Sunday, June 9, 2019

"The Orwell Court: How the Supreme Court Recast History and Minimized the Role of the U.S. Sentencing Guidelines to Justify Limiting the Impact of Johnson v. United States"

The title of this post is the title of this article recently posted to SSRN and authored by Brandon Beck. Here is its abstract:

In recent years, federal criminal defendants have enjoyed great success in challenging “residual clauses” within the United States Code as unconstitutional. This began in 2015 when the United States Supreme Court, in Johnson v. United States, struck a portion of the Armed Career Criminal Act as void for vagueness.  Johnson’s holding at first appeared monumental because it invalidated a provision commonly used to enhance the prison sentences of offenders with certain qualifying prior convictions.  Subsequent developments, however, significantly dulled the impact of Johnson, thwarting the dramatic reduction in sentences it once foreshadowed.

This Article is about how Johnson came to be and the mechanisms through which the Supreme Court has subsequently weakened Johnson’s effect.  It will describe two specific mechanisms: (1) the Supreme Court’s recasting of the history of federal sentencing in an attempt to contextualize the holding of Booker v. United States as a return to the bygone days of indeterminate sentencing; and (2) the Supreme Court’s evolving view of the role of the United States Sentencing Guidelines (Guidelines) in the federal criminal system that minimizes the Guidelines’ actual influence over a district court’s sentencing decisions.  It will then explain why these mechanisms — one that exerts control over the past and one that exerts control over the present — are both unfounded.  Finally, this Article will suggest ways in which those involved in federal criminal law — the United States Sentencing Commission (Sentencing Commission), Congress, the courts, and the criminal bar — can address the problems that the Court’s recent decisions have caused in our criminal justice system.

June 9, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Saturday, June 8, 2019

Hoping Prez Trump picks a Pardon Attorney eager to make good on his big clemency talk

Around this time last year, as highlighted in posts here and here and here, President Trump was talking up the possibility of granting clemency to lots and lots of folks. (Talking to reporters in June 2018, he said “We have 3,000 names. We’re looking at them. Of the 3,000 names, many of those names have been treated unfairly,” and their sentences are “far too long.”)

Fast forward a year, and Prez Trump is nowhere near walking the clemency walk after having talked the clemency talk.  But, as this recent Washington Examiner article hints, perhaps there is movement afoot on this front as the Justice Department seeks to find a new (and needed) Pardon Attorney.  The article is headlined "Trump urged to pick his own pardon attorney," and here are excerpts:

Worried clemency advocates are urging President Trump to select his own pardon attorney as the Justice Department reviews a stack of resumes collected on short notice.

There hasn’t been a political appointee in the post since the 1970s under President Jimmy Carter, but advocates say it could make a big difference, enhancing the position’s stature and ensuring that Trump’s interest in giving second chances extends beyond isolated cases. “I think it makes a lot of sense to have the pardon attorney job be a political one,” said Margaret Love, U.S. pardon attorney from 1990 to 1997.

The job posting was open for just a month, closing May 10, giving Love and others the impression the department may already have a candidate in mind and creating concern that a career prosecutor could take the helm.

“I wonder if they are going to make Trump aware of [the search]. Shouldn’t the president have some say over who his pardon attorney is?" said Sam Morison, who worked for 13 years as a staff attorney in the Office of the Pardon Attorney. “If they are just going to the U.S. attorney's offices, they are going to get someone who's a company man, and that's the idea,” he said.

Morison wants Trump to pick his own pardon attorney and move the office into the White House, citing institutional weight against clemency in cases the Justice Department itself prosecuted.

Though theoretically authorized to call the White House counsel, the pardon attorney reports to the deputy attorney general. In 2016, Pardon Attorney Deborah Leff quit, citing squelched White House contact. Since then, the office has lacked a permanent leader.

Morison, who now helps clemency applicants, is hopeful based on Trump’s public remarks, including that there are “a lot of people” in prison for “no reason.”

“Trump gets a lot of criticism, but I think it's refreshing for him to admit something everyone knows to be truth: The Justice Department is not perfect, and prosecutions are not perfect. Most presidents aren’t actually willing to acknowledge that,” Morison said. “I think Trump does not trust DOJ, and in this particular instance he's probably correct.”

The White House has considered criminal justice reforms, including during a September panel featuring Trump's son-in-law and senior adviser Jared Kushner and celebrity Kim Kardashian.

Heritage Foundation scholar and panelist Paul Larkin, who wants Trump to create a White House Office of Executive Clemency, returned to the White House in April for a private group discussion on clemency reform. Larkin noted Trump can create a West Wing office without congressional action and holds the exclusive constitutional power to pardon. Larkin separately advocates a commission to vet clemency requests, but that would require legislation.

CAN-DO founder Amy Povah, whose group favors “Clemency for All Non-Violent Drug Offenders,” also wants the pardon attorney divorced from the Justice Department. “We are relying on President Trump to finally be the hero we've been waiting for because he is an outsider who doesn't worry about shaking up the status quo,” she said....

The job posting closed as Trump fell behind former President Barack Obama on clemency. Trump has freed four prisoners, giving 12 people clemency including pardons, nearly all at the urging of politicians or celebrities. At this point in his presidency, Obama had issued 17 clemency grants.

One person said to have applied to be pardon attorney, immigration judge and former Guantánamo Bay prosecutor Stuart Couch, declined an interview request. White House spokeswoman Mercedes Schlapp declined to say if Trump was aware of the job opening or planned to intervene.

Last year around this time, I had become (too) hopeful that Prez Trump was prepared to change in various ways the process and politics around clemency. But, a year later, I am back to (more justifiable) pessimism and cynicism on this front. I still think it possible, especially in the wake of the praise that Prez Trump has received from his commutation of Alice Johnson's life sentence and his support for the FIRST STEP Act, that Prez Trump and his team could do something big here. But I am not holding my breath, and I feel especially bad for all the federal prisoners and their families who have likely also been hoping for too much from this Prez on this front.

A few of many recent related posts: 

June 8, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, June 7, 2019

US Sentencing Commission releases data report on resentencings pursuant to Section 404 of the First Step Act of 2018 (making retroactive provisions of the Fair Sentencing Act of 2010)

I was very pleased to receive in my email in-box this afternoon news that the US Sentencing Commission has released this short new report titled "First Step Act of 2018 Resentencing Provisions
Retroactivity Data Report."  Here is how the 10-page report was summarized via the email:

Summary

The U.S. Sentencing Commission published new information on resentencings pursuant to Section 404 of the First Step Act of 2018 (enacted December 21, 2018).

Defendants sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act are eligible for a sentence reduction under Section 404 of the First Step Act.

Data Highlights [FN1]

    • 1,051 motions were granted for a reduced sentence.
    • 78.9% of granted motions were made by the defendant, 11.8% by the attorney for the government, and 9.3% by the court.
    • Offenders received an average decrease of 73 months (29.4%) in their sentence.
      • The original average sentence was 239 months.
      • The new average sentence was 166 months.

[FN1] The data report includes motions granted through April 30, 2019 and for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 17, 2019.

Importantly, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation, and yet this report shows it already has had a big impact.  Specifically, within just over four months, this part of the FIRST STEP Act has shortened more than 1000 sentences by an average of over 6 years. With six thousand years(!) of extra prison time (and taxpayer expense) saved, this report shows that even a modest reform can have a very big impact for some folks.

June 7, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (1)

"Invisible Stripes: The Problem of Youth Criminal Records"

The title of this post is the title of this paper recently posted to SSRN and authored by Judith McMullen. Here is its abstract:

It is common knowledge in American society that persons who have criminal records will have a more difficult path to obtaining legitimate employment.  Similarly, conventional wisdom acknowledges the unfortunate fact that young people, on average, are more prone to engage in risky, impulsive, and other ill-advised behavior that might result in brushes with law enforcement authorities.  This article addresses the difficult situation faced by people whose now disabling criminal records were attained while they were under the age of 21.  Not only do such individuals face stigma and possible discrimination from potential employers, the efforts of today’s young people to “go straight” are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.

This article examines the broad scope and troubling effects of the intersection between policies attempting to “reform” youthful offenders, and policies giving any curious citizen access to records about a person’s youthful indiscretions, no matter how minor.  The article concludes that current practices are inconsistent with what we know about the development of young people, are inconsistent with developing U.S. Supreme Court jurisdiction, and are undermining the social goal of rehabilitating youthful offenders, and suggests that we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.

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

Thursday, June 6, 2019

Critically reviewing how the Bureau of Justice Statistics has reviewed its sex offender recidivism data

Last week I blogged here about the Bureau of Justice Statistics' press release providing highlights of this big report titled "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)."  A helpful reader made sure I did not miss this notable new piece by Wendy Sawyer over at Prison Policy Initiative reacting to these documents.  This posting is fully titled "BJS fuels myths about sex offense recidivism, contradicting its own new data: A new government report reinforces harmful misconceptions about people convicted of sex offenses. Here's our take on how to parse the data."  I recommend the piece in full, and here are excerpts:

A new report released by the Bureau of Justice Statistics should put an end to this misconception: The report, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), shows that people convicted of sex offenses are actually much less likely than people convicted of other offenses to be rearrested or go back to prison.

But you wouldn’t know this by looking at the report’s press release and certain parts of the report itself, which reinforce inaccurate and harmful depictions of people convicted of sex offenses as uniquely dangerous career criminals.  The press release and report both emphasize what appears to be the central finding: “Released sex offenders were three times as likely as other released prisoners to be re-arrested for a sex offense.” That was the headline of the press release.  The report itself re-states this finding three different ways, using similar mathematical comparisons, in a single paragraph.

What the report doesn’t say is that the same comparisons can be made for the other offense categories: People released from sentences for homicide were more than twice as likely to be rearrested for a homicide; those who served sentences for robbery were more than twice as likely to be rearrested for robbery; and those who served time for assault, property crimes, or drug offenses were also more likely (by 1.3-1.4 times) to be rearrested for similar offenses. And with the exception of homicide, those who served sentences for these other offense types were much more likely to be rearrested at all.

The new BJS report, unfortunately, is a good example of how our perception of sex offenders is distorted by alarmist framing, which in turn contributes to bad policy. That this publication was a priority for BJS at all is revealing: this is the only offense category out of all of the offenders included in the recidivism study to which BJS has devoted an entire 35-page report, even though this group makes up just 5% of the release cohort. This might make sense if it was published in an effort to dispel some myths about this population, but that’s not what’s happening here.

Prior related post:

June 6, 2019 in Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Spotlighting the enduring business of jails

Keith Humphreys has this notable new Washington Post piece headlined "How jails stay full even as crime falls."  Here are excerpts:

Crime has fallen dramatically in recent decades.  The number of people in jail for committing crimes hasn’t.

New Bureau of Justice Statistics data reveal that jails held 745,200 inmates in 2017, virtually identical to the 747,500 they held in 2005, and significantly higher than the 584,400 they held in 1998.  How does the correctional system keep jails full when there just aren’t as many crimes as there used to be?  By locking up an increasing number of people who are awaiting trial and could well be innocent.

The number of individuals held in jail while awaiting trial has soared 45.3 percent, from 331,800 in 1998 to 482,000 in 2017.  By contrast, the number of convicted inmates is almost the same as it was 20 years ago (252,600 in 1998 vs. 263,200 in 2017).  About 95 percent of the jail population’s growth is thus accounted for by people who haven’t been convicted of a crime.

By jailing more and more people who are awaiting trial, the criminal justice system can keep jails full no matter how much crime falls.  This may be seen as a good thing by the hundreds of thousands of people who work in jails, the companies that supply services to jails (i.e., food), and the communities that value correctional facilities as a form of economic stimulus.  But it’s a world-class bug from the point of view of innocent people who are jailed while awaiting trial, not to mention taxpayers.

Given the internal incentives to keep jails full, change will have to come from outside the criminal justice system.  The most obvious lever available, which is picking up steam in multiple states, is bail reform.  States could simply mandate that individuals accused of low-level crimes are automatically released on their own recognizance before trial. Jurisdictions that have experimented with this approach have found rates of appearing at trial in excess of 98 percent....

States, cities and counties should also consider closing or at least downsizing jails.  If the system is going to find ways to keep every bed full regardless of the crime rate, cutting the number of beds available may be the only way to prevent an increasing number of people accused of crimes from being punished as harshly as those who are actually convicted.

June 6, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

"Recording the Pain of Others: Lethal Injection's Visibility Problem"

The title of this post is the title of this new piece authored by Christen Hammock and now available via SSRN, Here is its abstract:

In July 2011, Georgia executed Andrew DeYoung for murdering his parents and sister.  Pursuant to a motion to preserve evidence brought by counsel for Gregory Walker, another man on Georgia’s Death Row, DeYoung’s execution produced the only existing video of a lethal injection in the United States, which remains under seal in a Georgia courthouse.  This effort to record an execution reverses the historical trend of making executions less visible by bringing them inside prison walls and limiting eyewitnesses.  Unlike similar cases, the successful motion to preserve DeYoung’s execution and autopsy on video did not litigate the public’s right to see executions, but instead argued that visual evidence of a botched execution was necessary to support another condemned man’s Eighth Amendment claim.

This project evaluates this strategy’s assumption that video representation is less mediated and thus more effective and accurate as evidence than traditional eyewitness and expert testimony.  This evaluation proceeds by examining the rhetorical strategies used in death penalty abolition litigation and judicial opinions that have, in turn, upheld and struck down methods of capital punishment.  Part I examines lethal injection’s “invisibility problem” and argues that this problem stems from secrecy surrounding state execution protocols and the overwhelming metaphor of healing that lethal injection’s “weapons” project.  Part II explores a potential solution to this problem — creating visual records of lethal injections — using the litigation surrounding DeYoung’s execution as an example.

June 6, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

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

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

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

Here are the basic particulars:

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

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

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

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

June 6, 2019 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity"

C1_2019_Collateral_Consequences_Report_05172019_102_with_outline_RGBThe title of this post is the title of this notable new report from the National Association of Criminal Defense Lawyers (NACDL). Here is the report's executive summary:

On August 23–25, 2018, NACDL hosted its 17th Annual State Criminal Justice Network Conference and Presidential Summit in Atlanta, Georgia.  The Conference — Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity — examined the destructive effect that a vast network of penalties, debarments, and disabilities following a criminal conviction has on the millions of people who have come in contact with the criminal justice system. The Conference also explored the disparate impact that these collateral consequences have on communities of color.  At the same time, the Conference highlighted the groundbreaking work that is helping people break free from the shackles while providing a roadmap for national reform.

NACDL’s Executive Director, Norman L. Reimer, described the path to reform as following the emerging consensus that we must restore humanity to our criminal justice system. In pursuit of that goal, the Conference included more than just criminal defense lawyers; it brought together a community of prosecutors, judges, formerly incarcerated people, probation officers, social workers, and activists.  The 60th President of NACDL, Drew Findling, welcomed this diverse group of Conference participants and attendees to “an incredible congregation of people [who] all care about one thing: justice.”  These common grounds of justice and humanity formed the basis and set the tone for the entire Conference.

To facilitate the human narrative of justice through shared stories and lived experiences, every panel at the Conference included at least one person who was previously incarcerated in America.  Most panels included more than one formerly incarcerated person, and a few panels consisted entirely of formerly incarcerated people.  While there was some disagreement about the best terminology, resources, and methods to use in the fight against collateral consequences, the Conference represented an inclusive, humanistic approach to discussing the difficult topics of racism, morality, and social responsibility within the criminal justice system and the public at large.  Some of the broad recommendations for reducing the impact of collateral consequences included:

• Building up resources in communities of color

• Funding better education systems

• Protecting and asserting the right to vote

• Increasing awareness of mental health issues

• Reforming law enforcement education to foster improved community relations

• Building coalitions at the local, state, and national levels

• Rehabilitating and educating people while they are incarcerated

• Making prisons and prosecutions more transparent

• Banning the box on employment applications that asks about prior criminal records

• Providing more employment opportunities for people getting out of prison

• Sharing success stories and changing the narrative about people who have been incarcerated

This report is intended to facilitate more discussion and to inspire further action on these issues so that anyone — not just the Conference attendees and participants — can work to shatter the shackles of collateral consequences.

June 6, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Wednesday, June 5, 2019

Curious (but still encouraging) discussion of expected release of prisoners after FIRST STEP Act "good time" fix becomes operational

In a few older FIRST STEP Act implementation posts (linked below), I flagged the statutory provision in the Act that delayed the immediate application of its "good time" fix.  (This fix provides that well-behaved prisoners will now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time.")  Though folks had been hoping to fix the fix so that it could be immediately applicable, now enough time has passed that we are getting close to when the "good time" fix is very likely to kick in (assuming the Attorney General complies with a key deadline in the Act).   The coming July arrival of the "good time" fix kicking in has prompted this notable new Marshall Project piece headlined "White House Pushing to Help Prisoners Before Their Release."  Here are excerpts:

The White House is racing to help an estimated 2,200 federal prisoners line up work and housing before they are released next month, according to several policy experts and prisoner advocates who have been involved in the effort.

The early release is made possible by the First Step Act, a federal law passed with bipartisan support in December that is aimed at refocusing the criminal justice system on rehabilitation.  The prisoners scheduled to be let out in July are the largest group to be freed so far.  Their sentences are being reduced thanks to a clause that goes into effect next month, which effectively increased the amount of credit prisoners could get for good conduct in custody....

With weeks remaining before thousands more prisoners walk free, the Trump administration has assigned the U.S. Probation Office and the Department of Labor to help people prepare to return home.  White House officials are also seeking as much help as possible from the private sector, according to policy experts involved in the effort. They’ve asked major corporations to make pledges to hire the ex-prisoners while pushing the Social Security Administration to make sure each prisoner has a Social Security card needed for employment.  The Salvation Army is providing help with housing.  White House officials have discussed asking ride-share companies and public transportation agencies to offer free rides, the policy experts and advocates for prisoners said.

The Society for Human Resource Management, a national membership association for people working in human resources, has been recruited to work with states and private employers to offer education, legal advice and guidance on how companies can hire ex-prisoners. President and CEO Johnny C. Taylor Jr. said his organization had already begun that work last year but has ramped up a messaging campaign to let companies know that more than 2,000 employable people are about to start asking for jobs.“We need them, and they need us,” he said....

Outside groups that lobbied for the First Step Act say preparing prisoners for the workforce has never been more important, with unemployment at record lows and businesses scrambling to fill positions.“We know this administration is focused on the roughly 2,200 federal prisoners who are expected to be released this summer under the First Step Act,” said Mark Holden, senior vice president of Stand Together, a justice reform group funded by billionaire industrialist Charles Koch. “We all share the same vision that those leaving prison have access to basic needs and services that will help them safely return home and become contributing members of society.”

In this twitter thread, Kevin Ring of FAMM highlights some reasons I find this press piece curious, such as the fact that it provides little statistical or substantive contexts. One would not know, for example, that roughly 1000 federal prisons are released on an average week and that over 50,000 persons are released from state and federal prisons each month. And, as Kevin notes, a lot of folks who will now be getting the benefit of the "good time" fix may already be on home confinement and/or in halfway houses and working on employment prospects.

That all said, I still want to trump and praise the fact that the White House is actively involved now in trying to help ensure good outcomes for FIRST STEP Act beneficiaries and is calling upon both government agencies and private entities to help with this effort.  In addition to increasing the likelihood of good outcomes, this investment by the White House and these broader stories can and should further demonstrate that criminal justice reform does not and cannot stop when a new law gets passed.  Implementation, and follow-up by all sorts of players, is critical to success and requires persistent energy and commitment. 

(As an aside, Kevin's tweets note that the biggest number of released-at-once prisoners in the federal system came after the 2013 drug guideline reductions were made retroactive, which was partially supported by the Obama Administration.  That point in this context now has me wondering if the Obama Administration took any special steps to help those released federal prisoners or those who got out via Prez Obama's clemency initiative.)

Prior related posts:

June 5, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

"IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults"

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

For too long, the criminal law has only provided legal protections for defendants who exist on the margins, namely, those who suffer from mental retardation, insanity, or are too young to appreciate the consequences of criminal conduct.  In so doing, the criminal law has failed to address the gray area in which most defendants reside, and for which all defendants lack sufficient legal protections.  For example, at the guilt/innocence phase of a criminal trial, the legal system offers little, if any protections, for defendants afflicted with mental illnesses, personality disorders, neurological impairments, and borderline intellectual functioning.  This is fundamentally unjust, contrary to relevant empirical evidence regarding the effects of cognitive, psychiatric, and psychological disorders on culpability, and results in profoundly unjust sentences that, in many cases, are entirely disproportionate to a defendant’s culpability.  As such, the time has arrived for the courts and legislators to recognize that defendants need not be intellectually disabled, insane, or under the age of eighteen to trigger legal and constitutional protections at the guilt/innocence phase that account for a defendant’s reduced or, even, zero culpability in certain cases.

June 5, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Spotlighting the "modern-day gulags" that hold sex offenders indefinitely in "civil commitment"

A helpful reader made sure I did not miss this new extended Washington Spectator piece headlined "Modern-Day Gulags In the Golden State."  I recommend the full piece, which gets started this way:  

Back in 1997, the Supreme Court ruled that the practice known as civil commitment was legal.  This meant that 20 states — which had passed laws permitting the ongoing incarceration of sex offenders — could continue to keep the men confined even after they completed their prison terms.  (See “Sex Crimes and Criminal Justice,” from the May 2018 issue of The Washington Spectator, available here.)

All it took (and still takes) is for two psychologists to claim the men might commit a new crime and a judge to say their cases can move forward.  They are then labeled sexually violent predators (SVPs) and reincarcerated in prisonlike facilities until new trials are held — supposedly to determine if they will be civilly committed or released.  The result? Some men have been waiting for their day in court for 15 to 20 years. In the meantime, many have died.

No matter that the men already served their prison time.  Or that psychologists, psychiatrists and lawyers I interviewed insist that very few should be confined — that instead, the vast majority, many of whom are elderly or ill, should be let out.

Eric Janus, former president and dean of Mitchell Hamline Law School in St. Paul, Minn., says that continuing to incarcerate the men to comfort fearful constituents doesn’t make the public safer.  The bottom line?  “I’ve never seen numbers that show there are fewer sex offenses or re-offenses in the 20 states that have the SVP laws than in the other 30 states that don’t,” Janus says.

Then why are roughly 2,500 men still stashed away across the country?  Locking up sex offenders is always good politics, but it is also extraordinarily profitable.  And since California has the biggest budget and locks up the biggest number — three times the next three states’ combined — the Golden State offers the biggest boondoggle to explore.

To document a system awash in double-talk and dollars, I interviewed 45 lawyers, psychologists, psychiatric technicians, rehabilitation therapists, nurses, journalists, prison reform advocates and civilly committed men over eight months. Nearly all feared retaliation and asked not to be named.

As the first paragraph above indicates, this is the second piece in a series, and folks should be sure to also check out this first piece "Sex Crimes and Criminal Justice."

June 5, 2019 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Tuesday, June 4, 2019

Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction

4-5.cover-sourceI am extraordinarily excited to be able to report the exciting news that the latest extraordinary issue of the Federal Sentencing Reporter is now fully available on-line at this link.  The cover page from the Issue, which lists the 16(!) original pieces on various aspects of "The Trial Penalty," can be accessed here.

This issue of FSR emerges from the publication of a great report last year by the National Association of Criminal Defense Lawyers (NACDL) titled "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It" (blogged here).  Folks at FSR contacted the folks at NACDL to explore the idea of developing a set of new commentaries using "The Trial Penalty" report as a springboard.

Wonderfully, Norman Reimer, executive director of NACDL, working with his colleague Martín Sabelli, NACDL's second vice president, worked tirelessly to solicit an outstanding array of original articles for this issue.  They were so productive, the project became a special FSR double issue so that a lengthy reprint of the "The Trial Penalty" report could appear together with all the terrific solicited commentaries addressing the importance of criminal trials and their disappearance from historical, practical, empirical, and international perspectives.

As the title of this post hints, I think this new FSR double issue merits a series of posts to highlight all of its terrific contents.  So here I will start by recommending the issue's terrific introduction authored by Norman Reimer and Martín Sabelli, which is fully titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  Here is its opening paragraphs:

Every day, in virtually every criminal court throughout the nation, people plead guilty solely as a consequence of a prosecutor’s threat that they will receive an exponentially greater post-trial sentence compared to the pre-trial offer.  The process is simple and the logic inexorable: the prosecutor conveys a settlement offer to the defense attorney–very often at the outset of the case before the defense has investigated or received discovery–threatening a post-trial sentence much greater than the pre-trial offer.  The defense attorney–often before having had an opportunity to establish a relationship with the client–conveys that offer to her client who must choose between the opportunity and right to defend and the risk of adding years to the sentence if not decades after trial.  That differential is known as the trial penalty, and this scene unfolds routinely in courtrooms across the country as if the Framers had intended this legalized coercion to be the fulcrum of the criminal justice system.

The Framers did not so intend. The Framers, surprisingly for a modern reader, considered jury trials to be every bit as important as the right to cast votes for our representatives. In fact, John Adams declared that ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.’’  President Adams’ colorful language reflects the strength of his view — a view shared by his contemporaries and the Framers — that the right to trial by jury protects the liberties of all individuals, not just the accused.  The Framers imagined a process in which the accused, assisted by counsel, evaluated the charges, received the evidence, and elected to exercise or not exercise the right to compel the government to prove guilt beyond a reasonable doubt.

June 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

"Reconsidering The 'Violent Offender'"

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

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

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

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

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

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

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

Monday, June 3, 2019

Intriguing SCOTUS decision to GVR Fourth Amendment case "to consider the First Step Act of 2018" over DOJ opposition

A number of helpful folks made sure I did not miss the fact that the Supreme Court's order list today started with this disposition of Wheeler v. US:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.  The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for the court to consider the First Step Act of 2018, Pub. L. No. 115-391 (2018).

Interestingly, the original cert petition in Wheeler concerned a Fourth Amendment issue (discussed here at Bloomberg Law).  But, following the passage of the FIRST STEP Act, Wheeler's counsel filed this supplemental brief on the FIRST STEP Act issue.  That supplemental brief states that after the original petition was filed, "new legislation was enacted under which Mr. Wheeler could not be subject to the 20-year sentence imposed.  Mr. Wheeler files this Supplemental Brief to explain the impact of the new legislation on his sentence and to request relief from his unlawful sentence as an alternative remedy."

Here is part of the feds response to the supplemental brief which comes at the tail of of its cert opposition brief:

The First Step Act amended 21 U.S.C. 841(b)(1)(A) to reduce the statutory minimum sentence for certain drug offenses by recidivists from 20 years to 15 years.  See First Step Act § 401(a)(2).  But in Section 401(c), titled “Applicability to Pending Cases,” Congress provided that “the amendments made by th[at] section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”  § 401(c) (emphasis added).  Here, petitioner’s sentence was imposed in 2016, long before the First Step Act was enacted, and petitioner has been serving that sentence since that time....  The First Step Act is thus inapplicable to petitioner.

Petitioner’s contention (Supp. Pet. 4) that the First Step Act applies to all criminal cases pending on “direct appellate review” is incompatible with the language of the statute. Congress instructed that the relevant provisions of the First Step Act apply only to pending cases where “a sentence * * * has not been imposed.”  First Step Act § 401(c).

In this post back in December 2018, I highlighted some of the "pipeline" ambiguity concerning which on-going cases could or should get the benefit of the the new FIRST STEP Act provisions. Though one might read the GVR by SCOTUS here as an indication that the Court thinks all pending cases should benefit from the new legislation, it might be more accurate to say that the Justices want the Third Circuit to sort this matter out in the first instance.

June 3, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Splitting 5-4 in a distinctive way, SCOTUS rules against defendant seeking to avoid tolling of supervised-release term

The Supreme Court handed down four opinions this morning, but only one came in a criminal case and the opinion was not in one of the cases that so many criminal justice court-watchers are eagerly waiting for (like Gundy or Gamble or Haymond).  But the ruling this morning in Mont v. US , No. 17-8995 (S. Ct. June 3, 2019) (available here), on a technical issue of when federal supervised release terms run, should capture the attention of SCOTUS watchers because of the distinctive (and I think unprecedented) line-up of the votes in this 5-4 split opinion: 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, ALITO, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, KAGAN, and GORSUCH, JJ., joined.

The ruling of the Court begins and ends this way:

This case requires the Court to decide whether a convicted criminal’s period of supervised release is tolled — in effect, paused — during his pretrial detention for a new criminal offense. Specifically, the question is whether that pretrial detention qualifies as “imprison[ment] in connection with a conviction for a Federal, State, or local crime.” 18 U. S. C. §3624(e). Given the text and statutory context of §3624(e),we conclude that if the court’s later imposed sentence credits the period of pretrial detention as time served for the new offense, then the pretrial detention also tolls the supervised-release period.....

In light of the statutory text and context of §3624(e), pretrial detention qualifies as “imprison[ment] in connection with a conviction” if a later imposed sentence credits that detention as time served for the new offense.  Such pretrial detention tolls the supervised-release period, even though the District Court may need to make the tolling determination after the conviction.  Accordingly, we affirm the judgment of the Sixth Circuit.

The dissent begins this way:

A term of supervised release is tolled when an offender “is imprisoned in connection with a conviction.” 18 U. S. C. §3624(e).  The question before the Court is whether pretrial detention later credited as time served for a new offense has this tolling effect.  The Court concludes that it does, but it reaches that result by adopting a backwardlooking approach at odds with the statute’s language and by reading the terms “imprisoned” and “in connection with” in unnatural isolation.  Because I cannot agree that a person “is imprisoned in connection with a conviction” before any conviction has occurred, I respectfully dissent.

Though I will need to read the opinion closely to see whether there are some possible broader implications of this ruling, but this case shows yet again that Justice Gorsuch is much more inclined to vote in favor of criminal defendants (in non-capital cases) than other GOP appointees. And here we have Justice Ginsburg proving to be the swing voter delivering a loss to a criminal defendant.

June 3, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Fourteen+ years after inventing reasonableness review in Booker, SCOTUS finally grants cert to address how it works procedurally

The Supreme Court's new order list this morning includes an exciting blast (from the past?) for federal sentencing fans in the form of a cert grant in Holguin-Hernandez v. US, No. 18-7739. The petition for certiorari in this case sets forth this simple question presented: "Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence."   

Notably, the government has this slightly different accounting of what's at issue in this case in its cert opposition brief: "Whether the court of appeals correctly reviewed for plain error petitioner’s claim that the district court imposed a substantively unreasonable term of imprisonment for petitioner’s violation of the terms of his supervised release, when petitioner failed to object in the district court to that term of imprisonment."  (The two-page Fifth Circuit panel ruling in this case is here; SCOTUSblog has the briefing and other documents in this case at this link.)

There is a circuit split on this issue of just how reasonableness review is to operate procedurally, but that split has been pretty well established and entrenched for the better part of a decade.  I suspect that the recent new arrivals to the Supreme Court, particularly Justice Kavanaugh but maybe also Justice Gorsuch, may explain why this long-ignored issue has now gotten taken up by the Justices.

Sadly, it seems the cert grant in this case concerns only a procedural issues surrounding the standards of review rather than the substantive particulars of how circuit courts should judge the reasonableness of a sentence.  But, given that it has been nearly a decade since SCOTUS has said anything significant about reasonableness review (I think of the 2011 Pepper case as the last big ruling in this space), even this Holguin-Hernandez glass of reasonableness water looks like an oasis in the desert of post-Booker SCOTUS jurisprudence.

June 3, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 2, 2019

New Illinois marijuana legalization legislation gives particular attention to criminal justice concerns

As some readers know from my repeated mention of my article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I am especially interested in how marijuana reform can and should intersect with criminal justice concerns and should advance criminal justice reform efforts.  Consequently, I am especially pleased and intrigued that the new (soon to be official) Illinois marijuana legalization legislation gives particular attention to criminal justice matters.  This USA Today article, headlined "Illinois posed to legalize marijuana sales, expunge criminal records for pot crimes," provides some of the particulars:

Illinois is poised to legalize marijuana sales with sweeping legislation that would also automatically expunge the criminal records of people convicted of minor pot possession.

State lawmakers gave final approval to the bill Friday and Gov. JB Pritzker said he will sign the measure, which make Illinois the first state to legalize marijuana sales via its legislature.  Most other states that have legalized cannabis did so via a ballot initiative process.  Vermont's legislature legalized cannabis but prohibited commercial sales.

"This will have a transformational impact on our state, creating opportunity in the communities that need it most and giving so many a second chance," Pritzker said in a statement. "In the interest of equity and criminal justice reform, I look forward to signing this monumental legislation."...

Prizker's office didn't give a timeframe for when he might sign the law, which would go into effect Jan. 1, 2020.  Under the system, adults could buy and possess up to 30 grams of cannabis "flower," along with marijuana-infused foods known as edibles, and small amounts of highly concentrated extracts. Non-residents could buy half the amount.

The law also establishes a system for taxing and regulating marijuana, and consumers would pay up to 34.75% tax on their purchases, depending on potency.  Regulators would give preference points to members of minority groups seeking to get business licenses, and state-certified labs would test products for potency and contaminants, a growing concern among users.  Backers say the measure will create jobs in communities around the state, an argument made by Canadian officials when they legalized marijuana nationally last year.

Money raised by the new taxes would first be dedicated to expunging an estimated 770,000 minor cannabis-related cases, according to the bill's language.  Expungement has long been a goal of marijuana-legalization advocates, who argued the federal government's so-called War on Drugs disproportionately targeted minorities.  Other states have similar provisions, usually added after the fact, but Illinois' law is the first to contain such a sweeping expungement provision from the start.

Any tax money left over after would be used to support drug-treatment and enforcement programs, improve mental health counseling access, and bolster the state's general fund.

"Cannabis was at the heart of our nation's disastrous War on Drugs.  This is a measure that will improve people's lives on a level commensurate with the devastation wrought by prohibition," said Steve Hawkins, executive director for the pro-legalization Marijuana Policy Project, which worked with lawmakers and Pritzker to write the law.  "Illinois is on the brink of replacing a shameful, destructive policy with the most far-reaching cannabis law ever enacted."

In my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I urged states to utilize tax revenues gained from marijuana legalization to advance expungement efforts, and am so pleased to see Illinois make expungment efforts its very first funding priority.  In my article, I also urged the creation of administrative infrastructure to support this work in the form of what I call a "Commission on Justice Restoration."  I do not believe the Illinois legislation goes this far, but maybe future reforms in that state or elsewhere will. 

In the meantime, I realize I am way behind in providing here a round up of some posts from my blogging at Marijuana Law, Policy and Reform that highlight the intersections of marijuana reform and criminal justice issues.  So:

June 2, 2019 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"How to Convince Americans to Abolish the Death Penalty"

The title of this post is the headline of this New Republic commentary authored by Austin Sarat. Here are excerpts:

When New Hampshire abolished the death penalty on Thursday, the reaction to the news — at least nationally — was rather muted.  Here was a New England state, after all, whose machinery of death had rusted long ago.  “This debate has been largely symbolic, because New Hampshire has neither an active death penalty system nor any executions on the horizon,” The Washington Post reported.  “The state has only one person on death row … and last carried out an execution in 1939.”...

But there is greater significance here than it seems.  For starters, New Hampshire joins a growing trend.  Now, since 2007, seven states have abolished capital punishment by legislative action, and three by judicial decree.  (Nebraska abolished it legislatively, but voters subsequently reinstated it in a referendum.)  Four other states have a moratorium in place preventing anyone from being executed.  This period has been one of the most successful in the modern history of death penalty abolitionism.

And the politics of New Hampshire are not those of, say, Massachusetts.... While the state Senate and House are both controlled by Democrats, they needed votes from across the aisle to reach the two-thirds threshold to override Republican Governor Chris Sununu.  There are thus important lessons from New Hampshire about how abolitionists can be successful across the country — namely, by shifting the grounds of the debate so as not to be painted as soft on crime or out of touch with mainstream American values....

Traditionally, opponents of the death penalty have responded to [soft-on-crime] arguments by claiming that even the most heinous criminals are entitled to be treated with dignity or that there is nothing that anyone can do to forfeit their “right to have rights.”  Each of these arguments rejects the simple and appealing rationale for capital punishment: retribution.  But in doing so, it puts opponents of the death penalty on the side of society’s most despised and notorious criminals, of cop killers and of child murderers.  It is not surprising, then, that such arguments, while popular in philosophical and political commentary, have never carried the day in the debate about capital punishment in the United States.

New Hampshire abolitionists avoided this pitfall, changing the argument in ways that can and do appeal to a broader range of citizens.  They allied themselves with the plight of the families of murder victims.  “I am grateful to the many survivors of murder victims who bravely shared their stories with the Legislature this session, many of whom told us that the death penalty, with its requisite long legal process, only prolongs the pain and trauma of their loss,” said Democratic Senator Martha Hennessey in explaining her vote to override the veto.

They also avoided the soft-on-crime label by noting that the death penalty does not make citizens safer and that it is “archaic, costly, discriminatory and violent.”  And they enlisted conservative allies.  As one New Hampshire abolitionist said, “more conservatives than ever know the death penalty is a failed government program that does not value life, threatens innocent people, and wastes money.”

The campaign to abolish capital punishment succeeded in New Hampshire, just as it has succeeded elsewhere, because abolitionists resisted the temptation to engage with the red meat arguments of many death penalty supporters.  They appealed to American values of fairness, equal treatment, and pragmatism.  In so doing, they formed a coalition of legislators, political leaders, and citizens who shared the late Supreme Court Justice Harry Blackmun’s view that it is time to “stop tinkering with the machinery of death.”

Prior related post:

June 2, 2019 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, June 1, 2019

NYU Center, reviewing historical state clemency grants, spotlights Massachusetts' ugly recent history

As noted in this prior post and as detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has a new project focused on state clemency histories with reports on particular state experiences.  The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and is available at this link.  Now the second report, titled "Willie Horton’s
Shadow: Clemency in Massachusetts," has been released and is available at this link.  Here is how it gets started:

A healthy criminal justice system punishes no more than is necessary and creates opportunities for rehabilitation.  Clemency advances both goals.  This Report of the Center’s State Clemency Project focuses on Massachusetts, where just one sentence has been commuted since 1997.  Without a realistic opportunity for clemency, more than 1,000 individuals serving life-without-parole sentences in Massachusetts — 13 percent of the state’s prison population—are condemned to die behind bars.

June 1, 2019 in Clemency and Pardons, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States"

The title of this post is the title of this notable new paper authored by my Ohio State colleague Amy Cohen. Here is its abstract:

For decades, left proponents of restorative justice have wondered if their preference for “less state” would attract complex bedfellows and political alliances.  But it was only as the crisis of mass incarceration hit American cultural and political consciousness that a wide range of libertarian and conservative political organizations and actors began to promote restorative ideals.  This Article traces changing political, theological, and ideological articulations of restorative justice from the 1970s to now, knit together by a common grammar of relationality.  It argues that today, restorative justice exemplifies a distinctively moral form of neoliberalism, complicating the arguments of scholars who describe rightwing criminal justice reform as exemplifying cost-cutting and efficiency.  This account of restorative justice, in turn, reveals different possibilities and dangers for bipartisan collaborations: moral-relational values may be genuinely shared as they compete to establish highly disparate political, economic, and social visions.

June 1, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Another notable study spotlighting a now ubiquitous technology to help explain the great crime decline

One of many major mysteries in this modern history of US crime and punishment is just why crime rates rose so dramatically in the 1970s and 1980s and then the fell dramatically in the 1990s and 2000s. Lots of folks have lots of data to support lots of ideas, and this recent Atlantic piece by Alexis Madrigil, headlined "The Collapsing Crime Rates of the ’90s Might Have Been Driven by Cellphones," provides perhaps another piece of the story.  Here are excerpts from the piece (with a few links preserved) that provides a nice review of the state of this debate:

It’s practically an American pastime to blame cellphones for all sorts of societal problems, from distracted parents to faltering democracies. But the devices might have also delivered a social silver lining: a de-escalation of the gang turf wars that tore up cities in the 1980s. The intriguing new theory suggests that the arrival of mobile phones made holding territory less important, which reduced intergang conflict and lowered profits from drug sales.

Lena Edlund, a Columbia University economist,  and Cecilia Machado, of the Getulio Vargas Foundation, lay out the data in a new National Bureau of Economic Research working paper. They estimate that the diffusion of phones could explain 19 to 29 percent of the decline in homicides seen from 1990 to 2000.

“The cellphones changed how drugs were dealt,” Edlund told me. In the ’80s, turf-based drug sales generated violence as gangs attacked and defended territory, and also allowed those who controlled the block to keep profits high.  The cellphone broke the link, the paper claims, between turf and selling drugs. “It’s not that people don’t sell or do drugs anymore,” Edlund explained to me, “but the relationship between that and violence is different.”

Edlund and Machado used Federal Communications Commission data on cellular-infrastructure deployment and matched it against the FBI’s (admittedly spotty) database on homicides across the country. They demonstrated a negative relationship that was even stronger for black and Latino populations. The title of their paper suggests that a crucial aspect of understanding declining crime has been hiding in plain sight for years: “It’s the Phone, Stupid: Mobiles and Murder.”

Their theory is the latest entry in a series of attempts to explain the components of the long-term decline in crime that began in the early 1990s. The rise and fall of crime in the late 20th century (and into the 21st) is one of the great mysteries of social science. No one has come up with an explanation that fully—and incontestably—accounts for the falling crime rates. Many have tried, and shown substantial initial results, only to have their findings disputed.

Edlund and Machado are not the first to suggest that phones could have played a role in the decline.  Among others, the criminologists Erin Orrick and Alex Piquero were able to show that property crime fell as cellphone-ownership rates climbed.  The first paper on the cellphone-crime link suggested that phones were an “underappreciated” crime deterrent, as mobile communications allow illegal behavior to be reported more easily and quickly.

But cellphones are far from the only possible explanation.  Any measurement that was going up in the ’90s correlates with the decline of violence.  Thus, there are probably too many theories out there, each with limited explanatory power.   One commonsense argument that’s been made is that certain police tactics (say, stop-and-frisk or the “broken windows” approach) or the explosion of incarceration rates must have been responsible for the decline, but most careful reviews have found little evidence to suggest that they had more than a marginal impact.

The University of New Haven criminologist Maria Tcherni-Buzzeo published a review of the contending theories in 2018 that found no fewer than 24 different explanations for why crime began a multi-decade decline in the early 1990s, through economic times good and bad, in different countries and cities, under draconian policing regimes and more progressive ones.

Every theory has its proponents and detractors.  For example, the economists Steven Levitt and John Donohue proposed (and doubled down on) the idea that legalizing abortion reduced crime rates by cutting down on the number of unwanted pregnancies and children born into situations that make them more likely to fall into criminal life. Tcherni-Buzzeo described the theory as “thoroughly debunked by empirical research” in a 2018 book chapter looking at the theories behind the crime decline. Yet Levitt and Donohue’s most recent research, published as a working paper this month, contends they were even more right all along than they’d thought, and that the “cumulative impact of legalized abortion on crime is roughly 45 percent, accounting for a very substantial portion of the roughly 50–55 percent overall decline from the peak of crime in the early 1990s.”

June 1, 2019 in National and State Crime Data, Technocorrections | Permalink | Comments (1)

Friday, May 31, 2019

"Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law"

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

Data-driven decision-making regimes, often branded as “artificial intelligence,” are rapidly proliferating across the US criminal justice system as a means of predicting and managing the risk of crime and addressing accusations of discriminatory practices.  These data regimes have come under increased scrutiny, as critics point out the myriad ways that they can reproduce or even amplify pre-existing biases in the criminal justice system.  This essay examines contemporary debates regarding the use of “artificial intelligence” as a vehicle for criminal justice reform, by closely examining two general approaches to, what has been widely branded as, “algorithmic fairness” in criminal law: 1) the development of formal fairness criteria and accuracy measures that illustrate the trade-offs of different algorithmic interventions and 2) the development of “best practices” and managerialist standards for maintaining a baseline of accuracy, transparency and validity in these systems.

The essay argues that attempts to render AI-branded tools more accurate by addressing narrow notions of “bias,” miss the deeper methodological and epistemological issues regarding the fairness of these tools.  The key question is whether predictive tools reflect and reinforce punitive practices that drive disparate outcomes, and how data regimes interact with the penal ideology to naturalize these practices.  The article concludes by calling for an abolitionist understanding of the role and function of the carceral state, in order to fundamentally reformulate the questions we ask, the way we characterize existing data, and how we identify and fill gaps in existing data regimes of the carceral state.

May 31, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Thursday, May 30, 2019

Alabama completes execution of Christopher Price seven weeks after delay based on dispute over execution methods

As reported in this prior post, Alabama was planning to execute Christopher Price seven weeks ago as punishment for his 1991 killing of a minister.  But the execution was called off that day because his death warrant expired before the Supreme Court vacated a lower court stay.  Tonight, as reported in this AP article, the execution was completed.  Here are the basics:

A man convicted of using a sword and knife to kill a country preacher during a 1991 robbery was put to death by lethal injection in Alabama on Thursday, weeks after he was initially scheduled to die. Christopher Lee Price, 46, became the second inmate put to death in Alabama in two weeks. The execution was carried out at Holman prison and he was pronounced dead at 7:31 p.m.

Price, who was nearly put to death in April before an execution warrant expired, sought a stay from the U.S. Supreme Court based on a challenge to the state's method of using three drugs during lethal injections. The nation's high court, by a 5-4 vote, refused to halt the execution Thursday night. The conservative majority did not give a reason for denying the stay.

Price had asked to instead die by nitrogen hypoxia, an execution method Alabama has legally authorized but not developed. His lawyers argued the method, which kills by depleting the body of oxygen, would be less painful than lethal injection.

Price sued the state over Alabama's current practices, and the inmate's attorneys contend the state is rushing to execute him two weeks before the trial date.... In a dissent Thursday, Justice Stephen Breyer wrote that the court should have delayed the execution until the trial could take place.

Justice Breyer's dissent from the denial of an execution stay, which was joined in full by Justice Ginsburg and in part by Justices Sotomayor and Kagan, is available at this link.

May 30, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Sharkfests and Databases: Crowdsourcing Plea Bargains"

The title of this post is the title of this interesting new paper now available on SSRN authored by Kay Levine, Ronald Wright, Nancy King and Marc Miller. Here is its abstract:

The stock image of a plea negotiation in a criminal case depicts two lawyers in frayed business suits, meeting one-on-one in a dim corner of a courtroom lobby.  The defendant is somewhere nearby, ready to receive information about the prosecutor’s offer and to discuss counteroffers with his attorney and perhaps with his family.  The victim or arresting officer may be available by phone, although neither has the power to veto a deal the prosecutor otherwise thinks is reasonable.  In this depiction of plea bargaining, the defense attorney and the defendant form one unit, allied against another unit — comprised of the prosecutor, victim, and police officer — while remaining independent of other defense units in terms of information, interests, and goals.  Each defendant’s case requires and receives individualized attention, and each case is bargained on its own terms.

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations.  In particular, we examine the effects of crowdsourcing tactics in the negotiation setting.  Could the effects of the group negotiation setting be reproduced, institutionalized, and furthered by the creation of a database about plea negotiations and case outcomes?  The individual attorneys who negotiate guilty pleas could likewise benefit from access to data beyond their individual caseloads.  Crowdsourced plea-bargaining data can help attorneys to connect the dots between cases and escape the illusion that they negotiate alone.

May 30, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

With legislative override of Gov veto, New Hampshire formally repeals its death penalty

As reported in this local press piece, "New Hampshire became the 21st state to repeal its death penalty Thursday, after a vote in the Senate to pass legislation over the objections of Gov. Chris Sununu." Here is more:

In a 16-8 vote after unusually brisk debate, senators passed an override measure with the necessary two-thirds of support to override Sununu’s veto, issued earlier this month. In a series of emotional pleas, some senators sided with governor, arguing that the prohibition served as a deterrent for the murder of law enforcement and provided justice that life imprisonment cannot.

But others argued repealing the punishment was a matter of humanity. “This question will be answered but not by political philosophy or alliances but by lifetimes of individual experiences that we all carry with us,” said Sen. Harold French, a Franklin Republican who voted to override Sununu's veto. “Today I will vote to voterride the veto of our governor. Because this vote is about our state and about what kind of state we are all going to be a part of.”

The vote followed an equally narrow vote in the House, which voted this month to override the veto with no votes to spare....

The repeal takes effect immediately, and according to the statute applies only to convictions from May 30, 2019 and onward.

“I have consistently stood with law enforcement, families of crime victims, and advocates for justice in opposing a repeal of the death penalty because it is the right thing to do,” Sununu said in a statement after Thursday’s vote. “I am incredibly disappointed that the Senate chose to override my veto."

As noted in prior posts linked below, supporters of this repeal claims the law would not be applied retroactively to the benefit of the one person on death row in the state, namely Michael Addison who was sentenced to death for the 2006 killing of a Manchester police officer.  But I am pretty sure no state in the modern era has yet to execute a previously condemned person even after a "prospective only" repeal of the death penalty, so Michael Addison is surely among those celebrating this capital repeal.

Prior related posts:

May 30, 2019 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Bureau of Justice Statistics releases "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)"

The Bureau of Justice Statistics has this new press release providing highlights of this big new report titled "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)." Here are excerpts from the press release:

State prisoners released after serving time for rape or sexual assault were more than three times as likely as other released prisoners to be re-arrested for rape or sexual assault during the 9 years following their release, the Bureau of Justice Statistics announced today.  Released sex offenders represented 5% of prisoners released in 2005 and 16% of post-release arrests for rape or sexual assault during the 9-year follow-up period.

The BJS study tracked a representative sample of prisoners released in 2005 in the 30 states that were responsible for 77% of all state prisoners released nationwide and examined their arrests through 2014.  An estimated 7.7% of released sex offenders were arrested for rape or sexual assault during the 9-year follow up period, versus 2.3% of other released prisoners.

While rape and sexual assault offenders were more likely than other released prisoners to be arrested for rape or sexual assault, they were less likely than other released prisoners to be arrested for other crimes. About two-thirds (67%) of released sex offenders were arrested at least once for any type of crime during the 9 years following their release, compared to about five-sixths (84%) of other released prisoners.  Almost all prisoners who were re-arrested (96% of released sex offenders and 99% of all released offenders) were arrested for an offense other than a probation or parole violation.

This is BJS’s first recidivism study on sex offenders with a 9-year follow-up period. Fewer than half of released sex offenders were arrested for any crime within the first 3 years of release, while more than two-thirds were arrested within 9 years.  About 3 in 10 released sex offenders were arrested during their first year after release.  About 1 in 5 were arrested during their fifth year after release, and nearly 1 in 6 were arrested during their ninth year....

Overall, half of sex offenders released from prison had a subsequent arrest that led to a conviction.  However, sex offenders were less likely than all released prisoners to have a new arrest resulting in a conviction.  Within 3 years of release, 28% of persons released after serving a sentence for rape or sexual assault had an arrest that led to a conviction, compared to 49% of all released prisoners. At the end of the 9-year follow-up, 50% of sex offenders and 69% of all released prisoners had a new arrest that led to a conviction.

Sex offenders were more likely than other released prisoners to receive longer sentences and to be granted unconditional releases from prison.  The median sentence length for sex offenders was 60 months versus 36 months for all state prisoners released in 30 states in 2005.  About 32% of sex offenders were granted an unconditional release and not placed on parole, probation or some other form of community supervision. About 26% of all released prisoners were granted an unconditional release.

BJS also has created this one-page summary of the report.  In short form, this report details that sex offenders released from state prison in 2005 were less likely to be arrested for any offense than other released prisoners, but they were more likely to be arrested for a sex offense than other released prisoners.  And, as I have said before based other data from this BJS set, recidivism rates for everyone released from state prison in 2005 have been depressingly high.  It is worth emphasizing, though, that these data are focused on prisoners released back in 2005, a time when there was relatively little interest in prison rehabilitation programming or in aiding prisoner reentry.  I am hopeful that recent state reforms on these fronts might be now producing lower recidivism numbers, but only time will tell.

May 30, 2019 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, May 29, 2019

New opportunities to work on criminal justice reform at The Justice Collaborative

Earlier today, I received an email from Chris Geidner highlighting new professional opportunities at The Justice Collaborative.  I figured readers of this blog might be interested in, or know folks who might be interested in, these positions, so I got permission to reprint the heart of the email:

We want more people who care about fixing our criminal legal system to join our team at The Justice Collaborative....

We're looking for communications professionals, journalists, and/or smart strategy folks to apply for these three open positions. These people will play a key role in our work fighting for a criminal justice system that monitors and incarcerates as few people as necessary for as little time as necessary to keep our communities safe.

To get an idea of the focus of our work, check out this blueprint for criminal justice change.

We are very much wanting a diverse group of incredible applicants, so any help you can give circulating this notice to those who might be interested would be appreciated.  [Also, although we have office space in DC, NYC, and Austin, we have people working all over the country, so remote work is the norm for most of us at TJC!]   Apply today and/or encourage your friends and colleagues to do so! 

Work With Us: We are currently seeking applicants for the following open positions:

May 29, 2019 in Who Sentences | Permalink | Comments (0)

"Representative Defendants"

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

Everyone except the defendant in a criminal proceeding somehow represents "the people."  Prosecutors, judges, and juries are all considered public agents.  Defendants in contrast are thought of as parochial, interested in nothing more than saving their own skins.  This broadly shared understanding of criminal court actors was not historically fated nor is it legally accurate today.  The Constitution tasks criminal defendants with significant public responsibility.  They frequently represent the interests of third parties who have no direct stake in defendants' criminal cases.  Defendants vindicate the participatory rights of excluded jurors, they deter unconstitutional searches and seizures that could harm innocent civilians in the future, and they help ensure the transparent and expeditious functioning of the criminal justice system for the public's benefit.

Neither courts nor commentators recognize these representative actions as part of a coherent account of defendants' role in the legal system.  But representative defendants serve some of the same functions that representative plaintiffs do in the civil setting: overcoming information deficits, low-dollar-value harms, and resource scarcity, all of which make it unlikely that individual harm bearers will seek recourse in court.  Courts, commentators, and the public should be clear-eyed about the role defendants play in our legal system. Doing so would help modulate criminal justice policy and enable defense counsel to more effectively challenge the systematic, third-party harms that criminal justice institutions generate.

May 29, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Oklahoma makes retroactive its 2016 defelonization reform initiative

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

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

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

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

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

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

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

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

Tuesday, May 28, 2019

Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death

It has been a full quarter century since Justice Harry Blackmun famously stated in Callins v. Collins, 510 U.S. 1141 (1994), that he would "no longer tinker with the machinery of death."  But in the last 25 years, a whole lot of states have done a whole lot of tinkering with death machinery, and I have been especially well-positioned to observe Ohio's unique machinations.  And this new local article about the latest Buckeye tinkering, headlined "DeWine, prisons have no documents on Ohio’s new execution protocol," has me yet again amazed at what law, policy and practice looks like in this space.  Here are the details:

The Ohio Department of Rehabilitation and Correction has been working for months on Gov. Mike DeWine’s order to revamp Ohio’s execution protocol. But the department says it hasn’t generated a single email or other written communication related to the work.

The governor’s office suggests the lack of such documentation is intentional.  And that has critics accusing the administration of trying to avoid transparency in an endeavor that in the past has been riddled with problems carrying out the death penalty and obtaining the drugs to perform executions. “The execution process across the United States has been plagued by secrecy and a lack of transparency,” said Robert Dunham of the Death Penalty Information Center, a national group that gathers information about how capital punishment is practiced.

In Ohio, problems go at least as far back as 2014, when Dennis McGuire choked and gasped for about 10 minutes before dying after being administered a new, two-drug protocol. That prompted a three-year moratorium as prison officials came up with a three-drug protocol that still used midazolam — which has been used in botched executions in at least four states — as the first in the procedure.

Since 2017, Ohio has conducted four more executions and abandoned a fifth when prison workers couldn’t inject drugs into a man’s veins.  Then, earlier this year, U.S. Magistrate Judge Michael Merz issued a ruling that likened the Ohio protocol to “waterboarding” and said it “would feel as though fire was being poured” into a prisoner’s veins.

In response, DeWine postponed one execution and then three more as he ordered the corrections department to devise a new lethal injection protocol.  But as corrections officials did, they had to contend with accusations that the state was using subterfuge to obtain earlier execution drugs from manufacturers who were adamantly opposed to their use in carrying out the death penalty.

Seeking to get an idea of what drugs the state is thinking of using and how it plans to get them, The Dispatch filed an open records request in April with the corrections department for all of its internal and external communication regarding DeWine’s order and the development of the new protocol.  Hearing nothing, the paper last week asked about the status of the request.  It received a response the same day. “After investigation and review of our agency records, we have determined that we have no responsive records. Thank you for your patience,” spokeswoman Sara French said in an email.

While it might seem implausible that such a weighty matter as devising a new death-penalty protocol could be undertaken by a state agency without a single email or memo being generated, DeWine spokesman Dan Tierney seemed to say that was by design.  “Gov. DeWine agrees that execution protocol is a very sensitive issue, and that sensitivity may not be appropriate for general email or common written correspondence,” Tierney said in an email.  “The governor speaks with Director (Annette) Chambers-Smith regularly, and he will be receiving a full briefing on this issue soon. ″(The Department of Rehabilitation and Correction) remains focused on researching a new protocol using drugs that the state of Ohio can actually obtain.”...

Monica Nieporte, president and executive director of the Ohio News Media Association, said the state should not try to devise something as important as a new lethal injection protocol in secret. “Since it appears that the work done on this issue has largely been done through verbal conversation and, according to DRC, there is no supporting documentation that is public record, it makes it very difficult for journalists or citizens to determine what progress has been made on this topic,” she said in an email. “Hopefully as their research winds down and they are at the point of making recommendations, they will be providing some detailed explanations, including documentation about how they made their conclusions.”

At the risk of bad taste, I am tempted to joke based on the lack of any protocol paper trail that perhaps Ohio officials think it is important to avoid killing trees while they try to figure out a better way to kill people.

A few (of many) prior recent related posts:

May 28, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Notable comments in notable SCOTUS opinions addressing First Amendment retaliatory arrest claims

The Supreme Court handed down three opinions from argued cases this morning, but still has us still "Waiting for Gundy."  The opinion already getting the most attention is a per curiam ruling in an abortion case from Indiana (that was never argued), but criminal justice fans will be most interested in the ruling in Nieves v. Bartlett, No. 17-1174 (S. Ct. May 28, 2019) (available here) concerning whether First Amendment retaliatory arrest claim is precluded by a showing of probable cause.

The somewhat intricate particulars of the case and the opinions in Nieves will likely be of greatest interest to those who closely follow police practices and/or civil rights claims.  But because the case generated a notable voting line up and an array of notable separate opinions, all criminal justice Court-watchers may find the case worth a read.  In particular, Nieves provides still more evidence that Justice Gorsuch does not seem to be a big fan of the modern criminal justice system, as shown by this passage from near the start of his lengthy separate opinion:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively.  In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.  If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

There are a bunch of other interesting passages and flourishes in some other opinions, but for now I will be content to say that all the sparring in Nieves now has me even more excited (if that was possible) to see what the Court does in the biggest criminal cases I am watching, especially Gundy and Haymond.

May 28, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, May 27, 2019

Is Joe Biden really "one of the most progressive federal lawmakers in terms of criminal justice policy"?

In part because there are so many Democratic candidates, I have not yet been following all too closely the various discussions surrounding various candidates' statements and histories on crime and punishment.  But because Joe Biden has apparently emerged as a front-runner, and because he has quite the track-record on these issues, I cannot resist some (still very early) coverage of Uncle Joe's place in this space.  In particular, I find notable this recent USA Today commentary by Prof James Alan Fox, which is headlined "Joe Biden reduced murders, reformed criminal justice policy and made America safer." A line from the piece prompted the question in the title of this post, and here is the context:

[R]ecent allegations that Biden bears responsibility for the nation’s mass incarceration problem is not only inaccurate, but downright insulting to a man who has distinguished himself as one of the most progressive federal lawmakers in terms of criminal justice policy.

The years leading up to the much-discussed 1994 Crime Bill were challenging, to say the least, with violent crime rates soaring to record levels.  From 1990 through 1993, for example, nearly 100,000 Americans were murdered, two-thirds by guns, more than in any other similar time span, before or after.  Something had to be done, and Biden had the political will and skill to translate good ideas into effective policy.

As early as 1990, Biden, as chair of the Senate Judiciary Committee, recognized and responded to the growing crisis by holding hearings on the nation’s homicide epidemic.  In his introductory remarks, he talked of the 3-Ds — deadly weapons, drugs and demographics.

Biden’s observations were spot on.  The surge in homicide at that time was exclusively among teens and young adults, completely gun-related, and linked to the emerging crack cocaine markets in major cities from New York to Los Angeles.  While the subsequent concern for sentencing disparity between crack and powder cocaine was legitimate, it was crack, not powder, that drove the crime surge some three decades ago.

Biden’s approach was clearly more preventative than punitive.  At the 1990 hearing, for example, he called for investing in drug education for youth and drug treatment for addicts.  In contrast, Sen. Alan Spector, the ranking Republican on the Judiciary Committee, argued instead for tougher prosecution and expanding the death penalty.

While it is true that Biden had a major hand in crafting the Crime Bill, his was not the only one, as passage of the massive piece of legislation required bipartisan support and thus much compromise. Reflecting Biden’s influence, the final version of the Crime Bill included over $7 billion for a basket of prevention programs.  However, once Republicans took control of Congress in the 1994 midterms, it became more like a trash basket of prevention.

The Republican “Contract with America” set a new path, shifting the emphasis from early prevention to harsh punishment.  The Contract promised “an anti-crime package including stronger truth-in-sentencing, ‘good faith’ exclusionary rule exemptions, effective death penalty provisions, and cuts in social spending from this summer’s ‘crime’ bill to fund prison construction and additional law enforcement to keep people secure in their neighborhoods and kids safe in their schools.”  It had become a political liability to advocate prevention.

Whatever share of responsibility that Biden may own for the growth in prison populations over the next decade or more, he should be praised for his central role in pushing legislation that saved thousands of lives.  He was instrumental in helping to get the Brady Law through Congress, after which the nation’s rate of gun homicide started its long-term slide.  He was the chief proponent and author of the Violence Against Women Act, an initiative that helped lower the rate of women murdered by their intimate partners by more than 25% in subsequent years.

The streets of American cities are much safer today than a quarter-century ago before wide-ranging changes in federal crime control policy were enacted. Taken together, Joe Biden deserves credit, not criticism, for all that he has done throughout this career to reduce the number of crime victims and for providing assistance to those unfortunate to become one.

This commentary provides an important reminder that crime rates were so very much higher in the 1980s and 1990s, and thus any look back at crime and punishment policy (and crime and punishment politics) has to be attentive to that reality.  But calling Biden "one of the most progressive federal lawmakers in terms of criminal justice policy" still seems a little rich.

UPDATE: Intriguingly, Prez Trump yesterday afternoon and evening tweeted the following:

I doubt Prez Trump reads this blog, so I am not going to assert that these tweets were a direct response to the question in the title of this post.  But I do think it is an interesting and important indication that Prez Trump is inclined to promote his criminal justice reform record in any battles with Joe Biden.  It also perhaps provides an important opportunity for reform advocates to urge Prez Trump and his Administration to keep moving forward with critical follow-ups to the FIRST STEP Act.

May 27, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (4)

Three years after Michigan sex offender law deemed punitive and unconstitutional for retroactive application, law's application and revision still uncertain

This recent local article, (imperfectly) headlined "Michigan lawmakers ordered to revise the Sex Offender Registry Act," highlights persistent challenges in the implementation of the Sixth Circuit's big 2016 ruling in Does v. Snyder finding constitutionally problematic the retroactive application of Michigan's severe sex offender laws.  Here are the details, with links from the original:

A U.S. district court judge is giving Michigan lawmakers 90 days to change the state's sex offender registry law, almost three years after it was first ruled unconstitutional by federal appeals court.   U.S. District Judge Robert H. Cleland issued an order that the law must be changed on Thursday. 

The ruling stems from an August 2016 decision by the U.S. 6th Circuit Court of Appeals in Cincinnati which found that Michigan's Sex Offender Registry Act was unconstitutional.

Under Michigan's law:

  • Offenders have been prohibited from living, working or even standing within 1,000 feet of a school.
  • They must immediately register email address or vehicles, plus report to the police as often as four times a year.
  • The rules currently apply to all offenders on the registry — even if they've gone decades without committing and crimes. 

The appeals court found the law in violation of constitutional protections against increasing penalties for a crime after its commission and adjudication.  The state appealed to the U.S. Supreme Court, which declined to hear the case — effectively upholding the 6th Circuit ruling. 

But the state has kept the law in place. It argued that the rulings only applied to the specific plaintiffs who brought them — because the appeals court decision came in civil cases instead of class-action lawsuits.  In essence, whether or not offenders needed to completely comply with the act depended on if they'd been able to successfully plead for their individual case in court.

The ACLU, the University of Michigan Clinical Law Program and the Oliver Law Group filed a class-action lawsuit last June that asked that the appeals court to apply the ruling to all Michigan registrants....  In a news release, the ACLU of Michigan said research shows sexual violence and the harm it causes are effectively reduced by prevention programs.  “The Legislature now has both the opportunity and the obligation to use evidence-based research to get this right and provide truly effective tools that enable law enforcement to carry out their work," Shelli Weisberg, ACLU Political Director said in a statement.

Sen. Peter J. Lucido (R-Shelby Township), chairman of the Judiciary and Public Safety Committee told the Free Press discussions with the state police, as well as the ACLU of Michigan have been ongoing, and he sees this as an opportunity to take another look at whether or not SORA is doing the job it was intended to do....

Attorney General Dana Nessel echoed these sentiments in a statement shared with the Free Press Friday afternoon.  “For months now many individuals have been offering input into possible revisions to Michigan’s SORA.  That valuable work is now on a timetable.  In my view, these revisions are long overdue and will bring justice to many who have suffered significant burdens imposed by the obligations and requirements of this bloated registration scheme, which is out of touch with practical ramifications, with the needs of law enforcement, and with a more reasoned understanding of recidivism," Nessel said. 

Clicking through to the federal court order reveals that the district judge has not ordered the Michigan legislature to do anything, but rather the on-going implementation litigation has been put on hold for 90 days because the "parties believe that the Michigan Legislature should be given a further opportunity to revise the statute before this Court addresses the Plaintiffs’ request for injunctive relief on the ex post facto claim, or the parties litigate the other claims."  

Some prior related posts:

May 27, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Friday, May 24, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Florida completes execution of killer of 10 women in 1984

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

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

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

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

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

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

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

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

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

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

Thursday, May 23, 2019

"Equal justice depends on properly funding public defenders"

The title of this post is the the headline of this notable new Hill commentary authored by Pamela Metzger. Here are excerpts:

Sen. Kamala Harris (D-Calif.) recently introduced the Equal Defense Act, which would boost resources for public defenders across the country.  It offers a $250 million grant program on top of case limits for public defenders.

A longtime prosecutor, Harris understands that a fully functional and adequately funded public defender’s office is essential to the pursuit of justice and for ensuring safer communities and families.  The promise of Gideon v. Wainwright, the 1963 Supreme Court decision guaranteeing everyone a right to counsel, is meaningless without an adequately staffed office of dedicated attorneys to keep that promise.

Right now, New Orleans faces a public defense crisis.... The Orleans Public Defenders Office (OPD) handles 85 percent of criminal cases and is responsible for thousands of municipal and traffic court cases each year.  Yet OPD receives just one-fifth of the local appropriation provided to the district attorney.  This year, the OPD anticipates a $1.1 million deficit. The chief public defender already is cutting back on hiring outside counsel.  Firings and salary reductions could be next.

In 2012, the OPD laid off attorneys because of a budget shortfall. In 2015 and 2016, budget shortfalls led public defenders to withdraw from cases — including that of a defendant charged with murder who has been waiting in jail for five years to go to trial and has had six different defense lawyers.  His case is still pending.  This is what happens when state and local governments do not adequately fund criminal defense....

Elsewhere, public defense is also funded by criminal and civil fines and fees with no coverage for overhead expenses and a financial disincentive to put in extra time or hire experts....  Sen. Harris is correct that public defenders need equal funding to ensure justice is complete.  In an adversarial system, we cannot expect justice when one side has both hands tied.  We know that public defenders work.  It’s an easy investment to make.

Equal justice depends on adequate, equitable resources for public defenders.  The representation of individuals charged with a crime is a serious matter that concerns everyone — communities, families, courts, prosecutors, judges and law enforcement.

May 23, 2019 in Who Sentences | Permalink | Comments (3)

Making the case, now a quarter century after the 1994 Crime Bill, for the Reverse Mass Incarceration Act

Lauren-Brooke Eisen and Inimai Chettiar, who helped draft of the Reverse Mass Incarceration Act back in 2015 (first discussed here), have this new New York Daily News commentary making the case for this approach to prison reform under the headline "Joe Biden, Cory Booker, the 1994 Crime Bill and the future: How to unwind American mass incarceration."  I recommend the full piece, and here are excerpts:

As the 2020 field of candidates gets more crowded, Democrats have started weaponizing one of the most influential pieces of criminal justice legislation in the last 50 years — the 1994 Crime Bill.  Joe Biden, a key author of the bill when he served in the Senate, has doubled down, while his primary opponents correctly point to how it helped contribute to mass incarceration.

The debate is important, but an exclusive focus on the past underplays a crucial question: Moving forward, how will the country end mass incarceration that decades of federal funding helped create?  And what are presidential candidates’ plans to reverse failed policies?

The size of the U.S. prison system is unparalleled.  If each state were its own country, 23 states would have the highest incarceration rates in the world.  People of color are vastly overrepresented. African Americans make up 13% of the country’s population but almost 40% of the nation’s prisoners.

In response, Sens. Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.), along with Rep. Tony Cárdenas (D-CA), have just reintroduced the Reverse Mass Incarceration Act.  The bill, which they first introduced last Congress, provides financial incentives to states (which house 88% of America’s prison population) to reduce imprisonment rates.  It starts to unwind the web of perverse incentives set in motion by the Crime Bill and other laws.

To receive federal funding awards under the Act, states must reduce the imprisonment rate by 7% every three years and keep crime at current record lows.  States can choose their own path to achieve those goals, since the legislation sets targets instead of dictating policy....

The federal government has a long history of using federal funds to shape the criminal justice landscape.  For example, a bill passed in 1968 — amid concerns over rising crime rates — set up grant programs that allocated money to states to be used for any purpose associated with reducing crime.  Over two years, it authorized $400 million (roughly $2.7 billion in today’s dollars) in grants.  Two decades later, the Anti-Drug Abuse Act of 1986 played a central role in government policy in the War on Drugs by reinstating mandatory minimum sentences for drug possession, establishing $230 million (nearly $500 million today) in grants to fund drug enforcement while not permitting funding of drug prevention programs.

The 1994 Crime Bill extended that trend. It promised $8 billion ($13 billion in today’s dollars) to states if they adopted “truth-in-sentencing” laws, which required incarcerated individuals to serve at least 85 percent of their sentences.  A study by the Urban Institute found that between 1995 and 1999, nine states adopted truth-in-sentencing laws for the first time, and 15 states reported the Crime Bill was a key or partial factor in changing their truth-in-sentencing laws.  By 1999, a total of 42 states had such laws on the books....

Over the past decade, states have taken steps to move away from harsh sentencing laws. And Congress has made reforms to sentencing at the federal level, including the FIRST STEP Act, passed last year.

Certainly, one piece of federal legislation alone will not end mass incarceration, just as the 1994 Crime Bill was not solely responsible for causing it. Innovative changes at the local level must continue....  But the Reverse Mass Incarceration Act is one of the strongest steps the federal government can take to end mass incarceration.  By providing financial incentives to help power important changes at the local level, it’s a national bill that would help set a tone across the country.  It will encourage states to orient criminal justice strategies across the country toward more just and fair outcomes.

A few prior related posts:

May 23, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (7)

Wednesday, May 22, 2019

"The Second Step Act should give white-collar criminals a chance after release"

The title of this post is the headline of this notable recent Washington Examiner commentary authored by Cassie Monaco.  Here are excerpts:

I will also never forget the day I found out that my husband had been charged with a nonviolent criminal offense.  The emotions that I felt and the pain that I had at that very moment are indescribable, not to mention the feelings of utter shock, knowing that your life will never be the same again.  Today, my husband is serving six and a half years at a federal prison in Colorado.

As the wife of an incarcerated individual, I had two choices: Do I indulge in self-pity, or do I channel my energy and emotions into something more productive? I chose the latter. And so I got involved with national advocacy efforts on criminal justice reform, and I created an organization called A Day Closer, with the sole mission of reducing recidivism by keeping families intact while a loved one is incarcerated.

The First Step Act is providing much needed relief and assistance to many of those incarcerated and their families.  It is also restoring dignity back into our very broken criminal justice system.  However, the act still leaves behind a group that oftentimes gets over looked: individuals convicted of white-collar crimes.

I can understand the lack of sympathy out there for many white-collar criminals, but not all of them are bad people.  In addition to admitting their crimes and apologizing to the victims, they are left financially destroyed, with their professional and personal lives ruined forever....

The First Step Act understandably focuses on relief for drug offenders.  But oftentimes, those offenders do not have the burden of restitution once they are out.  The white-collar group, although they are less likely to fall victim to recidivism, will however be saddled with a life sentence in the form of extraordinary restitution.  They will never be completely free, even after time served. This needs to change.

As the national conversation shifts to the Second Step, lawmakers should sponsor and support legislation that provides some relief with regards to restitution amounts. Meanwhile, by executive order, Trump should return the Office of the Pardon Attorney to its former place under the Executive Office of the President.  Finally, Trump should create an independent commission that advises the president on matters related to Executive Clemency.

The goal is simple: give those that have committed white-collar crimes, admitted to their mistakes, and served their time a real chance to start over and rebuild their lives, without being saddled with the burden that excessive restitution creates.

May 22, 2019 in Fines, Restitution and Other Economic Sanctions, FIRST STEP Act and its implementation, Reentry and community supervision, White-collar sentencing | Permalink | Comments (13)

Spotlighting racial divides in perceptions of crime and punishment

Just about every serious study of US criminal justice systems shows a different form of justice applies to black and white Americans.  And John Gramlich at Pew Research Center has this interesting new piece spotlighting many of the different perceptions of justice among black and white Americans.  I recommend the piece in full, and here are excerpts with a sentencing emphasis  (and with links from the original):

Black Americans are far more likely than whites to say the nation’s criminal justice system is racially biased and that its treatment of minorities is a serious national problem.  In a recent Pew Research Center survey, around nine-in-ten black adults (87%) said blacks are generally treated less fairly by the criminal justice system than whites, a view shared by a much smaller majority of white adults (61%).  And in a survey shortly before last year’s midterm elections, 79% of blacks — compared with 32% of whites — said the way racial and ethnic minorities are treated by the criminal justice system is a very big problem in the United States today.

Racial differences in views of the criminal justice system are not limited to the perceived fairness of the system as a whole.  Black and white adults also differ across a range of other criminal justice-related questions asked by the Center in recent years, on subjects ranging from crime and policing to the use of computer algorithms in parole decisions....

A narrow majority of Americans (54%) support the death penalty for people convicted of murder, according to a spring 2018 survey.  But only around a third of blacks (36%) support capital punishment for this crime, compared with nearly six-in-ten whites (59%).  Racial divisions extend to other questions related to the use of capital punishment.  In a 2015 survey, 77% of blacks said minorities are more likely than whites to be sentenced to death for committing similar crimes.  Whites were divided on this question: 46% said minorities are disproportionately sentenced to death, while the same percentage saw no racial disparities.

Blacks were also more likely than whites to say capital punishment is not a crime deterrent (75% vs. 60%) and were less likely to say the death penalty is morally justified (46% vs. 69%).  However, about seven-in-ten in both groups said they saw some risk in putting an innocent person to death (74% of blacks vs. 70% of whites)....

Some states now use criminal risk assessments to assist with parole decisions. These assessments involve collecting data about people who are up for parole, comparing that data with data about other people who have been convicted of crimes, and then assigning inmates a score to help decide whether they should be released from prison or not.  A 2018 survey asked Americans whether they felt the use of criminal risk assessments in parole decisions was an acceptable use of algorithmic decision-making. A 61% majority of black adults said using these assessments is unfair to people in parole hearings, compared with 49% of white adults.

May 22, 2019 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (5)

Tuesday, May 21, 2019

Two notable new publications on how criminal justice contacts impact schooling and employment realities

I just recent came across two new interesting publications from the Institute for Research on Labor and Employment concerning the intersection of criminal justice realities and labor, schooling and employment realities.  Here are titles, links and overview/abstracts from the papers:

"Finding Employment After Contact with the Carceral System" by Lisa McCorkell and Sara Hinkley

High rates of unemployment among the formerly incarcerated serve to extend punishment long after time has been served.  Much of the difficulty in finding a job comes from institutional exclusion, but the search methods jobseekers employ also pose obstacles to their success.  UC Berkeley sociologist Sandra Susan Smith has found that the system-involved are less likely to search for jobs, and those who do use less effective search methods.  Policies that might improve these outcomes include creating resource guides on best practices for employment as well as expanding post-release employment programs.  Expanding expungement, Ban the Box/Fair Chance legislation, and employer hiring incentives can also help overcome institutional barriers to employment for those exiting the carceral system.

"Does Locked Up Mean Locked Out? The Effects of the Anti-Drug Act of 1986 on Black Male Students’ College Enrollment" by Tolani Britton

This paper explores one reason for the educational gaps experienced by Black men.  Using variation in state marijuana possession and distribution laws, this paper examines whether the Anti-Drug Act of 1986, which increased the disproportionate incarceration of Black males, also led to differences in college enrollment rates.  The results suggest that Black males had a 2.2% point decrease in the relative probability of college enrollment after the passage of the Anti-Drug Abuse Act of 1986.  There is some evidence that laws around crack cocaine, and not marijuana, led to this decrease in the probability of enrollment.

May 21, 2019 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (0)

Shouldn't it now constitutional problematic for extreme LWOP sentences to be preserved after legislative changes to three-strikes laws?

The question in the title of this post might be directed to some important federal cases in the wake of the FIRST STEP Act.  But this morning the question comes to mind due to this new AP article discussing state sentencing changes not made retroactive in Washington.  The article is headlined "‘3 strikes’ sentencing reform leaves out Washington inmates," and here are the disconcerting details:

A small group of inmates, disproportionately black, are set to stay in Washington state prisons for life — left out of the latest in a multi-year wave of reforms easing tough-on-crime “three strikes” laws around the U.S.

At least 24 states including Washington passed such laws during the 1990s, embracing tough-on-crime rhetoric. But nearly half have since scaled them back amid concern that habitual but less-violent offenders were being stuck behind bars for life with hardcore felons.

Washington’s 1993 three-strikes law was among the first and stands out as among the nation’s strictest. But lawmakers targeted it for reform this year with legislation removing second-degree robbery — generally defined as a robbery without a deadly weapon or significant injury — from the list of crimes qualifying for cumulative life sentences.

But while the original reform included a retroactive clause, making inmates sentenced under the old law eligible for resentencing, an amendment pushed by a prosecutors’ group cut out retroactivity. Washington governor and Democratic presidential contender Jay Inslee signed the changes into law April 29.

That means about 62 inmates convicted of second-degree robbery will be left serving life sentences, according to state records, even after judges stop “striking out” new offenders convicted of the same crimes. About half are black, despite African Americans making up only 4% of Washington’s population.

Under the original bill, the inmates with a robbery “strike” would have had the opportunity to have their life sentences re-examined by judges — but now they won’t. Supporters of the amendment have said even less-serious robberies can leave emotional scars, and that prosecutors might have set aside more serious charges because they knew second-degree robbery convictions would mean life in prison for those offenders.

But inmates among the 62 described frustration that offenders with similar records may face drastically shorter sentences going forward. “It’s just wrong on its face, to make people rot in prison for the rest of their life on a sentence that doesn’t even exist anymore,” said John Letellier, 67, whose 1999 fast food restaurant robbery earned him his third strike.

The push to take out the reform’s retroactivity clause emerged from the Washington Association of Prosecuting Attorneys, a group that represents prosecutors. Russell Brown, the group’s director, said he reviewed most of the cases listing second-degree robbery as the third strike, and believed that prosecutors in many probably refrained from seeking more serious charges because of the guarantee the charge — known in legal circles as “Rob 2” — would count as a third strike. But he acknowledged that he never confirmed his suspicions with any of the prosecutors who handled the cases....

In Washington, second-degree robbery has one of the lowest seriousness levels of any crime on the three-strikes list, hypothetically encompassing anything from demanding money from a clerk to snatching a purse. At least 11 states including Washington have eased their three strikes laws since 2009, often removing property crimes from “strike” lists or restoring discretion to judges over previously mandatory life sentences.

But lawmakers have also often been reluctant to make the three-strikes reforms retroactive: Out of the 11 only California has included such a clause...

In phone and email interviews, inmates among the 62 in Washington described how the reform raised their hopes — and the amendment dashed them. Among them is Devon Laird, age 54 and serving life on a robbery third strike. Convicted of snatching a wallet from an elderly man outside a drugstore in 2007, Laird’s court records include convictions for violent crimes in his early 20s, but also testimony portraying him as attempting to escape a past that included being stabbed at 14 and shot twice before age 21. “When they said it wasn’t retroactive, it really set in on me that, man, I got life,” said Laird.

Cheryl Lidel, 60, is also serving life for a 2010 robbery after being convicted of other robberies and theft. She described her crimes as driven by substance abuse that began shortly after she was sexually assaulted as a young girl. In charging documents for her third-strike robbery, prosecutors said Lidel was going through heroin withdrawal when she robbed a Subway blocks from a police station, sticking her hand in her pocket to imitate a gun. She then asked a taxi to take her to an area known for drug dealing. “The first time I came here I was 23 years old, and in March of this year I turned 60,” Lidel said.

While it’s hard to say exactly how much time any of the 62 would have faced without their robbery charges counting as strikes, few would have faced life.... According to state guidelines, the maximum for second-degree robbery, given to the highest-level offenders, is less than seven years....

Some of the 62 might not have received shorter sentences because of other serious crimes on their record, including at least eight with early robbery convictions but a final strike for murder. But nearly half the inmates on the list received a third strike only for some form of robbery.

The bill’s sponsor, Democratic Sen. Jeannie Darneille, said before the state’s legislative session ended that she did not want to change her bill with the amendment killing retroactivity but that it would have been at risk of failing without support from law enforcement or prosecutors because lawmakers would have feared being labeled soft on crime.

The particulars of this story are all too familiar, and long-time readers know that I have long argued that the standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  (My full perspectives on "sentence finality" and retroactivity appear in a law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in some prior posts reprinted below).   

Moreover, as the question in the title of this post highlights, I think these issues have constitutional implications when extreme sentences are in play.  Notably, many state courts have ruled that it would be unconstitutional to carry out a death sentence for a person long ago sentenced for murder after a state legislature prospectively abolished the death penalty.  Given that the Supreme Court has in the last decade applied my capital Eighth Amendment precedents to the application of LWOP sentences, it seems reasonable to argue that state courts should find it unconstitutional to not reconsider an extreme LWOP sentence for a person long ago sentenced to LWOP on a basis that a state legislature has prospectively abolished.

(Significantly, and in response to the concerns so often raised by prosecutors in this retroactivity setting, a narrow version of the constitutional claim here might be just that a past LWOP sentence needs to be reexamined, not automatically changed.  Under such an approach, prosecutors would be able to argue against a sentence change by bringing forward evidence that the defendant could and would have gotten an LWOP sentence on grounds other than those changed by the legislature.  But at the very least, I think the constitutional norm should be reexamination of now-changed sentences, rather than their harsh preservation. )

Some (of many) prior posts on sentencing finality:

May 21, 2019 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, May 20, 2019

Guest post on the Fourth Circuit's reaction to district judge's rejection of plea bargains

6a00d83451574769e2022ad3762ba2200c-320wiIn prior posts here and here I noted the quite notable opinions by US District Judge Joseph Goodwin explaining why he was rejecting plea bargaining in fairly routine cases.  Professor Suja A. Thomas, Peer and Sarah Pedersen Professor of Law at the University of Illinois College of Law, who is a leading scholar on juries and has written the leading book on the topic, was kind enough to put together this guest post about the Fourth Circuit's recent opinion in one of these cases:

By rejecting plea bargains, Judge Joseph Goodwin of the Southern District of West Virginia has been challenging the prevalent use of plea-bargaining in the federal courts.  Judge Goodwin began to do so in 2017 in United States v. Walker when he issued an opinion rejecting a plea bargain in a case involving heroin-dealing (discussed here).  He said he would continue to reject plea deals as long as the plea bargain wasn’t in the public’s interest.  True to his word he has rejected pleas in other cases including United States v. Stevenson and United States v. Wilmore.  Late last month in US v. Walker, No. 18-4110 (4th Cir. April 29, 2019), the Fourth Circuit issued its first opinion addressing Judge Goodwin’s rejection of pleas.

The facts of Walker are significant.  The government presented a deal for a plea to a single count of possession with intent to distribute heroin.  It recommended 24 to 30 months. The court rejected the plea deal and ultimately as a result of pleading guilty to three distribution counts plus a jury conviction on a gun count, the defendant received four times as much — 120 months in prison.

In Walker, Judge Goodwin described four considerations in whether a plea bargain agreement should be accepted: “(1) ‘the cultural context surrounding the subject criminal conduct’; (2) ‘the public’s interest in participating in the adjudication of the criminal conduct’; (3) the possibility of ‘community catharsis’ absent the transparency of a jury trial; and (4) whether, in light of the [presentence report], it appeared that the ‘motivation’ for the plea agreement was ‘to advance justice’ or to ‘expediently avoid trial.’” 922 F.3d 239, 245 (4th Cir. 2019).  In rejecting the plea bargain there, the judge discussed how West Virginia had been “deeply wounded by ... heroin and opioid addiction,” explained the public’s significant interest in this issue, described the importance of the jury’s determination of this matter, and concluded that the plea agreement had been improperly motivated by convenience.  Id. at 245-46.

While the Fourth Circuit addressed Judge Goodwin’s rejection of plea bargaining, the opinion is disappointing.  In upholding his decision, it focused on only Judge Goodwin’s analysis of the defendant’s criminal history and violence.  And it suggested that Judge Goodwin’s broader considerations such as the cultural context of the offenses were irrelevant.  Similarly, in concurrence, Judge Niemeyer stated that the court would have abused its discretion if it had rejected plea bargaining based on the government’s frequent use for the reason of convenience. Id. at 254.

The Fourth Circuit missed an opportunity.  It could have addressed some of the problems tagged by Judge Goodwin — that constitutionally-enshrined juries decide few cases and that the courts accept plea bargaining as necessary for efficiency — despite no constitutional backing for this proposition.

With that said, I recognize that Judge Goodwin’s actions resulted in a black defendant being sent to prison for much more time than the prosecution wanted — continuing to contribute to the problem of mass incarceration.  Additionally, a jury had some role but did not decide all counts.  Though one can argue that the Judge’s action in rejecting plea bargains is far from a perfect solution, whether you agree with the Judge or not, he has taken a bold, very courageous step of questioning our continued reliance on the system of plea bargaining.

And I share some views with Judge Goodwin.  I value the role that the jury was to play in the criminal justice system under the Constitution.  Plea coercion, as I like call it, occurs in approximately 97% of federal cases.  Most of the time the defendant is given a false choice — receive a discount for pleading guilty or receive a penalty for going to trial.  The obvious result is the system that we have now.  No one takes a jury trial; the penalty is too great.  In a book and elsewhere, I have argued that this system is unconstitutional.  Historically a penalty was not attached to a jury trial.  A defendant received the same sentence if he pled guilty or if he was convicted before a jury.

The Harvard Law Review summarized and critiqued Judge Goodwin’s opinion in Walker. 131 Harv. L. Rev. 2073 (2018).  Although an interesting analysis including a discussion of the significant impact on the defendant, the authors missed the mark when they simply stated plea bargaining is “a systemic problem that cannot be convincingly addressed by the actions of a single judge.” Id. at 2078.  They did not recognize that systemic change often begins with a single person challenging the status quo.  The judge has already sparked national media coverage and other significant discussions about plea bargaining.

With that said, what will the government do in the future in Judge Goodwin’s courtroom?  It seems like the defendant and the government will get around Judge Goodwin’s rejection of the plea deal by privately agreeing in advance to the plea.  Hopefully, the needed attention to the problems with plea-bargaining will not end there.

Prior related posts:

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

Exciting agenda for "Rewriting the Sentence Summit on Alternatives to Incarceration"

In this post a few weeks ago, I flagged this great event, titled ""Rewriting the Sentence Summit on Alternatives to Incarceration," taking place next month in New York City hosted by Columbia University and The Aleph Institute at Columbia Law School.  In my prior post, I spotlighted the many great speakers scheduled to be at the event (as detailed at this link), and noted that the event website provides this overview

I now see that this link provides the detailed schedule for all the panels, and I think sentencing fans will find interesting and important every one of the planned panels.  Here are just a few panel titles from the detailed agenda to whet appetites (click through to see all the big names under each panel title):

A New Wave of Prosecutorial Thinking: Views of Recently Elected District Attorneys

A Federal Legislative Look: The First Step Act, and the Next Steps

Risk Assessment: A Feature or a Bug? Perspectives on A Complex Debate

Sentencing Second Chances: Addressing Excessive Sentencing With Escape Valves

The Role of Mercy and Dignity in Criminal Justice: From Restoration to Clemency

May 20, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Waiting for Godot ... Gundy

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

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

VLADIMIR: We can't.

ESTRAGON: Why not?

VLADIMIR: We're waiting for Gundy.

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

VLADIMIR: What?

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

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

ESTRAGON: What others?

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

ESTRAGON: What about all the capital cases?

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

ESTRAGON: It should be here by now.

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

ESTRAGON: And if it doesn't come?

VLADIMIR: We'll come back next decision day.

ESTRAGON: And then the decision day after that.

VLADIMIR: Possibly.

ESTRAGON: And so on.

VLADIMIR: The point is—

ESTRAGON: Until Gundy comes.

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

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

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

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

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

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

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

Sunday, May 19, 2019

Spotlighting eagerness to elect state judges as well as prosecutors committed to criminal justice reform

This new Atlantic article, headlined "The Search for Progressive Judges," highlights how activists who have sought to elect a new wave of progressive prosecutors are now turning attention to judicial elections. Here are excerpts:

It used to be unheard of for Philadelphia judges to reject a negotiated sentence in these resentencings — until Larry Krasner, arguably the most progressive prosecutor in the country, took over the city’s district attorney’s office in January 2018 and started delivering on a promise to minimize incarceration.  In response, several Philadelphia judges have shut down his attempts to keep people out of prison or release them earlier.... Recently, some judges reportedly declined to consider an initiative, developed by Krasner, to seek shorter probation sentences.

After watching these developments with growing dismay, Rick Krajewski, an organizer for a leftist political group called Reclaim Philadelphia, convened about 30 Philadelphia activists in January at the offices of a prisoner-advocacy organization to float a radical proposal.  Many of them had been instrumental in getting Krasner elected.  But clearly, electing a progressive prosecutor hadn’t been enough.  This time, Krajewski wanted to persuade them to spearhead a rare grassroots campaign for the typically sleepy judicial race....

Krasner, elected in 2017, came to office during a nationwide wave of reform-minded prosecutors: In Houston, Chicago, Brooklyn, and other left-leaning cities, prosecutors have been winning races on platforms to end mass incarceration.  A prosecutor has tremendous sway when, for example, suggesting bail, negotiating plea agreements, and recommending sanctions for parole and probation violations.  But judges and magistrates have the final say — and their decisions have been thrown into relief in jurisdictions that have elected reformist prosecutors.  “What we are seeing is that the judges are deciding to take it upon themselves to be the obstacle for a progressive district attorney,” says Robert “Saleem” Holbrook, a former juvenile lifer who now works as a policy adviser at Amistad Law Project, a prisoner-rights advocacy organization.

Recently, justice-reform advocates in a couple of other places have also turned their eye to judges.  In Harris County, Texas, which includes Houston, voters swept out the old guard to completely flip all 59 contested seats in civil, criminal, family, juvenile, and probate courts from Republican to Democrat; the new judges are preparing to stop detaining people accused of low-level crimes who aren’t able to post cash bail.  Organizers in Texas are starting to scout for judicial candidates in Bexar County, which includes San Antonio, and in Dallas County, who support scaling back the use of cash bail.

In theory, judges should be impartial arbiters of justice, motivated by the law rather than politics.  Since the birth of America, legal scholars and politicians have debated the best method to create an independent judiciary: Should it be elected, or appointed by other elected officials?  That question has yet to be resolved, and currently each state institutes its own system for choosing local judges.  However, the majority — 87 percent as of 2015 — of state-court judges are elected officials.  “I think that the overwhelming majority of judges are trying to do their jobs in good faith,” says Alicia Bannon, the deputy director for program management of the Democracy Program at New York University’s Brennan Center for Justice, “but those political pressures are real.”

Historically, that pressure has been applied by advocates for a more punitive justice system.  The authors of a 2015 Brennan Center study analyzed television ads for judicial candidates nationwide and found that an increasing number of ads focused on how harshly the candidate would punish bad actors: In 2013 and 2014, a record 56 percent of campaign ads lauded tough-on-crime records or lambasted opponents for being soft.  In the past, advocates on the left have lamented how these political pressures have influenced judges.

Now, the progressive activists in the Philadelphia election, and the ones in Texas, are unapologetically supporting judges whose politics align with their own.  The primary election on May 21, rather than the actual election in the fall, will essentially determine who will win the judgeships, since the city’s electorate votes overwhelmingly for Democrats, leaving Republican candidates with little chance of victory.  The primaries are technically partisan, but only one Republican is running.  “The reality is no matter how you pick judges, they are going to be political,” says Jed Shugerman, a Fordham law professor who wrote The People’s Courts: Pursuing Judicial Independence in America. In today’s political climate, he says, progressive groups can have significant influence in left-leaning cities.

May 19, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Two great new policy briefs from Right on Crime discussing best practices for parole and probation

Marc Levin, who serves as Vice President for Right on Crime, has two great new "Policy Perspective" briefs on parole and probation systems. Below are the titles, links and "Key Points" from the start of both great documents:

Ten Tips for Policymakers for Parole

Key Points

• The criteria for deciding who is paroled should be objective and focused on reducing risks to public safety going forward.

• Parole boards should possess a diverse range of relevant areas of expertise and provide opportunities for meaningful participation by parole candidates and others with an interest in the outcome.

• Parole supervision and reentry should emphasize removing barriers to employment, incentives for performance, quality interactions between parole officers and those they supervise, and avenues for community-based organizations to assist people coming out of prison.

Ten Tips for Policymakers for Improving Probation

Key Points

• Probation can be an alternative or gateway to incarceration.

• Probation should be right-sized to serve only those individuals who require supervision for only the limited time period that their assessment and conduct indicate a continued need for supervision.

• Incentives should drive probation policy, both for agencies and those they supervise.

May 19, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Student SCOTUS preview part four: more vote predicting after oral argument in US v. Haymond

6a00d83451574769e201b7c9134b4d970b-320wiI noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the feds.  The SCOTUSblog page on Haymond has links to all the briefing.

As reported in this prior post, I have a great student, Jim McGibbon, who has been drafting a series of posts on the Haymond case.  Oral argument took place back in February, and Jim was there for all the action.  Following up on his introductory post, and his second post inspired by the briefing in the case, he has now a pair of posts on the Justices' likely votes informed by the argument.  The start of his efforts (covering six likely or possible votes for the defendants) can be found in this post, and here is his analysis of likely votes for the government:

While we anxiously await the written decision in United States v. Haymond, here is an accounting of the Justices that seem most likely to vote for the government as it seeks to defend the constitutionality of the procedures used to revoke Haymond's supervised release under 18 U.S.C. § 3583(k).

Chief Justice Roberts

The Chief Justice may see himself as an umpire, but at oral argument he was a pitcher throwing both the government and the defendant curve balls. He stated to the government that “simply because the jury’s sentence includes [the sentence authorized by 3583(e)] doesn’t mean that everything that follows is necessarily constitutional.”  But he also questioned the defense’s arguments that 3583(k) is unconstitutional because their claims could undermine the workability of the entire statute and the supervised release/revocation system.

Based on his statements at oral argument, it is difficult to predict the Chief Justice's vote.  But the Chief Justice authored a dissent in Alleyne v. United States, a case which held that any fact increasing a mandatory minimum sentence must be found by a jury beyond a reasonable doubt.  The Chief Justice disagreed with the majority’s broad reading of the Sixth Amendment in Alleyne based on his view that a sentencing factor that increases an applicable minimum sentence (but not the maximum) is not an element of the crime that needed to be submitted to a jury beyond a reasonable doubt.  The Chief Justice may similarly resist a broad reading of the Sixth Amendment for Haymond, perhaps deciding a revocation finding under 3583(k) is not part of a “criminal prosecution,” but just part of a postconviction hearing, and thus not within the ambit of proceedings the Framers envisioned for Sixth Amendment protection.

Justice Alito

Justice Alito at oral argument was the MVP for the  government (as Justice Sotomayor was for the defendant).  During oral argument, Justice Alito declared that the remedy proposed by the defendant may “bring down the entire system of supervised release.”  He also expressed his “trouble” with the “whether we should overrule an enormous amount of precedent and wipe out probation and parole or decide this novel question [of whether a reimprisonment term can exceed the period of conditional liberty in a supervised release term].”  Perhaps, Justice Alito thinks the solution in Haymond is to heavily rely on Morrissey v. Brewer, which ruled parole revocation proceedings do not require elaborate procedures, without addressing broader questions about the operation of supervised release and its revocation. 

Notably, Justice Alito's dissent in Alleyne not only admonished the majority’s willingness to eschew stare decisis, but also expressed disapproval with Apprendi v. New Jersey, the landmark case expanding defendants' Fifth and Sixth Amendment procedural rights concerning findings with sentencing impact.  Alleyne and Apprendi are critical cases for Haymond for both his due process and jury trial claims, and Justice Alito seems unlikely to find either kind of claim persuasive.  Justice Alito, whether seen as a textualist or an originalist, clearly resists legal change in the favor of criminal defendants.  

Justice Breyer

Justice Breyer will probably vote for the government, although it is not a foregone conclusion given his history with cases like Apprendi and Alleyne.  Justice Breyer was initially vexed with the procedural rights that the Supreme Court set forth in Apprendi, calling that decision “impractical.”  Back in 2000, he questioned why the majority  blessed a “sentencing system in which judges have discretion to find sentencing-related factors,” but then viewed for constitutional purposes “sentencing statutes” that increased the maximum sentence “differently.”  In Apprendi, Justice Breyer expressed concern with the possibility of “special postverdict sentencing juries” describing them as “not worth their administrative costs,” and a ruling for the defendant in Haymond could encourage the use of such a procedure.  

Thirteen years after Apprendi, however, Justice Breyer pulled a volte-face when providing a key fifth vote in Alleyne for extending the rights set forth in Apprendi.  This may mean that Justice Breyer now sees that extending jury trial rights can be sometimes justified; indeed, at the Haymond oral argument, Justice Breyer called himself a “good follower of Apprendi.”  As with any uncertain Justice, the Haymond case may boil down to whether supervised release is viewed as just a variation on parole.  If Justice Breyer believes that parole is sufficiently similar to supervised release, then Haymond is not entitled to the “full panoply of rights,” according to Morrissey v. Brewer

Prior related posts:

May 19, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, May 18, 2019

"'Balanced Liberty' – Justice Kennedy's Work in Criminal Cases"

The title of this post is the title of this new essay authored by Rory Little and available via SSRN. Here is its abstract:

During his 43 years as a federal appellate judge, Anthony M. Kennedy authored over 350 opinions in cases relevant to criminal law (although establishing a precise number using various electronic databases offers a cautionary tale). Below I offer four general themes that emerge from my review of Justice Kennedy’s written work in criminal cases:

(1) Perhaps surprising to some, when writing for the majority, Justice Kennedy ruled more often for a defense-side view than for the government;

(2) His expansive vision of “liberty,” as expressed in civil cases, was more “balanced” in the criminal context;

(3) His balanced-liberty approach was less defendant-friendly in habeas cases; and

(4) His work was most impactful in (obviously?) death penalty and race-focused cases, as well as plea-bargaining; and he was consistently correct about the doctrine of “willful blindness.”

In conclusion, Justice Kennedy’s 30 years of writings on the U.S. Supreme Court mark him as one of the most influential Justices of our time in shaping criminal law doctrine.

May 18, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)