforce our original ruling.  Had the district court resentenced the defendant to the same 30‐year sentence, I have no doubt that the other panel members would have joined me in reversing and referring the case to another district judge for a second resentencing. It is not necessary to agree with an appellate ruling, but under any system of the rule of law it is necessary to follow it.

On resentencing in this case, the district court merely changed the subject.  After rejecting our decision, the court found another, previously unavailable reason to impose a reduced sentence. In the district court’s view, the defendant’s two years of model conduct within the prison system after his original sentencing justified a five‐year reduction of sentence.  This new factor led the court to impose a 25‐year sentence in place of the original 30 years.

The majority is prepared to accept the new sentence as reasonable in length and, in effect, call it a day.  I am not. The new sentence still fails to take into proper consideration the two § 3553(a) factors we singled out as the basis for reversal.  That the defendant has since demonstrated other reasons for a reduced sentence is an entirely separate development that fails to justify the district court’s refusal to follow the original mandate.  At this time, we still do not know how a district court which followed the mandate — by giving significant downward weight to the two § 3553(a) factors we identified — would sentence this defendant.  What all three members of this panel unanimously identified as significant substantive errors in the original sentencing decision remain uncorrected.  These errors continue to form the primary basis for the new sentence.

October 29, 2018 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Is it a given that the end of Jeff Sessions' time as Attorney General is drawing nigh?

The question in the title of this post is prompted by this new AP piece headlined "Some Sessions Allies Hope White House Allows Graceful Exit."  Here are excerpts:

Sensing that Jeff Sessions’ days at the Justice Department may be numbered, some of his supporters want the White House to allow for a graceful exit for an attorney general they believe has dutifully carried out the administration’s agenda even while enduring the president’s fury.

It seems unlikely that efforts to soften a possible dismissal after the Nov. 6 midterm election would find sympathy in the White House, where President Donald Trump’s rage remains unabated over the attorney general’s recusal from the Russia investigation. A hand-picked successor could theoretically oversee the rest of the probe in place of Deputy Attorney General Rod Rosenstein.

But some supporters say they hope that if and when Sessions is replaced, his record as senator and attorney general will be recognized and not overwhelmed by Trump’s attacks, or that the administration will at least respect the Justice Department by guaranteeing a smooth transition.

A scenario advocated by at least one Sessions ally, former Cincinnati Mayor Ken Blackwell, would allow him to remain on the job until January and be permitted to resign on his own then rather than be fired immediately after the midterms. Blackwell said allies have made their case to administration officials that Sessions has successfully pushed the president’s core priorities, including on illegal immigration, and deserves some sort of recognition from the White House that “he has more than a passing grade.”

“It is not unknown, from anyone from John Kelly to Jared Kushner, that there is a base of support,” said Blackwell, referring to Trump’s chief of staff and son-in-law. “A portion of that base is ready to continue advocacy for his service.”

Newt Gingrich, a former Republican House speaker who is close to the White House and calls himself a longtime “admirer” of Sessions, said he would be open to serving as an intermediary if asked between the White House and Sessions supporters. “He deserves a graceful exit. His career deserves a strong conclusion,” said Gingrich, who called Sessions “a strong conservative who has done strong work at the Department of Justice.”...

The president, though mindful that Sessions remains popular among much of his base, would seem unlikely to sign off on a plan to extend Sessions’ time in office, according to a White House official and an outside adviser familiar with Trump’s thinking but not authorized to publicly discuss private conversations. Trump has repeatedly had to be talked out of firing Sessions before November and has signaled to allies that he wants to make sweeping changes at the Justice Department once the midterms have concluded.

He told The Associated Press this month that he was “not thrilled” with Sessions but made no commitment to dismiss him. If Trump were to wait, it would not be out of deference to Sessions, but rather because the White House would be managing the fallout from the midterms and preparing for a pair of presidential overseas trips in November, according to the official....

Smith said one way Trump could enable a respectful exit would be for the White House to craft a smooth succession plan and allow Sessions to be part of the process.

Ed Meese, a Reagan administration attorney general and Sessions friend, said he wasn’t thinking about Sessions’ departure because “I don’t want to see him fired at all.”

Because AG Sessions seems to be a significant barrier to significant federal criminal justice reforms, I am hopeful his days at the Department of Justice are numbered. But I do not expect him to seek a graceful exits because I do not think he wants to exit.  But especially with talk of a prison and sentencing reform bill being possibly hashed out and passed during the lame-duck Congress of the coming months, I am especially hopeful (but not optimistic) that it is only a matter of weeks before AG Sessions out of his current job.

A few prior related posts:

October 29, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Justice Sotomayor issues another lengthy statement in another capital case in which cert is denied

Justice Sotomayor is starting to make a regular habit of adding some interest to otherwise ho-hum order lists with lots and lots of certiorari denials. Today's SCOTUS order list, for example, gets some intrigue from her statement "respecting the denial of certiorari" in Townes v. Alabama, No. 17–7894. Her five-page statement starts and ends this way:

Today the Court denies review of Tawuan Townes’ capital murder conviction, the constitutionality of which hinges on whether the trial court instructed jurors that they “may” infer his intent to kill a victim or that they “must” do so. The former instruction is constitutional; the latter is not.  There is no way to know for sure which instruction the trial court gave. Two court reporters certified two conflicting transcripts, and the trial court no longer has the original recording.  Because Townes has not shown that the procedures below amount to constitutional error, I must vote to deny his petition for certiorari.  I write separately because the trial court’s failure to preserve the original recording gives cause for deep concern....

The Constitution guarantees certain procedural protections when the government seeks to prove that a person should pay irreparably for a crime.  A reliable, credible record is essential to ensure that a reviewing court — not to mention the defendant and the public at large — can say with confidence whether those fundamental rights have been respected. Parker v. Dugger, 498 U. S. 308, 321 (1991) (“It cannot be gainsaid that meaningful appellate review requires that the appellate court consider the defendant’s actual record”).  By fostering uncertainty about the result here, the trial court’s actions in this case erode that confidence.  That gives me — and should give us all — great pause. 

October 29, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 28, 2018

"Mass incarceration isn’t always the issue. Uneven incarceration is."

Title of this post is headline of this recent Washington Post commentary by Charles Lane.  Here are excerpts (with a little cursory commentary to follow):

“Mass incarceration” update: It peaked during the years 2007-2008 and has been quietly but consistently falling ever since. The U.S. prison and jail population that equaled 760 out of every 100,000 people in each of those two years had declined by the end of 2016 to 670 per 100,000, according to the Justice Department.

Does that 11.8 percent drop represent meaningful progress? Well, compared with what? If the standard is the low-violent-crime, low-incarceration norm enjoyed by the United States’ peer nations in Western Europe and Japan, the progress here looks modest at best.  Germany, for example, had an incarceration rate of 76 per 100,000 in 2016, and a murder rate of 1.18 per 100,000, according to the United Nations. 

Yet the United States is clearly headed in the right direction: We have managed to halt and reverse ever-growing incarceration rates, including, crucially, for black men, whose numbers in prison have fallen by about 98,000 since 2009, according to the Pew Research Center. The overall incarceration rate is now at a 20-year low, Pew reports.

Meanwhile, violent crime, despite a troubling uptick in 2015 and 2016, has not reverted to the out-of-control rates of the late 1980s and early 1990s.  According to FBI data released last month, the 2017 U.S. murder rate was 5.4 per 100,000, roughly quintuple Germany’s, but still about half what it was in 1991.

In one significant respect, however, the problem in the United States may be underincarceration.  As a Post team reported in June, murder goes all but unpunished in large areas of numerous U.S. cities, with impunity concentrated in heavily minority areas where police-community relations are at their worst and gang intimidation at its strongest. In Baltimore and Chicago, The Post report noted, police “solve so few homicides that vast areas stretching for miles experience hundreds of homicides with virtually no arrests.”

And because no one seriously questions that murderers and other violent offenders should be imprisoned (indeed, 54 percent of the state prison population is serving time for violent offenses, not drug offenses or other nonviolent crimes), these data imply that, for some U.S. jurisdictions, mass incarceration is not the issue, but rather something possibly more corrosive: uneven incarceration. Minority communities experience a criminal-justice system that simultaneously over- and under-enforces the law....

Despite recent decreases, the United States still incarcerates more people, in absolute numbers and as a share of our population, than any other nation on Earth. This statistic is nothing to be proud of.

Considered in proper context, though, it reflects not only historic social and racial inequalities, and punitive attitudes, but also the fact that the United States is the only large nation on Earth with both a functioning criminal-justice system and a fairly high level of violent crime.

The goal of criminal justice should not be any particular level of incarceration, high or low, but rather fair, consistent and effective enforcement focused on the most repugnant and most socially destabilizing crimes.  We’re not there yet, but compared with the recent past, we are doing better.

I commend this commentary for noting that "we are doing better" on crime and punishment in the US, while also noting that we also still have way too much violent crime and way too much prison punishment in our nation.  These realities should call for, especially after the last few days of hate-fueled crimes, some real soul-searching about what makes America less than great on these metrics.  I certainly have some thoughts on some factors that I think fuel these realities (e.g., disparities, drugs, guns, leadership), but what I think is most important is that any and everyone concerned about either crime or punishment give real thought to the progress we are making and how far we still have to go even when merely compared to any comparable nation.  

October 28, 2018 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

6a00d83451574769e201b7c9134b4d970b-320wiIn this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, sent me an extraordinary update on 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 post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided into three posts all she has to report.  The first post covered "Sentencing Victories," and this one covers "Legal Victories":

Legal Victories

The FCJC’s stash house litigation has also changed the law in a way that makes racially selective enforcement challenges easier to litigate going forward, which in turn will result in better outcomes and lower sentences for clients around the country.  Last week, the Ninth Circuit built on the framework created in a stash house case litigated by the FCJC and became the third federal court of appeals to institute a lower standard for defendants seeking discovery regarding racially selective law enforcement.

In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC on appeal, the en banc Seventh Circuit became the first court of appeals in the country to relax the legal standard for defendants seeking discovery to support a race discrimination claim against law enforcement officers.  Davis eroded the onerous standard for obtaining discovery regarding racially discriminatory practices set by the Supreme Court in United States v. Armstrong, 527 U.S. 456 (1996).  Davis went to great lengths to distinguish racially selective law enforcement claims from the racially selective prosecution claim in Armstrong, holding, “[T]he sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations.” Davis, 793 F.3d at 721.  Davis represented a sea change in the law — for the previous 20 years, courts had routinely denied the claims of defendants seeking discovery in support of selective prosecution and selective law enforcement claims alike.

Last year, the Third Circuit joined the Seventh Circuit in drawing a distinction between the two types of claims.  See United States v. Washington, 869 F.3d 193, 216 (3d Cir. 2017). But the Third Circuit took this distinction even further, definitively eliminating two requirements that had made it virtually impossible for defendants to obtain discovery in the twenty years since Armstrong.  Specifically, Washington jettisoned both (1) the requirement under the discriminatory effect prong that defendants provide some evidence that “similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement,” and (2) the requirement that defendants “provide ‘some evidence’ of discriminatory intent. Id. at 221.  The Third Circuit’s elimination of these onerous standards represented an enormous development in the law of discovery for selective enforcement cases.

In United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), the Ninth Circuit built on the framework created in Davis and extended in Washington.  Interestingly, the Ninth Circuit joined the Third Circuit’s holdings without emphasizing or even mentioning that those holdings had dramatically lowered the legal standard.  First, the Ninth Circuit joined the Third in eliminating the biggest barrier to proving the first prong — discriminatory effect — by holding that a defendant could obtain discovery in support of a selective enforcement claim without providing “evidence that similarly-situated individuals of a different race were not investigated or arrested.” Id. at *6.  Second, the Ninth Circuit held that a defendant need not present evidence of both discriminatory effect and discriminatory intent to obtain discovery, but may simply present “some evidence” supporting one prong or the other. Id.  Sellers thus significantly expanded district court discretion to grant discovery.  Judge Nguyen’s concurrence went still further, explaining that evidence that law enforcement was targeting neighborhoods of color is itself proof of discriminatory effect. Id. at *11 (Nguyen, J., concurring).

Prior related post:

October 28, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, October 27, 2018

Following the Charleston script, will federal authorities take the lead in capital prosecution of anti-Semitic mass murderer Robert Bowers?

Shortly after Dylann Roof expressed horrid hatred by slaughtering nine people at house of worship in Charleston in June 2015, I wondered in this post whether the state or feds should be in charge of capitally prosecuting a crime that reflected what Nikki Haley then called the "worst hate that [she has] seen — and that the country has seen — in a long time."  Though it took federal authorities nearly a year to decide to move forward with a capital prosecution in May 2016, not too long thereafter a federal jury returned a death sentence in January 2017.

Sadly, if measured in terms of numbers killed, Dylann Roof's crime has now been passed repeatedly. Around this time just one year ago, Devin Kelley murdered 26 worshipers at church in Texas before being killed. And now, as this Fox News report details, another gunman filled with hate "opened fire in a Pittsburgh synagogue on Saturday morning, killing 11 people and injuring six others, including four police officers, before being taken into custody."  Here is more:

Multiple law enforcement officials identified the suspect in the shooting as Robert Bowers, 48.

Police Chief Scott Schubert said that two police officers were hit during initial contact with the shooter and that two SWAT team members were also struck “during an engagement inside the building.” He confirmed that all four law enforcement officials are in stable condition....

As officials searched for a motive for the brazen attack, which took place on Shabbat, the Jewish Sabbath, distubing details emerged.  Earlier, Hissrich said the episode fell under the category of a hate crime, and would receive a federal investigation.

Indeed, the gunman is said to have shouted that "all Jews must die" as he sprayed bullets indiscriminantly, according to KDKA-TV.  Josh Shapiro, the attorney general of Pennsylvania, said the "shooter claimed innocent lives" at a baby naming ceremony on Shabbat, what is trqaditionally the busiest of days for synagogues.

With other media reporting that Robert Bowers had a social media presence filled with anti-Semitic comments, this horrible case strike me as remarkably parallel to the Charleston church shooting in terms of the offense and the offenders (though the ages of the offenders are distinct). Especially with the current Trump Administration claiming to be even more supportive of the death penalty than the past Obama Administration, I would expect to see the federal capital prosecution script to be followed here as it was in the Roof case. And having the feds take the lead may make even more sense because the death penalty in Pennsylvania, though on the books, has been moribund for decades.

UPDATE: Not long after I published this post, I saw this new statement from Attorney General Jeff Sessions, which included these points:

These alleged crimes are reprehensible and utterly repugnant to the values of this nation. Accordingly, the Department of Justice will file hate crimes and other criminal charges against the defendant, including charges that could lead to the death penalty....

The Department of Justice will continue to support our state and local partners and we will continue to bring the full force of the law against anyone who would violate the civil rights of the American people.

October 27, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Friday, October 26, 2018

Attorney General Sessions indicates pipe bomb suspect Cesar Sayoc charged with five federal crimes and facing "only" 48 years in prison

Deal enough marijuana, as the Life for Pot website highlights, and you can get sent federal prison for life.  But, according to this statement by Attorney General Jeff Sessions, the fellow arrested for sending pipe bombs to a dozen prominent politicians and others is, at least for now, only facing five criminal charges and a maximum sentencing exposure of 48 years.  Here are excerpts from the AG's comments today:

Over the past week, more than a dozen suspicious packages have been sent through the United States Postal Service to a media outlet, a Hollywood actor, and at least seven high-ranking current and former political leaders in the Democratic Party.

This is utterly unacceptable. Political violence — or the threat of violence — is antithetical to our vigorous system of self-government. It is a threat to that respect for law and process that allows our people to accept legislation, elections, and court rulings with which we do not agree.

This is the central feature of our system of government: you advocate for your beliefs enthusiastically but we peaceably and lawfully comply with the results. Please know that from the beginning this investigative team has made this matter a top priority, focusing their great talents and expertise on neutralizing this threat. They have moved swiftly and professionally, using extraordinary technical expertise, to apprehend the one alleged responsible.  This is a demonstration of the skill, the capability, and determination of our American law enforcement.

So I am pleased to participate in this announcement that a suspect is in the custody of the FBI.  I want to remind everyone that the defendant in this case — as in every case — is innocent until proven guilty.

He has been charged today with five federal crimes, including interstate transportation of an explosive, illegal mailing of explosives, threats against former presidents and certain other persons, threatening interstate communications, and assaulting current and former federal officers.

For these charges, the defendant faces up to 48* years in prison. [*An earlier version of these remarks incorrectly stated 58 years.]

These charges may change or expand as the investigation continues.

This is a law-and-order administration.  We will not tolerate such lawlessness, and especially not political violence....

I want to reiterate that the defendant in this case is innocent until proven guilty. But let this be a lesson to anyone — regardless of their political beliefs — that we will bring the full force of law against anyone who attempts to use threats, intimidation, and outright violence to further any agenda.

We will find you.  We will prosecute you to the fullest extent of the law.

Regular readers of this blog should know I am much more troubled by people getting sentenced to "life for pot" than I am by pipe bomb suspect Cesar Sayoc facing "only 48" years in federal prison. Assuming the feds have the right guy, I would predict he ends up facing a lot more charges and that he ends up pleading guilty in the hopes of reducing his sentencing exposure. But what the feds might still charge and ultimately accept in any deal will be interesting to watch.

October 26, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet suprevised release!!

I am excited to report that the Supreme Court this afternoon, via this order list, added an interesting sentencing case to its docket by granting cert in United States v. Haymond, 17-1672, a case from the Tenth Circuit in which the defendant prevailed on the claim that the procedures used to sentence him following his supervised release violation was unconstitutional.  The Tenth Circuit opinion below in Haymond is available at this link, and the federal government's cert petition posed this "Question Presented":

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

Seeking (unsuccessfully) to avoid a cert grant, the defendant's brief in opposition to cert framed the issue of the case this way: 

Following his conviction for possession of child pornography, a Class C felony that carried a statutory sentencing range of zero to ten years, a district court judge in a revocation hearing specifically found by only a preponderance of the evidence that Andre Haymond had violated the terms of his supervised release by committing a “second sex offense” as set forth in 18 U.S.C. 3583(k).  The statute required the district court to impose a sentence of not less than five years up to life in prison for commission of the new crime, rather than the zero to two-year statutory range ordinarily applicable for revocation in Class C felony cases.  Did the enhanced sentencing range carrying a mandatory minimum sentence in the revocation proceeding violate the Court’s longstanding jurisprudence guaranteeing a defendant charged with a serious criminal offense to a right to a jury trial under the Fifth and Sixth Amendments?

Given that there are now only two members of the Supreme Court who are generally hostile to Apprendi rights under the Fifth and Sixth Amendment (Justices Alito and Breyer), I do not think it is a given that this grant of cert means that the Justices are eager to reverse the ruling below. But we really do not know just how far any of the other Justices, and especially the new guys Gorsuch and Kavanaugh, are willing to take the Fifth and Sixth Amendment in the sentencing universe, and so I am disinclined to make any predictions on any votes at this point (save for expected Justice Alito to be his usual vote against a criminal defendant).

October 26, 2018 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (6)

Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

6a00d83451574769e201b7c9134b4d970b-320wiI recently received a kind offer from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, for an update on 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 post last year, 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.  Alison's update is so detailed and interesting, I will need three posts to report all she has to report.  This first one covers what she calls "sentencing Victories":

The Federal Criminal Justice Clinic that I founded and direct at the University of Chicago Law School has engaged in systemic litigation against fake stash house robbery cases in Chicago. Our litigation has resulted in dramatically lower sentences for scores of clients and is changing the law around the country.

Sentencing Victories

Several years ago, the Federal Criminal Justice Clinic (FCJC) filed pretrial Motions to Dismiss for Racially Selective Law Enforcement on behalf of 43 defendants charged in the 12 pending fake stash house cases in Chicago, alleging that the ATF had unconstitutionally discriminated on the basis of race in targeting people of color.  The FCJC approached the legal issue of racially selective law enforcement in an innovative fashion by coordinating across cases and bringing empirical evidence to bear.  See ATF Sting Operation Accused of Using Racial Bias in Finding Targets—the Majority of Them Being Minorities, Chicago Tribune (Mar. 3, 2017).  Last December, the 9 federal judges presiding over these cases held a joint evidentiary hearing on our motions, an unprecedented occurrence. See Was Racial Profiling Behind ATF Stash House Stings? Chicago Judges to Take Up Landmark Case Today, Chicago Tribune (Dec. 13, 2017); Court Decision Could Force Changes to ATF’s Undercover Operations, NPR: Morning Edition (Dec. 15, 2017).

When the FCJC began this litigation, our clients were facing 15-to-25-year mandatory minimums and far higher sentences under the federal Sentencing Guidelines.  In the wake of the hearing, the U.S. Attorney’s Office in Chicago made highly unusual plea offers in all of the cases, offering to dismiss all of the remaining mandatory-minimum gun and drug charges. See Under Pressure by Judges, Prosecutors to Offer Plea Deals in Controversial Drug Stash House Cases, Chicago Tribune (Feb. 21, 2018).

Of the 43 clients who participated in our selective enforcement challenge, 34 have now been sentenced.  Fully 27 of the 34 received sentences of “time served,” despite requests by the government for within-Guidelines sentences that ranged as high as 12 years.  The remaining clients received significantly below-Guidelines sentences.  The chart linked here depicts these incredible outcomes and is being filed publicly with the judges to show that time-served sentences are now the norm in these cases.  As a result of the plea offers and time-served sentences, clients on bond were allowed to remain in the community, clients in custody were promptly released, and our clients collectively were spared hundreds of years in prison.  These remarkable results are attributable to the tremendous efforts of everyone in the FCJC: Professor Erica Zunkel (the Associate Director of the FCJC), Professor Judith Miller, and the many students who worked on the litigation.

These extraordinary sentencing outcomes show the power of litigating creatively and demonstrate that sometimes the fight alone can bring about systemic change, regardless of the legal outcome.  The FCJC did not win the motions to dismiss, but the U.S. Attorney’s Office and the ATF have entirely stopped bringing fake stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere.  The FCJC’s litigation also changed the judges’ perspective on these cases.  Although Chief Judge Castillo “reluctantly denied” the FCJC’s Motion to Dismiss in his two stash house cases, he wrote: “Our criminal justice system should not tolerate false stash house cases in 2018.”  United States v. Brown, 299 F. Supp. 3d 976, 984 (N.D. Ill 2018).  In particular, he said, “The inherent problems of this District’s false stash house cases must be seen through the lens of our country’s sad history of racism,” id. at 985, and implored the government to “relegat[e]” them to “the dark corridors of our past,” id. at 984; see also Editorial: Even Fighting Capone, Feds Knew Better Than to Resort to Cheap Tricks, Chicago Sun Times (Mar. 13, 2018).  In another FCJC case, Judge Gettleman issued a sentencing opinion “express[ing] this court’s disgust with the ATF’s conduct in this case.” United States v. Paxton, 2018 WL 4504160, at *2 (N.D. Ill. Sept. 20, 2018).

October 26, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, October 25, 2018

"How ‘End Mass Incarceration’ Became a Slogan for D.A. Candidates"

The title of this post is the title of this notable new New York Times article. Here is how the lengthy piece gets started:

The Dallas County district attorney, Faith Johnson, often reminds voters that she recently won a rare murder conviction against a white police officer who shot into a car full of teenagers, killing a black 15-year-old boy. “They couldn’t get that conviction in New York. They couldn’t get it in California. They couldn’t get it in Ohio,” Ms. Johnson, a Republican running to remain in office in November, told the mostly black crowd at a recent candidate forum at the African American Museum. “We got it here in Dallas County.”

But then her Democratic opponent took the microphone and pledged to be even tougher on the police. And he promised that if elected, he would reduce the number of Dallas County residents who end up behind bars. “In the first 90 days, I’m going to give you a plan to end mass incarceration,” said John Creuzot, a former judge who hopes to unseat Ms. Johnson in November.

In the past, candidates running to be district attorney — if they were challenged at all — touted their toughness on crime. But now district attorneys’ races have become more competitive, attracting large donations and challengers running on pledges to transform the criminal justice system.

The focus on local races comes as overhaul efforts have stalled on the federal level. Attorney General Jeff Sessions has vowed to aggressively prosecute nonviolent drug crimes, and President Trump has praised policing tactics such as stop-and-frisk.

The push to rethink criminal justice practices has been embraced by liberals and some conservatives, and polls show a majority of voters favor reducing the number of nonviolent drug offenders who are sent to prison. But disagreement remains about exactly how to revamp district attorney offices, which handle most criminal cases in the country.

In Jefferson County, Ala., the Democratic district attorney candidate, Danny Carr, has floated the idea of treating the possession of small amounts of marijuana more like a traffic violation. In San Antonio, Joe Gonzales, also a Democrat, has pledged to rehabilitate more nonviolent offenders, rather than locking them up.

Others are proposing more aggressive measures. Rachael Rollins in Boston, who has no Republican challenger in November, released a list of low-level crimes, such as disturbing the peace, that she would decline to prosecute altogether.

October 25, 2018 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)