Wednesday, October 10, 2018

"Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row"

The title of this post is the title of a new report from the Center for Death Penalty Litigation. Here is a summary of the report from this page at the CDPL website:

The death penalty is all but extinct in North Carolina.  Juries have recommended only a single new death sentence in the past four years.  The state hasn’t carried out an execution since 2006.  Yet, North Carolina has the sixth largest death row in the nation, with more than 140 men and women.  It is a relic of another era.

More than 100 of N.C.’s death row prisoners — about three-quarters — were sentenced in the 1990s, under wildly different laws.  During those years, North Carolina juries sent dozens of people a year to death row, more than Texas. The state’s courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.

Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape.  New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases.  A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended.

Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case.  Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era.  The bulk of North Carolina’s death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past.

CDPL’s report, Unequal Justice, finds that out of 142 death row prisoners in North Carolina:

92% (131) were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications, which have been leading causes of wrongful convictions across the country.  The new laws require interrogations and confessions to be recorded in homicide cases and set strict guidelines for eyewitness line-up procedures.

84% (119) were tried before a law granting defendants the right to see all the evidence in the prosecutor’s file — including information that might help reduce their sentence or prove their innocence.

73% (104) were sentenced before laws barring the execution of people with intellectual disabilities.  Despite a promise of relief for these less culpable defendants, disabled prisoners remain on death row.

73% (103) were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending an unprecedented requirement that prosecutors pursue the death penalty in every aggravated first-degree murder.  Before these changes, prosecutors did not have the ability to seek life sentences in these cases and poor people often received a sub-standard defense.

October 10, 2018 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Can Kanye West help jump-start now dormant clemency and criminal justice reform activity in White House?

RTX2UU4M-1024x683The question in this title of this post is prompted by this news as reported at Vox: "Kanye West will meet with Trump at the White House to talk prison reform, violence in Chicago." Here is some context:

West is expected to visit Washington on Thursday to meet with President Trump as well as White House senior adviser Jared Kushner, according to the New York Times. The Times reports that West will meet with Kushner first and will then have lunch with Trump. The meeting was confirmed in a statement by White House press secretary Sarah Huckabee Sanders.

West is expected to discuss a number of topics during his visit, including job opportunities for those released from prison, manufacturing jobs in Chicago, and gang violence. Sanders said West — who grew up in Chicago and recently announced plans to move back into the area — will also discuss “what can be done to reduce violence in Chicago,” days after Trump proposed implementing stop-and-frisk policing tactics in the city.

The Thursday meeting won’t be the first between Trump and West; the rapper previously went to Trump Tower in December 2016 to discuss “multicultural issues.” In May, West’s wife, reality TV star and entrepreneur Kim Kardashian West, met with Trump to discuss prison reform and pardoning Alice Marie Johnson, a 63-year-old black woman serving life in federal prison for a first-time drug offense. Trump commuted Johnson’s sentence, and in the months since, Kardashian West has returned to the White House to continue to lobby for prison reform.

Kanye West has become one of the president’s highest-profile celebrity supporters, and he has favorably tweeted about Trump on numerous occasions. Last month, West delivered a pro-Trump speech after a performance on Saturday Night Live. “So many times that I talk to a white person about this, and they say, ‘How could you support Trump? He’s racist.’ Well, if I was concerned about racism,” West said, “I would have moved out of America a long time ago.”...

The meeting also highlights the continued power of celebrities in the Trump era. While other presidents have often brought celebrities to White House — Barack Obama notably invited rappers including J. Cole and Nicki Minaj to discuss criminal justice reform — these gatherings were also accompanied by policy meetings with experts.

President Trump, meanwhile, has almost exclusively relied on celebrity references from figures like Kardashian West and Sylvester Stallone, as well as input from conservative figures like Ted Cruz and outlets like Fox News, to shape his approach to aspects of the justice system like pardons. Policy meetings on prison reform and sentencing, on the other hand, have been largely left to aides and advisers like Kushner.  The president has also fiercely criticized celebrities who speak out against his policies, most recently telling reporters that he likes Taylor Swift’s music “25 percent less” after her recent endorsement of Democrats running for office in Tennessee.

Not every celebrity invited to the White House has gone. For example, rapper Meek Mill, who experienced a decade-long saga with the criminal justice system, dropped out of a May discussion on prison reform, telling reporters that the event had become focused on him and Trump rather than policy.

Much of this seems to be the result of how much influence celebrities — or at least celebrities with minimal criticism of Trump himself — appear to hold in the Trump White House when it comes to matters of criminal justice. A September report from USA Today noted that the Trump administration has taken “an often chaotic, ad hoc approach to clemency.” The report added that the president “has granted pardons to people who haven’t applied for them, bypassed the formal Justice Department review process, and focused his pardon power on a handful of politically charged, high-profile cases.” While there have been efforts to create a more disciplined process, it is unclear if the president would respond positively to such a development.

UPDATE: A helpful reader made sure I saw this new Washington Examiner article headlined "Trump says he will release more inmates: 'A lot of people' jailed 'for no reason'." The piece reports on Prez Trump continuing to talk up the prospect of coming (mass?) clemency grants:

President Trump said Tuesday he is "actively looking" for more inmates to release from prison with his clemency powers, saying "a lot" of people are jailed for years without good reason.

Trump told reporters in the Oval Office he was happy he released drug convict Alice Johnson from a life sentence in June, and that he intends to do more. "Alice Johnson is such a great person, such a great case. I'd like to find a lot of people like Alice Johnson. And there are a lot of people that are in a situation like that. And we are actively looking for those situations," he said.

Trump said Johnson "is a terrific woman. I've been watching her a lot and what a great spokesman she is for that situation. And that's covering a lot of people. There are a lot of people like that, that will unfortunately be locked up for many, many years, and there's no reason for it."

"We are looking for — we are actively looking for other situations exactly like that," he said.

A few of many recent related posts about recent Trumpian clemency activity:

October 10, 2018 in Clemency and Pardons, Who Sentences | Permalink | Comments (0)

"Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness"

The title of this post is the title of this notable new paper authored by E. Lea Johnston and available via SSRN. Here is its abstract:

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population.  The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws.  The theory identifies untreated mental illness as the origin of individuals’ criminal justice involvement and mental health treatment as the clear solution to breaking their cycle of recidivism.  This article evaluates the three main bodies of evidence offered in support of the criminalization theory: individuals’ movement from psychiatric hospitals to jails and prisons (“transinstitutionalization”), the heightened policing of individuals with serious mental illness, and the science linking mental illness and crime. This evaluation reveals that the criminalization theory — the understanding that animates most current policies aimed at offenders with serious mental illness—largely rests on intuitive assumptions that are often unverified and sometimes false.

A growing body of behavioral sciences literature constructs an alternative account of the relationship between mental illness and crime.  Coined the “normalization theory,” it relies upon decades of research that demonstrate that clinical factors, such as diagnosis and treatment history, are not predictive of criminal activity.  Instead, the same risks and needs that motivate individuals without mental illness also drive those with mental disorders to commit crimes.  These “criminogenic risks” include, among others, substance abuse, employment instability, family problems, and poorly structured leisure time. Behavioral science researchers reject the premise that individuals with serious mental illness are overrepresented in the justice system because these individuals’ illnesses directly lead to criminal behavior. Instead, they theorize that serious mental illnesses fuel the greater accumulation and concentration of typical criminogenic risk factors.  This recognition holds dramatic potential for the redesign of criminal justice programs.  Programs that target the criminal behavior of offenders with mental illness should principally focus on addressing criminogenic risk factors that can be mitigated.  Officials should also address mental health needs, but only to the extent necessary to facilitate a better criminogenic risk profile and fulfill constitutional obligations.  Moreover, correctional experience suggests that institutions should allocate scarce programmatic resources according to offenders’ risk of reoffending and potential to achieve programmatic goals. These insights, which federal agencies are beginning to recognize, hold radical implications for the redesign — and possibly the existence — of jail diversion, mental health courts, specialized probation and parole, and reentry programs for offenders with serious mental illness. 

October 10, 2018 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Tuesday, October 9, 2018

Justice Kavanaugh joins the ACCA fray in his first set of SCOTUS arguments

As noted in this prior post, a new Supreme Court, due to the addition of new Justice Brett Kavanaugh, got started working this morning by hearing two cases concerning the application of the Armed Career Criminal Act.  Via SCOTUSblog, I see the oral argument transcript in Stokeling v. United States is available on at this link and the transcript in United States v. Stitt is at this link.  Helpfully, this additional post from SCOTUSblog provides these highlights:

In Stokeling v. United States, about whether a state robbery offense that includes “as an element” the common-law requirement of overcoming “victim resistance” is categorically a “violent felony” under the ACCA.

This argument has some moments that even young spectators seem to enjoy, such as when Roberts describes having his law clerks try to pull a dollar bill out of his hand while he held tight. (This was in response to an argument in the petitioner’s merits brief that “robbery can … occur where the offender does no more than grab cash from someone’s closed fist, tearing the bill without touching the person.”)

“It tears easily if you go like this,” Roberts says to Brenda Bryn, the lawyer for petitioner Denard Stokeling, motioning as if to tear a bill in half. “But if you’re really tugging on it … it requires a lot of force, more than you might think.”

Justice Sonia Sotomayor asks about whether a “ordinary pinch” can involve sufficient force to break the law. And to demonstrate, she pinches her neighbor on her right, Justice Neil Gorsuch. At that moment, he is lifting his coffee mug for a sip, and his wide-eyed reaction to being pinched suggests a mix of bemusement and mild alarm.

Whenever a justice asks a question, Kavanaugh looks down the bench at his colleague. He sometimes dons his reading glasses, and he jots notes. We cannot see whether he has his trademark Sharpie marker.

At 10:25 a.m., Kavanaugh has his first question, asking Bryn about her arguments relating to a 2010 Supreme Court ACCA decision, Curtis Johnson v. United States. “In Curtis Johnson, you rely heavily on the general statements of the court, but the application of those general statements was to something very specific: Battery and a mere tap on the shoulder,” Kavanaugh says to Bryn. “And all Curtis Johnson seemed to hold was that that was excluded. So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here and why wouldn’t that then encompass the Florida statute, which requires more than, say, a tap on the shoulder?”

In the second argument, for the consolidated cases of United States v. Stitt and United States v. Sims, the question is whether burglary of “a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’” under the ACCA. Kennedy apparently decides that one hour of argument about the ACCA is enough, and he slips out at the break between the two arguments.

The Stitt and Sims argument will lead to questions about cars with mattresses, homeless people living in their cars in New York and Washington, and unoccupied recreational vehicles and campers.

Alito tells Erica Ross, an assistant to the solicitor general arguing that burglary of an unoccupied mobile structure should count as a strike under the ACCA, that the court has “made one royal mess” of its interpretations of the federal statute. Ross says that is something the court may need to think about in “some case,” but “I apologize … for continuing to bring us back to this case.” This simple point really tickles Justice Clarence Thomas for some reason, and he laughs heartily for several seconds.

Kavanaugh asks more questions in this second argument, though he also loses a couple of what I call “faceoffs” — when two justices battle for the floor, continuing to speak until one relents. He defers to Justice Ruth Bader Ginsburg at one point, and to Kagan at another. (Although the rule of thumb is that a junior justice ought to defer to a senior colleague in such situations, that rule is not always observed.)

Kavanaugh will have several extended colloquies, appearing more at ease with each one. Several times, Jeffrey Fisher of Stanford Law School, the court-appointed lawyer for the respondents in the second case, begins his answer by saying, “Well, Justice Kavanaugh, …” It is in those tiny moments that the reality sinks in that Brett Kavanaugh of Maryland is now an associate justice of the Supreme Court of the United States.

October 9, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio

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

I have not previously noted here the notable fear-mongering about Issue 1 that has emerged in recent months focused particularly on its effort to reduce drug possession offenses to misdemeanors and to allow prisoners to earn more time off their prison sentences.  In late August, Ohio Supreme Court Chief Justice Maureen O'Connor wrote a public letter warning of “catastrophic consequences" for Ohio if Issue 1 passes, and last week Gubernatorial candidate Mike DeWine began running a campaign ad involving local sheriffs stating "If you’re not scared [by Issue 1], you should be."  Lots of other judges and prosecutors and law enforcement official have used similar language their advocacy against Issue 1.

But, perhaps signalling just how strong the public supports significant drug sentencing and prison reform, the first big public poll on Issue 1 was released today and it shows the initiative with a nearly 18 point lead.  Here is a basic report on this poll:  

A criminal justice reform question on the Ohio statewide ballot has support from nearly 48 percent of likely voters while 30.5 percent oppose it and 21.7 percent aren’t sure how they’ll vote on the matter, according to a new poll released Tuesday by Baldwin Wallace University Community Research Institute....

The Baldwin Wallace poll, which was conducted Sept. 28 to Oct. 8, shows DeWine has 39.7 percent, Cordray 37.1 percent, Libertarian Travis Irvine has 4.3 percent, Ohio Green Party candidate Constance Gadell-Newton has 3.4 percent and 15.4 percent of voters are undecided. The poll has a margin of error of plus or minus 3.5 percent.

Notably, the full poll results indicate women voters favor Issue 1 by a 22 point margin (49 to 27) and Democrats favor Issue 1 by a 35 point margin (57 to 22). Assuming this poll numbers are solid, this results suggest to be that Issue 1 is quickly likely to pass if it turns out that women and/or Democrats end up being those especially motivated to show up to vote this November.

 Prior related posts:

UPDATE: Another (smaller) poll was released on October 10 concerning Issue 1, and it showed a much closer contest. This press article provides these details:

Ohio voters support a constitutional amendment to reduce penalties for some drug crimes and make other criminal justice reforms, according to a new poll released on the first day of early voting.

Issue 1 has the support of 43 percent of likely midterm voters surveyed in a Suffolk University/Enquirer poll; 38 percent oppose the measure. Nearly one in five said they had not yet decided how to vote....

The poll surveyed 500 likely Ohio voters by landline and cell phone from Oct. 4 to 8. The poll has a margin of error of 4.4 percentage points....

Issue 1 backers didn’t intend for the measure to become partisan but it has become a dividing line in the race for governor. Democrat Rich Cordray supports it as a way to reduce overcrowded prisons and funnel more money toward drug addiction treatment. His Republican opponent, Ohio Attorney General Mike DeWine, has said Issue 1 will allow drug dealers to avoid prison time and lead to more drug overdose deaths.

Among likely Cordray voters, 53 percent said they also support Issue 1 compared to only 33 percent of DeWine voters. 

October 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Justice Sotomayor issues cert statement discussing "deeply troubling concern" with solitary confinement

The Supreme Court's order list this morning includes no cert grants, but does have an interesting eight-page statement by Justice Sotomayor starting this way:

A punishment need not leave physical scars to be cruel and unusual. See Trop v. Dulles, 356 U.S. 86, 101 (1958).  As far back as 1890, this Court expressed concerns about the mental anguish caused by solitary confinement.  These petitions address one aspect of what a prisoner subjected to solitary confinement may experience: the denial of even a moment in daylight for months or years.  Although I agree with the Court’s decision not to grant certiorari in these cases because of arguments unmade and facts underdeveloped below, I write because the issue raises deeply troubling concern.

UPDATE:  Amy Howe provides this helpful context and summary of this case via this post at SCOTUSblog:

The justices announced today that they will not hear the cases of three Colorado inmates who argue that holding them in solitary confinement, without any access to the outdoors or concerns about security, violates the Constitution’s ban on cruel and unusual punishment.  Two of the inmates, Jonathan Apodaca and Joshua Vigil, didn’t go outdoors for more than 11 months, while the third inmate, Donnie Lowe, didn’t have outdoor recreation for several years.  Prison officials argued that they could not be sued because it was not clearly established -- the standard to overcome the general presumption that government officials are immune from lawsuits -- that their solitary-confinement policy was unconstitutional.  The U.S. Court of Appeals for the 10th Circuit agreed, and the inmates asked the Supreme Court to weigh in.  Justice Stephen Breyer has expressed concern about holding inmates in solitary confinement before: Last year he dissented from the Supreme Court’s announcement that it would not block the execution of a Texas death-row inmate who had been held in solitary confinement for 20 years.  And now-retired Justice Anthony Kennedy suggested in 2015 that extended periods of solitary confinement might violate the Eighth Amendment’s bar on cruel and unusual punishment.  But there were apparently not four votes to take up the issue now.

In an eight-page opinion regarding the court’s decision to deny review, Justice Sonia Sotomayor suggested that the justices might have rejected these cases because the lower courts had not focused on whether Colorado had valid security reasons for its solitary-confinement policy.  But Sotomayor then went on to express “grave misgivings” about solitary confinement, noting that as many as 100,000 inmates (including many who are not on death row) are held in cells alone.  And she pointed out that Donnie Lowe -- who was held in solitary confinement for 11 years while serving time for second-degree burglary and smuggling contraband into prison -- died earlier this year: “While we do not know what caused his death,” she concluded, “we do know that solitary confinement imprints on those that it clutches a wide range of psychological scars.”  She ended her opinion with a plea to courts and prison officials to “remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world, in what comes perilously close to a penal tomb.”

October 9, 2018 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

On eve of execution, Tennessee Supreme Court rejects challenge to state's execution protocol

As reported in this legal news story, "Tennessee’s execution method is not cruel and unusual, the state supreme court ruled Monday, three days before the state’s next execution, because inmates challenging its three-drug lethal injection protocol did not present a viable alternative." Here is more on the ruling and a link to the full opinion:

Twenty-seven death-row inmates claimed the execution protocol violates the Eight Amendment because midazolam, a sedative, does not counteract the burning and suffocating effects of the next two drugs: vecuronium bromide, a paralytic, and potassium chloride to stop the heart.

But in the 4-to-1 ruling Monday, Chief Justice Jeffrey Bivins wrote: “(T)he Plaintiffs failed to carry their burden to establish that Tennessee’s current three-drug lethal injection protocol constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution or article 1, section 16 of the Tennessee Constitution. As a result, we need not address the Plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe pain.”

That burden, Bivins said, included offering a viable alternative, as laid out by the U.S. Supreme Court in Glossip v. Gross (2015), which unsuccessfully challenged Oklahoma’s virtually identical execution protocol.

The Tennessee inmates said at trial that the state could execute them through Tennessee’s other execution protocol: one lethal dose of pentobarbital. Texas and Georgia executed people that way this year.

But the Tennessee Supreme Court disagreed and sided with the state, which said it could not obtain pentobarbital. Many pharmaceutical companies refuse to provide the drug for executions. Bivins also ruled that the court could not “establish new law” by accepting the inmates’ argument that Tennessee secrecy laws involving death penalty protocols affected their ability to argue their case.

Tennessee is scheduled to execute Edmund Zagorski on Thursday, October 11.

October 9, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 8, 2018

Highlighting efforts by some prosecutors to help with expungements

Today's New York Times has this notable new article under the headline "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." Here are excerpts:

[A]lthough law enforcement officials have traditionally opposed [broadened expungement and sealing laws] for an array of reasons — including accountability, a belief that records are vital to public safety, and unstinting support for crime victims — a growing number of them have begun to recognize that criminal records can be enduring obstacles to self-sufficiency and even help trap people in cycles of crime.  Increasingly, they are overtly endorsing mercy through record suppression.

“It’s just a matter of trying to remove obstacles that would make it more difficult for someone to become a productive member of the community,” said Terry Curry, the elected prosecutor in Marion County, which includes Indianapolis and has a population approaching 1 million residents.  “If an individual has stayed out of the criminal justice system, then why should they continue to have that stain forever?”

Though in most places the paperwork burden for expungements has fallen on private lawyers and nonprofit legal clinics, South Florida prosecutors now routinely hold events intended to help people wipe away records of arrests but not convictions.  A district attorney in rural Louisiana leads information sessions about expungements for some felony convictions after a 10-year waiting period; a Vermont prosecutor recently held a record-clearing clinic; and the authorities near Fort Bragg, N.C., attracted about 500 people to an expungement event last year.  Last month, the Brooklyn district attorney promoted “Begin Again” events, where, one advertisement said, people were invited to “clear your record of a misdemeanor marijuana conviction or warrant.”

But there is still a national patchwork of policies and terminologies, from destroying records to sealing them to simply noting that a conviction is effectively vacated. States have imposed various waiting periods, conditions and fees.  Some places have made their processes deliberately simple, while others have complicated approaches that may require legal assistance or court hearings.

The proliferation of new laws, and newfound enthusiasm on the part of some prosecutors, has hardly erased all doubts about the wisdom of suppressing records.  Many prosecutors, especially in rural areas, remain skeptical of any action to show mercy for a person’s past, and some judges engage in measured resistance, holding hearings more to complain about an expungement law than to weigh an application’s merits.  “You have prosecutors and judges who just think it’s wrong: ‘You’ve caused trouble in this county, you’re a wrongdoer and you shouldn’t get a blank slate,’” said Bernice Corley, the executive director of the Indiana Public Defender Council.

But Margaret Love, the executive director of the Collateral Consequences Resource Center and a former United States pardon attorney, said that clemency and expungements are part of the criminal justice process for a reason.  “It ought to be something that prosecutors welcome and use to their advantage to create criminal justice success stories, to advertise criminal justice success stories,” she said.

The nuanced approach in Indiana, where officials hoped that expungements would improve people’s job prospects, is increasingly seen as a model.  Under its so-called Second Chance law, the state has a tiered system in which the offense, and the outcome of the case, determines the waiting period and the exact relief.  Indiana does not destroy records, but can limit access to them and mark them as expunged, and crime victims are permitted to express their views before any decision is made.  “Indiana should be the worst place in America to commit a serious crime and the best place, once you’ve done your time, to get a second chance,” Gov. Mike Pence, now the vice president, said when he signed the records measure into law in 2013.

I am glad to see this topic garner the attention of the Times, though I am a bit disappointed not to see any mention of the particularly notable marijuana-reform developments on this front. Specifically, as I discussed briefly in this recent paper for the Federal Sentencing Reporter, a number of prosecutors in California began taking proactive steps to clear prior marijuana convictions after the state enacted marijuana legalization in 2016.  

October 8, 2018 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history

A new Supreme Court, due to the addition of new Justice Brett Kavanaugh, will get to work on old convictions by considering Tuesday morning the latest possible twists in an ever-twisting jurisprudence concerning the application of the Armed Career Criminal Act.  The latest ACCA fun comes in the form of oral arguments in Stokeling v. United States and United States v. StittHere are the basics on these cases via SCOTUSblog coverage:

Stokeling Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Argument preview: Do "slight force" robberies count for enhancing Armed Career Criminal Act sentences? by Rory Little

Stitt Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Argument preview: What vehicle burglaries, if any, count for enhancing Armed Career Criminal Act sentences? by Rory Little

October 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Highlighting the importance of policies that support families values for the incarcerated

The group R Street has this notable new policy paper titled "The importance of supporting family connections to ensure successful re-entry" authored by Emily Mooney and Nila Bala.  Here is the paper's introduction and conclusion:

As of the latest estimates, approximately two million individuals are currently incarcerated in the United States. Each of these has a family, which broadens the impact of incarceration to millions of family members across the nation. This brings negative repercussions: incarcerated parents are separated from children, interpersonal relationships become strained and financial support disappears.  Furthermore, federal, state and local policies often present barriers to meaningful and continued family connections while incarcerated. Yet, paradoxically, it is during this time that positive family connections are so key.  Indeed, they are critical to successful re-entry after a person’s time is served, as they help encourage individual transformation, mitigate the negative impact of incarceration on children and other loved ones, and support stronger families in general.  This, in turn, makes communities safer.  For these reasons, society can benefit by understanding the importance of these connections and creating policies that help to bolster them for the good of incarcerated individuals, their families and their communities at large....

Behind most incarcerated individuals is a family that is critical to encouraging positive change on the inside and supporting them as they prepare for life on the outside.  Despite this, government policies and family circumstances often impede the ability of families to stay connected during incarceration.  However, changes to government policies, community-based partnerships and the expansion of family-oriented programming can help families overcome these obstacles, with great benefit both to individuals and to society as a whole.

October 8, 2018 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Sunday, October 7, 2018

"Robot Criminals"

I just noticed this recent paper on SSRN that had a title too good not to blog.  The paper is authored by Ying Hu, and here is its abstract:

When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions.  If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability.  The former is not rendered redundant by the latter.  It is possible that no human is sufficiently at fault in causing a robot to commit a particular morally wrongful action.  Additionally, imposing criminal liability on robots might sometimes have significant instrumental value, such as helping to identify culpable individuals and serving as a self-policing device for individuals who interact with robots.  Finally, treating robots that satisfy the above-mentioned conditions as moral agents appears much more plausible if we adopt a less human-centric account of moral agency.

The article does not discuss sentencing until its very end, but this paragraph covers robot punishment possibilities:

Assuming we can punish robots, a new question naturally follows: how should a robot be punished? In this regard, a range of measures might be taken to secure that the robot commit fewer offenses in the future. These include:

  a. physically destroying the robot (the robot equivalent of a “death sentence”);

  b. destroying or re-write the moral algorithms of the robot (the robot equivalent of a “hospital order”);

  c. preventing the robot from being put to use (the robot equivalent of a “prison sentence”); and/or

  d. ordering fines to be paid out of the insurance fund (the robot equivalent of a “fine”).

In addition, the unlawful incident can be used to design a training module to teach other smart robots the correct course of action in that scenario.

October 7, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

You be the Illinois judge: what sentence for Jason Van Dyke after second-degree murder conviction in slaying of Laquan McDonald?

Though somewhat eclipsed by Supreme Court confirmation controversies, a high-profile criminal case culminated with a murder conviction on Friday when a jury found Chicago police Officer Jason Van Dyke guilty Friday of second-degree murder in the 2014 shooting of 17-year-old Laquan McDonald.  This CNN article about the verdict details that Van Dyke was also "found guilty of 16 counts of aggravated battery with a firearm [but] found not guilty of official misconduct."  And this AP piece, headlined "With conviction, Van Dyke likely avoided decades behind bars," highlights some of the sentencing realities that attend this verdict:

Jurors convicted Chicago police Officer Jason Van Dyke for murder and aggravated battery in the slaying Laquan McDonald, the black teenager who was shot 16 times as he walked away carrying a knife on Oct. 20, 2014.  But a legal expert explained that the 40-year-old Van Dyke is likely looking at less than 10 years in prison for killing the teen rather than many decades because jurors opted to convict him of second- and not first-degree murder.

After less than two full days deliberating on three weeks of testimony, jurors returned Friday with 17 guilty verdicts and one acquittal. By far the most serious charge Van Dyke faced originally was first-degree murder.  But Judge Vincent Gaughan told jurors before they started deliberations that they had the option of replacing first-degree murder with second-degree murder.

First-degree required a finding that Van Dyke's use of deadly force wasn't justified — that it was both unnecessary and unreasonable.  But Gaughan said jurors could find that Van Dyke truly believed his life was in jeopardy but that that belief wasn't reasonable.  That's the criteria for second-degree murder.

The jury also found Van Dyke guilty of all 16 counts of aggravated battery with a firearm. Each count corresponded to every bullet Van Dyke shot into McDonald. They acquitted him on the least serious charge, official misconduct....

First-degree murder carries a maximum sentence of life imprisonment. And with enhancements for having used a gun, Van Dyke would have faced a mandatory minimum of 45 years, according to Chicago defense attorney Steve Greenberg, who has defended clients at more than 100 murder trials.  Such a sentence, at Van Dyke's age, could have amounted to life.  The punishment for second-degree murder is no less than four years but no more than 20 years behind bars.

Jurors weren't told anything about the range of punishments for each charge. The judge did tell them that whether one charge might carry a greater or lesser sentence shouldn't factor at all into their decisions.

Each count of aggravated battery carries a mandatory minimum six years and a maximum of 30 years in prison. If Van Dyke had to serve six for each of the 16 counts — and do so one sentence after another - that would add up to 96 years. But Greenberg said judges almost always order defendants to serve such sentences simultaneously.  So, if Van Dyke gets the minimum for each count, he'd serve six years for all the battery convictions.

Another possibility is that the defense will ask, under complicated legal rules, for the judge to merge the crimes for which Van Dyke is convicted for sentencing purposes since they were all tied to a single event, Greenberg said.  That could mean Van Dyke is effectively sentenced only for second-degree murder, with its lower four-year mandatory minimum.

For a man convicted with no previous criminal record, Greenberg said the mandatory minimum is his best guess for a sentence handed down on Van Dyke.  "I would be shocked if he got a day over the four or six years," Greenberg said.

Greenberg said prison conditions for an officer, like Van Dyke, could be rougher than for average convicts. As a white officer convicted of killing a young African-American, prison authorities are likely to conclude he has to be kept away from other prisoners for his own safety. "He will probably be in a cell by himself," Greenberg said.  "It will be very hard time." That may have already started.  At prosecutors' request, Van Dyke's bond was revoked minutes after the verdicts were announced and Judge Gaughan ordered he be held in jail pending sentencing. He stood up from the defense table, then put his arms behind his back as two deputies led him away.

I am not an expert on Illinois sentencing law, but presuming this article has the law corrected, I am struck that the mandatory minimum prison term for second-degree murder in the state is 50% less than mandatory minimum for aggravated battery with a firearm. It is also notable and telling that if the sentencing judge here were permitted and inclined to run the various sentences consecutively rather than concurrently, the defendant here would be facing 100 years in prison as the applicable mandatory minimum.  But if the crimes are found to be "merged" under Illinois law, four years could become the minimum and 20 years the max.

October 7, 2018 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (8)

Saturday, October 6, 2018

"Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"

The title of this post is the title of this new paper authored by Kevin Morrow available via SSRN.  Here is its abstract:

With the declining ability to use lethal injection in executions, states are beginning to take serious consideration of using nitrogen gas in capital punishment.  The article first examines the recent shift away from lethal injection and whether nitrogen hypoxia will survive under current legal jurisprudence.  Next, the article identifies human studies on accidental deaths from nitrogen.  Third, the article examines the recent rise in nitrogen use in suicides and by right to die advocates.  Finally, the article compares the use of nitrogen as an execution method with its use as a euthanizing agent in veterinary medicine.

October 6, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Friday, October 5, 2018

So how might recent events impact Judge Kavanaugh's views on criminal cases?

I have been thinking about the question in the title of this post for the last few weeks.  Today seems like the right time to encourage readers to weigh in given this morning's Senate vote suggesting that we will soon be using the label "Justice" rather than "Judge" in front of Brett Kavanaugh's name.

I have been blogging in various ways ever since Justice Anthony Kennedy announced his retirement (see posts below) that the next Justice could be a critical vote on a lot of criminal justice issues.  The optimist in me wants to believe that the last few weeks have given Judge Kavanaugh an even deeper appreciation for the rights of accused individuals (as noted in post below, he has already expressed concern about sentencing based on acquitted conduct).   This new Crime Report piece, headlined "Would a Resentful Justice Kavanaugh Derail Juvenile Justice Reform?," highlights how one can readily take a negative view on the consequences of the events of recent weeks on coming SCOTUS jurisprudence. Here are excerpts from the Crime Report piece:

The furor over Supreme Court nominee Brett Kavanaugh’s alleged sexual misconduct as a 17-year-old raises questions about how he would rule on key juvenile justice cases if he is confirmed by the Senate, a John Jay College conference was told Thursday. “I bet you [Kavanaugh] is going to be pretty pissed off about how we all tried to derail his nomination with something he did when he was 17,” said Elton Anglada, president of the Juvenile Defender Association of Pennsylvania.

Anglada said that if Kavanaugh were asked to rule in cases that required the Court to re-examine previous rulings establishing that youths under 18 could not be held legally responsible for criminal acts, based on scientific findings about adolescent brain development, he might be tempted to turn his current critics’ words against them....

“These [juvenile justice] cases are going to go back up to the Supreme Court,” Anglada predicted.  “And I think about myself standing in front of Kavanaugh three or four years from now arguing that you shouldn’t revisit Graham, Miller and Roper and my client should be treated differently because he’s a juvenile, and we don’t want to hold a juvenile responsible for his entire life for something he did 35 years ago.  “Say that to Brett Kavanaugh with a straight face and see what answer you get.”

I am not inclined to believe Chief Justice Roberts or Justice Gorsuch is eager to revisit Graham, Miller and Roper, so I am not sure a future Justice Kavanaugh is the only key vote in future Eighth Amendment juvenile justice cases.  But even if there are not five votes to reconsider Graham, Miller and Roper, there are a host of on-going uncertainties about the reach and application of these cases and their possible future expansion.  Again, I kind of want to believe that the events of the last few weeks might make actually make a fair-minded person even more open-minded about the idea that we should not "hold a juvenile responsible for his entire life for something he did 35 years ago," but I may be fooling myself here and elsewhere.

So, dear readers, thoughts on the question in the title of this post (on the juvenile justice issue or any others covered in prior posts linked below)?

A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:

October 5, 2018 in Who Sentences | Permalink | Comments (3)

Thursday, October 4, 2018

En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge

If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here).  Here is part of the start of the majority opinion:

The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague.  As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A).  The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  Id. § 924(c)(3)(B).

This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds.  In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed....  In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague.  Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).

On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague.  As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....

The obvious (and decisive) question, then: Which is it here — categorical or conduct-based?  Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.”  Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”  Hooper v. California, 155 U.S. 648, 657 (1895)....

Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be.  Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense. 

The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:

How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.

I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury.  The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess.  Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes.  Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.

October 4, 2018 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Massive new report on the state of federal criminal defense by Ad Hoc Committee to Review the Criminal Justice Act

Released today is this 300+-page report that should be of interest to anyone who follows the federal criminal justice system.  The report is titled simply 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act, and here are some excerpts from the report's executive summary:

This Committee was tasked to study one of the most fundamental of rights in America, the right of an accused person to legal counsel.  Enshrined in the Constitution under the Sixth Amendment, the right to assistance of counsel is a pillar of our adversarial system of justice and our government....

Chief Justice of the United States John G. Roberts, Jr. tasked this Committee with studying the current quality of public defense in federal courts nationwide provided under the auspices of the Criminal Justice Act — groundbreaking legislation passed in 1963 and expanded in 1970.  That the United States has a fully developed system of public defense at the federal level is evidence of considerable progress in making the Sixth Amendment right to counsel real in practice.... While it has been decades since people charged with crimes — in many cases facing life-altering punishments — faced prosecutor, judge and jury alone, representation by a skilled and devoted advocate with sufficient resources to mount a vigorous defense is far from guaranteed.  Indeed, the quality of defense appears to be highly uneven across the country and from case to case within districts.

Fully 90 percent of defendants in federal court cannot afford to hire their own attorney.  Justice in their cases, and indeed the future course of their lives, depends on the quality of the system that provides lawyers to represent them.  The subject of the Committee’s Report is the examination of that system’s successes and failures, as well as a course of action for improving it....

It was only in studying the federal defender system as a whole and hearing from witnesses across the country that the members of this Committee have come to the unanimous conclusion that despite the best efforts of all parties involved in delivering effective representation under the Sixth Amendment, the current structure for providing public defense results in disparities in the quality of representation that have serious consequences for some defendants.  The Committee hopes its report illuminates the scope and nature of these problems and underlying structural flaws from which they arise — and makes a persuasive case for meaningful change.

October 4, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Third Circuit going en banc to reconsider reach and application of Eighth Amendment to lengthy juvenile term-of-years sentence

In this post back in April, I noted the remarkable Third Circuit panel opinion in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), addressing the application of Eighth Amendment limits on juvenile sentences.  The panel opinion in Grant is technically no longer law as of today thanks to this order by the Third Circuit:

A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered that the government’s petition for rehearing is GRANTED.  The Clerk of this Court shall list the case for rehearing en banc on February 20, 2019.  The opinion and judgment entered April 9, 2018 are hereby vacated.

In short form, defendant Corey Grant in the early 1990 was initially sentenced to LWOP for crimes committed when he was 16-years old.  After Graham and Miller, he was resentenced to a 65-year federal prison term.  The panel opinion found this term unconstitutional and suggested that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform."  The full Third Circuit is apparently no so keen on this approach, and it will thus address this matter anew in the coming year.

October 4, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Cure for America's Opioid Crisis? End the War on Drugs"

The title of this post is the title of this new paper now available via SSRN and authored by Christine Minhee and Steve Calandrillo.  Here is its abstract:

The War on Drugs.  What began as a battle waged on morals has in fact created multiple public health crises, and no recent phenomenon illustrates this in more macabre detail than America’s opioid disaster. Last year alone amassed a higher death toll than the totality of American military casualties in the Vietnam, Iraq, and Afghanistan wars combined.  With this wave of mortalities came an accompanying tidal crash of parens patriae lawsuits filed by states, counties, and cities on the theory that jurisdictions are entitled to recompense for the costs of addiction ostensibly created by Big Pharma.  To those attuned to the failures of the Iron Law of Prohibition, this litigation-fueled blame game functions merely as a Band-Aid over a deeply infected wound.

This Article synthesizes empirical economic impact data to paint a clearer picture of the role that drug prohibition has played in the devastation of American communities, exposes parens patriae litigation as a misguided attempt at retribution rather than deterrence, and calls for the legal and political decriminalization of opiates.  We reveal that America’s fear of decriminalization has at its root the “chemical hook” fallacy — a holdover from Nancy Reagan-era drug policy that has been debunked by far less wealthy countries like Switzerland and Portugal, whose economies have already benefited from discarding the War on Drugs as an irrational and expensive approach to public health.  We argue that the legal and political acceptance of addiction as a public health issue — not the view that addiction is a moral failure to scourge — is the only rational, fiscally responsible option left to a country that badly needs both a prophylactic against future waves of heavy opioid casualties, and restored faith in its own criminal justice system.

October 4, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1

For months I have been flagged here and elsewhere the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has its latest Issue 1 program  taking place today. 

Specifically, at the College of Law at 12noon, is the second of our five public panels under the title Ballot Insights.  (Registration for these panels is available at this link, where you can also find more details on the focus for each of the panels.)  Today's panel is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming, and we have the pleasure of hosting Shon Hopwood as one of the panelists. 

In addition to the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. 

 Prior related posts:

October 4, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, October 3, 2018

Attorney General Jeff Sessions boasts about federal prosecutors now "running up the score against the criminals"

As of September 27, 2018, the federal prison population was reported at 181,726, the lowest level in more than a dozen years.  But this new speech that Attorney General Jeff Sessions delivered today in Utah suggests it may be only a matter of time before this population is heading up again.  Here is an excerpt that leads me to this view:

Forging new relationships with local prosecutors and building on existing relationships will ensure that the most violent offenders are prosecuted in the most appropriate jurisdiction. Our goal is not to fill up the courts or fill up the prisons.  Our goal is to reduce crime, just as President Trump directed us to do.  Our goal is to make every community safer — especially the most vulnerable....

Our prosecutors in Utah are running up the score against the criminals.  They charged 29 percent more defendants in 2017 than they did in 2014.  That includes 64 percent more drug trafficking defendants, 44 percent more violent crime defendants, and 40 percent more illegal re-entries....

In 2018, the Department of Justice prosecuted more violent criminals than in any year on record.  At the same time, we charged the highest number of federal firearm defendants in history.  Fully 41 percent more gun defendants were prosecuted in fiscal year 2017 than they were just five years before.

This past year we broke our own record — and it wasn’t even close.  Over the last fiscal year — October 1 of 2017 up to September 30, 2018 — the Department of Justice brought charges against 15 percent more violent crime defendants than we did in the previous, record-breaking year.  That’s 20 percent more violent crime defendants than we charged in fiscal 2016.

We also charged nearly 20 percent more firearm defendants than we did in 2017 and 30 percent more than we charged in 2016.  We’ve been so tough on illegal guns that we’re actually getting attacked in the press for it — if you can believe that.

Here’s what the critics don’t understand: we are going after violent felons.  We are targeting the most dangerous people in the most violent areas who have guns....

Law enforcement pays dividends — because when we have safer streets, businesses are more likely to invest and create jobs, property values go up, and the people we serve are more likely to flourish.  And so we are going to keep up this pace.  We are going to keep supporting Utah’s state and local police.  We’re going to keep arming them with the tools, resources, and expertise that they need to protect the people of this city and this state.

October 3, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

"Reclassified: State Drug Law Reforms to Reduce Felony Convictions and Increase Second Chances"

The title of this post is the title of this notable new issue brief authored by Brian Elderbroom and Julia Durnan from the Urban Institute.  Here is how it gets started and part of its conclusion:

Recognizing the harm caused by felony convictions and the importance of targeting limited correctional resources more efficiently, state policymakers and voters have made key adjustments to their drug laws in recent years.  Beginning in 2014 with Proposition 47 in California, five states have reclassified all drug possession from a felony to a misdemeanor.  Following the California referendum, legislation in Utah (House Bill 348 in 2015), Connecticut (House Bill 7104 in 2015), and Alaska (Senate Bill 91 in 2016) passed with overwhelming bipartisan majorities, and Oklahoma voters in 2016 reclassified drug possession through a ballot initiative (State Question 780) with nearly 60 percent support.

The reforms that have been passed in recent years share three critical details: convictions for simple drug possession up to the third conviction are classified as misdemeanors, people convicted of drug possession are ineligible for state prison sentences, and these changes apply to virtually all controlled substances.  This brief explores the policy details of reclassification, the potential impact of the reforms, and lessons for other states looking to adopt similar changes to their drug laws....

Reclassifying drug possession from a felony to a misdemeanor can reduce the negative impacts imposed on people and communities by felony convictions, reduce imprisonment of people convicted of drug possession, and redirect limited resources to treatment and prevention without negatively impacting public safety.

The five states that have reclassified drug possession represent a wide range of political beliefs and reclassification has broad bipartisan support across the country.  Governors from the Republican, Democratic, and Independent parties have signed reclassification legislation, and voters approved reclassification at the ballot in states as diverse as California and Oklahoma.  State profiles in the appendix of this report provide more detail on these reforms, including the definition for drug possession, criminal penalties, projected or actual impacts, and reinvestment funding.

But reclassifying drug possession is only one step that states can take to reduce incarceration and reallocate prison spending to less costly and more effective options.  Lessons from the states that have reclassified drug possession, and research on the wide gap between state funding of behavioral health programs and treatment needs, suggest the need for a significant shift in how states deal with substance abuse and approach drug policy.

October 3, 2018 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

A publisher's request for submissions from formerly and currently incarcerated individuals

This webpage provides this basic information about an interesting new project: "The New Press, a public interest book publisher, and the Center for American Progress (CAP), a public policy think tank, request submission of essays for consideration to be included for publication in a book featuring criminal justice reform ideas from formerly and currently incarcerated individuals." This document provides these additional details:

The book has the working title of What We Know and is expected to be edited by Daryl Atkinson and Vivian Nixon, both formerly incarcerated individuals now leading criminal legal reform organizations.  They are also members of the steering committee of the Formerly Incarcerated Convicted People’s Family Movement (FICPFM), a national effort to bring the voices of formerly incarcerated people and their families to the justice reform table.

Essays may be from 2500-5000 words and should be focused on a specific, serious, welldefined suggestion for how to improve a particular aspect of any part of our current system, from police encounters and arrests, to sentencing, incarceration, and re-entry.  Essays should contain elements of the author’s personal story in service of illuminating the suggested reform.  Thoughtful, original ideas that are not already widely in circulation and under discussion are especially welcome.

The top 12-20 essays will be published in the finished book, and the authors will receive $500 each.  Authors of the top 50 essays that were not selected for publication will also receive $50 each.  Co-authored pieces will be considered; additional payment for additional authors will be at the discretion of The New Press and CAP.  The New Press, CAP, and the editors retain full and final authority over the selection of the pieces that are published and/or receive a financial award.

The New Press, CAP, and the editors reserve the right to reject or select essays for any reason allowed under law.  However, essays will be selected based on the following:

I. Policy Recommendation: Applicants should clearly identify a specific issue or problem within the criminal justice system and propose a well-developed, targeted policy solution to address it.

II. Concept: Applicants are encouraged to propose new and progressive ideas for improving the criminal justice system. Policy proposals should be informed by lived experiences with the justice system.

III. Feasibility & Impact: Proposed reforms should be realistic and actionable, with the potential to create meaningful change within the criminal justice system.

IV. Readability: Successful essays will be engaging and combine narrative storytelling from the author’s own experience or knowledge, which illustrates a specific problem, with an original, constructive idea for how the problem might reasonably be remedied.

October 3, 2018 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, October 2, 2018

"Sentencing Reform: Fixing Root Problems"

The title of this post is the title of this new paper now available via SSRN authored by Peter Joy and Rodney Uphoff.  Here is its abstract:

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person.  Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit.  But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty — approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”

Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent?  Put simply, it is because our system punishes so severely those who go to trial and lose.  If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality.  This essay, therefore, focuses on two pernicious features of our current criminal justice system — misuse of plea bargaining and misuse of informants — that explain why so few criminal defendants exercise their right to trial.  We conclude with proposals that might ameliorate those features of our system.

October 2, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always

On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center.  Here is SCOTUSblog's overview via this round-up post:

Today the eight-justice court will tackle two more cases.  The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine.  Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review.  Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime.  This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here.  Tucker Higgins reports on the case for CNBC.

As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence.  The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons.  But I cannot help but note what seems to me to be relatively small stakes in Madison. 

I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state.  In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."

Prior related preview posts:

UPDATE via SCOTUSblog:  The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?" 

October 2, 2018 in Collateral consequences, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)

New "Square One Project" already producing terrific paper on re-imagining criminal justice policy

Square-One-logo-300x300This posting from the Laura and John Arnold Foundation (LJAF) describes a notable new criminal justice reform effort that formally launched a few weeks ago:

The Square One Project, a three-year initiative to rethink justice policies from top to bottom, launched [on September 20] at D.C.’s National Press Club.  Square One brings together a diverse cross-section of academics, policymakers, and community organizers to re-examine traditional responses to crime and envision a new paradigm that can address systemic inequalities such as poverty and racial discrimination.  The Columbia University Justice Lab, John D. and Catherine T. MacArthur Foundation, and Laura and John Arnold Foundation (LJAF) support the project.

Square One seeks to reform a criminal justice system in urgent need of change . Over the last four decades, the number of people in America’s prisons and jails has increased 500 percent.  Prisons are overcrowded, states struggle to fund basic services, and racial inequities inherent in the system have devastated communities. “The project asks: If we set aside the traditional response to crime, and ask first whether other responses might be more effective — if we begin at ‘square one’ — how would criminal justice policy be different?” said Kelli Rhee, President and CEO of LJAF.

The initiative consists of three core components: an executive session focusing on justice policy; roundtables in cities across the country; and a comprehensive community engagement and communications strategy. In the executive session, about 30 leading experts, practitioners, and scholars will meet twice a year to develop and refine proposals. “This format will test and push participants to challenge their own thinking and consider new options,” said Bruce Western, co-director of the Columbia University Justice Lab. “These frank, off-the-record discussions will ultimately yield fresh discourse and new research among academics, policymakers, practitioners, and communities.”

Roundtable sessions will invite broader engagement with community members and a variety of stakeholder groups, tackling a single, complex policy challenge. The first Square One roundtable is scheduled for Oct. 11-13 in Durham, N.C., in partnership with North Carolina Central University.  The discussions, held at the NCCU School of Law, will be live-streamed.

As shown in this page at Square One's website, the executive session part of the project is already producing some very interesting papers by some very interesting people:

Though I am not sure if additional papers will be emerging from the Square One executive sessions or the roundtables, I am sure folks interested in thinking deeply about the present and future of criminal justice policies and practices in the United States should be watching what this project continued to produce.

October 2, 2018 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Monday, October 1, 2018

Previewing SCOTUS consideration of capital competency (and making a case for abolition)

The Supreme Court is scheduled to hear oral argument in Madison v. Alabama on Tuesday morning, and Amy Howe has this argument preview at SCOTUSblog titled "Justices to consider competency in capital cases."  Her post starts this way:

It has been over 33 years since Vernon Madison shot and killed Julius Schulte, a police officer in Mobile, Alabama. Schulte had come to Madison’s house to protect Madison’s former girlfriend and her daughter while they moved out; Schulte was sitting in his car when Madison shot him twice in the back of the head. Madison was convicted of capital murder and sentenced to death, but next week the Supreme Court will hear oral argument on whether it would violate the Constitution to execute Madison when he has no memory of his crime.

Madison, now in his late 60s, has been on death row for over 30 years. During that time, he has had several strokes, which have left him with significant brain damage. Madison suffers from dementia and long-term memory loss; he is also legally blind and can no longer walk without assistance. Since Madison’s stroke, his lawyers tell the Supreme Court, Madison “has repeatedly asked for his mother to come and visit him even though she has been dead for years.”

 Madison also cannot remember any of the details of the crime that put him on death row, including Schulte’s name, the events surrounding the crime, or his trial.  After his execution was scheduled for January of this year, Madison went to state court to challenge his competency to be executed, armed with evidence that a court-appointed expert who had evaluated him, and whose findings had played a key role in earlier rulings that Madison was competent to be executed, was abusing narcotics and was eventually suspended from practicing psychology. The state court would have allowed Madison’s execution to go forward, but the Supreme Court stepped in and — over the objection of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — put the execution on hold while it considered Madison’s request for review.

Interestingly, the National Review has published this notable commentary authored by George Will discussing this case under the headline "America Should Strike Down the Death Penalty."  Here are excerpts:

The mills of justice grind especially slowly regarding capital punishment, which courts have enveloped in labyrinthine legal protocols.  As the mills have ground on, life has ground Madison, 68, down to wreckage.  After multiple serious strokes, he has vascular dementia, an irreversible and progressive degenerative disease. He also is legally blind, his speech is slurred, he has Type 2 diabetes and chronic hypertension, he cannot walk unassisted, he has dead brain tissue, and urinary incontinence. A nd he no longer remembers the crime that put him on death row for most of his adult life. This is why on Tuesday, the Supreme Court will hear oral arguments about the constitutionality of executing him....

The court has said that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.”  For many people, the death penalty for especially heinous crimes satisfies a sense of moral symmetry.  Retribution — society’s cathartic expression of a proportional response to attacks on its norms — is not, however, the only justification offered for capital punishment.  Deterrence is another.  But by now this power is vanishingly small because imposition of the death penalty is so sporadic and glacial.  Because the process of getting from sentencing to execution is so protracted, currently averaging 15 years, senescent persons on the nation’s death rows are going to be problems as long as there is capital punishment....

Sixty years ago, Chief Justice Earl Warren wrote that the Eighth Amendment — particularly the idea of what counts as “cruel” punishments — “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Concerning which, two caveats are apposite: “evolving” is not a synonym for “improving,” and a society can become, as America arguably is becoming, infantilized as it “matures.”  That said, it certainly is true that standards of decency do evolve and that America’s have improved astonishingly since 1958: Think about segregated lunch counters and much else.

Conservatives have their own standards, including this one: The state — government — already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.

UPDATE: I just saw this interesting new OZY piece discussing Madison and related issues under the headline "Why the Battle over Dementia Patients on Death Row? Better Lawyers."

October 1, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)

A bunch of Dimaya GVRs and a hundreds of criminal case cert denials in first SCOTUS order list of October Term 2018

As noted in this post a few weeks ago, law professor Rory Little had this great lengthy post at SCOTUSblog previewing the criminal side of the Supreme Court's docket under the heading "Criminal cases in the October 2018 term: A law professor’s dream."  But as the Court's term officially gets started today, this first SCOTUS order list may seem a bit like a criminal defense lawyer's nightmare because of the extraordinary number of criminal cases in which cert is denied.  Of course, every first order list to start every new Term includes a huge number of denials of cert in all the criminal cases that stack up over the summer break.  But it still is a bit startling to scroll through page after page after page after page of what all appear to be criminal cases in which cert has been denied this morning.

That all said, the SCOTUS order list does include a bunch of GVRs based on the vagueness ruling in Sessions v. Dimaya, most of which appear to involve criminal cases.  I have not been able to follow all the Dimaya fall-out as closely as some true experts, but I suspect that these GVRs are noteworthy not only because they come amidst a sea of cert denials.  Also, there might well be some significant criminal case relists hiding in the certiorari carnage that today's order list reflects.  So criminal justice fans and sentencing fans may still be able to find a SCOTUS silver lining in today's order list.  And, of course, on so many fronts, SCOTUS activity is just getting heated up.

October 1, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly

In my Criminal Law class, we just finished a unit on mens rea and are about to start on homicide laws.  This interesting legal news out of California, headlined "California sets new limits on who can be charged with felony murder," comes at a very convenient time for me. Much more importantly, the law might mean less time in prison for others who got convicted of murder despite having no intent to kill. Here are the basic details:

Gov. Jerry Brown signed legislation on Sunday that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing.  The new law, which goes into effect on Jan. 1, scales back California’s current felony murder rule, which allows defendants to be convicted of first-degree murder if a victim dies during the commission of a felony — even if the defendant did not intend to kill, or did not know a homicide took place.

For defendants facing prosecution for the crime, the new law could mean a shot at less time in prison. Hundreds of inmates serving time will be able to petition the court for a reduced sentence.

The new felony murder law, a bipartisan proposal co-authored by Sen. Nancy Skinner (D-Berkeley) and Sen. Joel Anderson (R-Alpine), is among a series of criminal justice policies enacted under the Brown administration to reduce the numbers of those incarcerated, and give prisoners more chances of early release and services to better prepare them to enter society.  State lawmakers this legislative session also eliminated the use of money bail and reduced punishment for teens under 15.

Defense lawyers and other supporters say the new prosecution standards requiring proof of intent will make the state’s felony murder law similar to how prosecutors charge other crimes. Cases in which an officer was killed will not be subject to the new law, which goes into effect on Jan. 1.  But law enforcement groups opposed the changes, arguing it could lead to more violent people on the streets....

Lawmakers who supported Senate Bill 1437 called the state’s felony murder law archaic and blamed it for disproportionately long sentences imposed on people who did not kill anyone. A 2018 survey that found 72% of women serving a life sentence for felony murder in California did not commit the homicide.  The average age of people charged and sentenced under the statute was 20, according to the report from the Anti-Recidivism Coalition and Restore Justice, a nonprofit that helps offenders reenter society....

On Sunday, Skinner called the law a historic and reasonable fix, bringing California in line with other states such as Arkansas, Kentucky, Hawaii, Massachusetts and Michigan that have narrowed the scope of their felony murder rules.  “California’s murder statute irrationally treated people who did not commit murder the same as those who did,” she said in a statement released Sunday.  “SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”

October 1, 2018 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Sunday, September 30, 2018

Former Illinois Gov Rod Blagojevich makes "plea for prison reform"

The federal prison inmate formerly known as Blago has authored in the Washington Examiner this commentary published under the headline "Rod Blagojevich: My plea for prison reform." Here are excerpts:

I am living the reverse American dream — a bad dream that I share with other inmates at a prison in Colorado where I am currently serving a 14-year sentence.  So what happened?

Carved in stone on the front portico of the U.S. Supreme Court building are the words “Equal Justice Under Law.” But as I sit here in prison, I can’t help but reflect on those four words and feel an overwhelming sense of sadness — not just for me, but for many of my fellow inmates as well.  Here’s why.

It is not equal justice under law when over-sentencing is the rule rather than the exception; when our incarceration rate has increased by more than 500 percent over the last forty years; when an American citizen in good faith trusts the integrity of the courthouse, but to their horror discovers that the game is rigged, and that they are being denied a fair trial before proceedings even begin.

The national debate in Congress on prison and sentencing reform is a conversation that is long overdue.  And as that debate heats up, I’d like to offer a few points of my own and share some things I’ve learned on this painful journey.

As a dishwasher, I start work at 3:30 each morning and earn a total of $8.40 a month.  Did you know that the average wage for an inmate is 23 cents to $1.15 an hour?  In some states, inmates have to work for free.  I never expected to get rich in prison, but am I wrong in viewing this rock-bottom wage as society's way of showing its contempt, telling us that we are all worthless? Is that a good message to send to people we plan to release someday, and whom we'd rather not see offend again?  To people we hope will survive on their own without resorting again to crime?...

Did you know that the average cost to the taxpayer to house each inmate is around $33,000 a year?  In California, taxpayers pay $75,000 a year per inmate. In total, taxpayers are left with a $39 billion invoice each year.  And what’s the government’s solution? Increase our prison population and force hard working Americans to pay even higher taxes.

Did you know that federal prosecutors like to boast about their 97 percent conviction rate?  Yet when you think about it, shouldn't that fact raise an alarm bell to all freedom loving people? Michael Jordan, as great as he was, only made half the shots he attempted.  And knowing what I now know through my experience, this almost perfect success rate is convincing proof that the federal criminal justice system works against the accused.  It is neither a place to expect a fair trial nor is it a place where the promise of justice for all is a promise kept.

Did you know that from 2013 to 2017, the Federal Bureau of Prisons denied 94 percent of the applications from inmates requesting a “compassionate release” due to a terminal illness? And in all of these cases, instead of dying with dignity surrounded by loved ones, terminally ill inmates were left to die alone in prison.  Did you know that if a spouse or child passes away while you are in prison, that you’re not even allowed a furlough to attend the funeral services?  Did you know that when incarcerated women give birth, that they are chained and handcuffed to the hospital bed?

My time in prison has taught me that we need serious reforms.  It’s also taught me that there are a lot of people in here with good hearts.  Instead of creating a system that punishes and dehumanizes inmates, let’s create a system that rehabilitates prisoners and prepares them for life outside of prison.  So here is my message: We can never reach our potential until we as a people rise up and demand that our elected representatives bring about reform; until freedom is safeguarded by a renewed and unwavering commitment to the rule of law; until mercy seasons justice, and fair play governs those who govern us.

September 30, 2018 in Celebrity sentencings, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Noting some worrisome trends in latest official FBI crime data

The folks at Crime & Consequences have two recent posts spotlighting some notable state-specific trends in the latest FBI crime data.  As noted in this post from last week, the FBI reported that violent crimes in the US appeared to "decrease 0.2 percent in 2017 when compared with 2016 data" and that property crimes also "dropped 3.0 percent" in 2017.  But, for fans of sentencing reforms and/or marijuana reform, these two posts at C&C suggest a different tale:

Crime in the United States and California, 2008-2017 by Kent Scheidegger

Excerpt California and United States [had] violent crimes rates falling in tandem prior to Realignment.  That bill took effect in October 2011, so 2011 is mostly a pre-Realignment year.  We would expect effects to show up in later years.  There is a bump in 2012, while the national number is flat, followed by a drop the year after that. Beginning in 2015, California's violent crime rates have been above the national rate to a larger extent than previously.  Overall, the California rate averaged 9% above the national rate before Realignment and 12% above since Proposition 47....

So what degree of proof would we say the simple comparison above establishes that California's soft-on-crime legislation has increased crime?  In terms familiar to lawyers, is it "proof beyond a reasonable doubt"?  Certainly not.  "Preponderance of the evidence."  No, I wouldn't claim that.  "Probable cause"? Arguably.  "Reasonable suspicion"? Certainly.

UCR Data Raises Concerns by Michael Rushford

Excerpt:  Looking at significant recent changes in state criminal justice policy, states which have legalized recreational marijuana and states which have engaged in major sentencing reform to reduce sentences were more likely to have suffered increases in violent crime that those who have not.   

Of the nine states and the District of Columbia which have legalized recreational marijuana six had increases in violent crime.  The increase in Vermont, which legalized recreational marijuana in July, was the highest at 21.4%, with Colorado coming in second at 7%.  Of the legalized marijuana states and DC, six had significant increases in homicide, with Vermont not reporting.  Massachusetts' increase was 27.5%, with Alaska's was 19.5%, followed by Nevada (17.8%), Washington (16%), Colorado (15.3%), and Maine ((14.5%).  All nine legalized marijuana states had increases in rape, with Vermont (28.2%), Maine, (14%), and Nevada (10.5%) in double digits.

Of the eight states which have enacted the most significant reforms to reduce sentences, seven had increased violent crime, and five had increases in homicide.  Three of these states had double digit increases in homicide lead by Arkansas (18.3%), and followed by Washington (16%) and Hawaii (11.5%).  

One of these posts stresses the important point that "correlation does not prove causation." But it is at least worth nothing that some are eager to note certain correlations.

September 30, 2018 in National and State Crime Data | Permalink | Comments (0)

Friday, September 28, 2018

"Incapacitating Criminal Corporations"

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

If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up. Whatever fiction the criminal law entertains about corporate personhood, having an actual “body to kick” — and, by extension, a body to throw into prison — is not one of them. The ambition of this project is not to reject this obvious point, but rather to challenge the less-obvious claim it has come to represent: incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.

In this Article, I argue that incapacitation both can and should serve as a justification for punishing criminal corporations.  Descriptively, I interrogate how rote appeals to the impossibility of corporate imprisonment obscure more pressing, challenging questions about whether and to what extent the criminal law can vindicate an account of incapacitation that extends to corporate persons.  Excavating a richer conceptual framework for incapacitation from our practices of individual punishment, I demonstrate that sanctions we already impose in or just outside the criminal law can be better understood as efforts to incapacitate, rather than to deter or rehabilitate, a criminal corporation. Indeed, reevaluating our understanding of penal incapacitation provides reason to think that we have similar and perhaps stronger reasons for incapacitating corporate persons than we do individuals.

Prescriptively, I leverage this comparative framework to argue that incapacitation should be recognized as a core justification for corporate punishment.  Although rehabilitation has gained traction in past decades as a basis for punishing corporations, incapacitation stands as a more realistic, more administrable, alternative.  This is because a principle of rehabilitation has led to a practice of imposing on corporations intricately designed, but dubiously effective, compliance and internal governance reforms.  Incapacitation, by contrast, lends itself to clear, discrete prohibitions for which the criminal law is better situated to justify, impose, and monitor.

September 28, 2018 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, September 27, 2018

Dare I create an open thread for comments on a (sure-to-be-historic) day of overload?

I am likely not to have any time for blogging over the next couple of days because of this exciting event taking place in my building that my Drug Enforcement and Policy Center is helping to host:

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis" (September 27-28 in Columbus, OH):  This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction. More details about and registration for this event are available here and here.

Fortunately nothing else significant is happening in the legal world today (joking, of course). 

I presume I will get (too many) news alerts on my phone about anything consequential that happens during the latest round of Kavanaugh hearings or during the planned meeting between Prez Trump and Deputy AG Rod Rosenstein.  But, at the risk of creating an extra place for people to say silly things on the internet, I figured it might make sense to create an open thread here for any thoughtful comments on any of the day's sure-to-be-historic events. 

I have not blogged much about the SCOTUS confirmation mess because the story is a bit off-topic and covered aplenty elsewhere.  But perhaps sentencing fans and readers have (respectful) "hot takes" on what we have seen so far or concerning what is in store int he coming hours and days.  If so, feel free to share.

September 27, 2018 in Who Sentences | Permalink | Comments (12)

"'You Miss So Much When You’re Gone': The Lasting Harm of Jailing Mothers Before Trial in Oklahoma"

Download (20)The title of this post is the title of this big new report produced by Human Rights Watch and the ACLU. Here is part of the report's starting summary:

Every day in Oklahoma, women are arrested and incarcerated in local jails waiting — sometimes for weeks, months, a year, or more — for the disposition of their cases.  Most of these women are mothers with minor children.

Drawing from more than 160 interviews with jailed and formerly jailed mothers, substitute caregivers, children, attorneys, service providers, advocates, jail officials, and child welfare employees, this report shows how pretrial detention can snowball into never-ending family separation as mothers navigate court systems and insurmountable financial burdens assessed by courts, jails, and child welfare services....

While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.  This report finds that jailed mothers often feel an added, and unique, pressure to plead guilty so that they can return home to parent their children and resume their lives.  These mothers face difficulties keeping in touch with their children due to restrictive jail visitation policies and costly telephone and video calls.  Some risk losing custody of their children because they are not informed of, or transported to, key custody proceedings.  Once released from jail, they are met with extensive fines, fees, and costs that can impede getting back on their feet and regaining custody of their children.

Women are the fastest growing correctional population nationwide and since the 1990s, Oklahoma has incarcerated more women per capita than any other US state.  Local jails (which typically house people prior to conviction, sentenced to short periods of incarceration, or awaiting transfer to prisons for longer sentences) are a major driver of that growth.  On a single day, the number of women in jails across the US has increased from approximately 8,000 in 1970 to nearly 110,000 in 2014, a 1,275 percent increase, with rural counties accounting for the largest growth rate. Many times more are admitted to jail over the course of a year.

The growth in women’s incarceration also means growth in the number of jailed mothers, which has doubled since 1991.  Nationwide, more than 60 percent of women in prisons and nearly 80 percent of women in jails are mothers with minor children.  A study conducted by the US Bureau of Justice Statistics reported that a majority of incarcerated mothers lived with and were the sole or primary caretaker of minor children prior to their incarceration.

This means that when mothers go to jail or prison, their children are more likely not to have a parent left at home, and can either end up with other relatives or in foster care. One in 14 children in the US, or nearly six million children, have had a parent behind bars, which researchers identify as an adverse childhood experience associated with negative health and development outcomes.  Children of color are disproportionately impacted by parental incarceration, with one in 9 Black children having had an incarcerated parent compared to one in 17 white children.

Jailed mothers are often dealing with a myriad of issues prior to their incarceration, which is why comprehensive support is essential to keep families together, disrupt cycles of incarceration, and to preserve human rights to liberty, due process, equal protection, and family unity.  Losing contact with and custody of their minor children should not be a consequence of arrest and criminal prosecution.

While nationally and in Oklahoma the rate of women’s incarceration is garnering increasing attention, many barriers to achieving necessary reforms remain.

Human Rights Watch and the ACLU urge Oklahoma and other states to require the consideration of a defendant’s caretaker status in bail and sentencing proceedings, expand alternatives to incarceration, facilitate the involvement of incarcerated parents in their children’s lives and proceedings related to child custody, and substantially curb the imposition of fees and costs, which can impede reentry and parent-child reunification.

September 27, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, September 26, 2018

Interesting look at data collection and use in prosecutorial decision-making

The folks at the Urban Institute have this interesting new issue brief titled "Collecting and Using Data for Prosecutorial Decisionmaking: Findings from 2018 National Survey of State Prosecutors’ Offices."  Here is how it starts and concludes:

Prosecutorial data collection, data use, and data-driven decisionmaking are subjects of emerging interest among prosecutors, other criminal justice stakeholders, advocates, and policymakers.  How much data are prosecutors collecting?  How are they using data (if at all), and how has that helped decisionmaking?  What resources and infrastructure do prosecutors use, and what barriers prevent effective uses of data?  In early 2018, the Urban Institute surveyed prosecutors’ offices across the country to seek answers to these questions.  Elected prosecutors and staff members responded from 158 offices representing jurisdictions of all sizes, from sparsely populated rural parts of the country to urban areas with more than a million residents....

Across the country, prosecutors and other criminal justice system stakeholders are grappling with how to best use data to improve outcomes.  The findings presented here demonstrate that many prosecutors’ offices collect and use data throughout the case decisionmaking process, from screening to sentencing.  And, many respondents express interest in and a desire to learn more about data collection and how it can be used to improve prosecutorial practices.  Some offices have implemented innovative, data-driven initiatives to better manage their offices and address system-wide trends such as rising crime rates. Nevertheless, significant barriers stand in the way of broader collection and use of data.  A lack of resources and concerns about data accuracy inhibit offices who want to pursue data collection from doing so.  Further investigation into these barriers, as well as the development of innovative solutions to address them, will help expand the practice of data-driven decisionmaking in interested offices.

The analyses presented here demonstrate a relationship between data collection and use. Offices that want to realize the benefits associated with data use must begin by collecting relevant metrics.  By increasing data collection efforts, and later using that data in decisionmaking, prosecutors’ offices can better identify and respond to trends, demonstrate their successes, and link their decisions to safety and justice goals.

September 26, 2018 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

"Will Florida’s Ex-Felons Finally Regain the Right to Vote?"

The question in the title of this post is the headline of this New York Times magazine article, which is worth reading in full.  Here is a taste:

In 2015, [Neil] Volz happened on a meeting at Florida Gulf Coast University, where a small group of students and community activists were listening to an African-American law-school graduate named Desmond Meade.  He was talking about his years-long crusade to restore voting rights to people who had committed felonies, as he had.  The issue affected Volz, who knew he was barred from voting, as is automatically the case in Florida for anyone with a felony conviction.  Meade was president of the Florida Rights Restoration Coalition, an organization founded by the Florida A.C.L.U. for former felons, or, as he and others prefer to call themselves, “returning citizens.” Meade was in the midst of trying to collect the 766,200 signatures required to place an initiative on the ballot to amend Florida’s Constitution, which denies former felons the right to vote.  Volz stayed after the meeting to talk to Meade.  “We chatted for a long time, and by the end, I wanted to help,” he said.

Across the country, more than six million people have lost the right to vote because of their criminal records. More than 1.5 million of them live in Florida, a higher number than in any other state.  The proposed ballot initiative would automatically restore the right to vote to people with a felony conviction who have completed their sentences.  (The initiative makes two exceptions: no voting rights for people convicted of murder or sex offenses.) At the beginning of this year, with the signatures gathered, the state certified the initiative, called Amendment 4, for the November ballot.

Like any change to Florida’s Constitution, Amendment 4 needs 60 percent of the vote to pass. In the summer of 2017, after Volz spent more than a year volunteering, Meade offered him the paid position of political director.  He hoped that Volz, with his experience as a Republican operative, could help frame the restoration of voting rights in terms that appealed to a wide constituency — Republicans and independents as well as people of color and white liberals. “It’s everybody that can’t vote,” Meade likes to say. “I’m fighting just as hard, if not more, for that guy that wanted to vote for Donald Trump than a guy who wishes to vote for Hillary Clinton or Barack Obama.”

September 26, 2018 in Collateral consequences, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Texas with back-to-back executions scheduled for this week

There has not been an execution in the United States for more than a month, but as detailed this local article, Texas is slated to have its machinery of death in operation twice in the coming days:

The East Texas man convicted of drowning a former housemate and stuffing her body into a barrel of lime is slated to die Wednesday in the first of two consecutive executions in the Lone Star State.

If both punishments go through as planned, it'll be the first time in just over six years that Texas has put to death two prisoners in two nights.

Both men say they're innocent, and the pair of impending executions — first of Troy Clark, then of Daniel Acker — has attracted attention from actress Susan Sarandon, author Mary Buser and renowned death penalty abolitionist Sister Helen Prejean.  "Texas plans to execute Troy Clark on Wednesday but there are some serious problems with his case," Prejean tweeted. "Troy has always maintained his innocence. Someone else made a detailed confession and then completely changed her story in exchange for a reduced sentence."

Clark was sentenced to die in 2000 for killing Christina Muse out of fear the young mother would snitch on him for his drug use, according to court records.  He was convicted in part due to the testimony of his then-girlfriend Tory Bush, who admitted to the crime then fingered Clark — even though there was no physical evidence connecting him to the murder....

In the years since he was sent to death row, Clark has argued that he suffered bad lawyering, didn't get to show evidence rebutting claims he would be a future danger to society, and that his girlfriend's testimony was self-serving and unreliable — especially considering she once confessed to the crime herself....

But the Board of Pardons and Paroles on Monday afternoon denied his request for clemency. As of early Tuesday, he had no pending appeals, his attorneys said.

A day after Clark's scheduled date with death, Acker is slated for execution.  The Sulphur Springs man was sent to death row in 2001 after he was convicted of strangling his girlfriend and pushing her from a moving car — though the state abandoned the strangulation theory after trial.

The Lone Star State has already executed eight men this year, and another nine death dates are on the calendar.

September 26, 2018 in Death Penalty Reforms | Permalink | Comments (0)

Another effective preview of coming SCOTUS review of SORNA delegation in Gundy

I was so very pleased to publish this post last week the original commentary of Wayne Logan concerning Gundy v. United States, the soon-to-be-heard Supreme Court case about the administration of the federal Sex Offender Registration and Notification Act (SORNA).  I now see that SCOTUSblog here has up its Gundy preview authored by Mila Sohoni and titled "Argument preview: Justices face nondelegation challenge to federal sex-offender registration law." I recommend the piece in full, and here is how it gets started and ends:

Over 12 years ago, Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirement that a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? SORNA did not itself specify whether pre-SORNA offenders were required to register. It instead authorized the attorney general of the United States to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment, and “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply” with the registration requirement. 

In subsequent years, defendants charged under SORNA contended that the act and its enforcement scheme violated a panoply of constitutional rules....

How the Supreme Court chooses to decide this case could have potentially sweeping implications on several scores. The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA. In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.

Beyond the law of sex-offender registration, the approach the court takes in Gundy could have repercussions across the law of the administrative state. Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given Ginsburg’s dissenting vote in Reynolds, Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U.S. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the Gundycourt will issue a ruling that revives the nondelegation doctrine from its 80-year slumber. If the justices ultimately do find that SORNA’s delegation does something more than just “sail[] close to the wind,” then we can confidently expect to see a string of challenges attacking the exercise of federal administrative power in areas ranging from environmental law to immigration law to food-and-drug law to the law of tariffs and trade. Cass Sunstein famously wrote that nondelegation doctrine has had only “one good year”; when the justices issue their ruling in Gundy, we will discover whether it will finally have a second.

Prior related post:

September 26, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, September 25, 2018

New Pew issue brief reviews probation and parole in the US

The folks at Pew have this interesting new Issue Brief titled "Probation and Parole Systems Marked by High Stakes, Missed Opportunities: 1 in 55 adults is under community supervision." Here are excerpts from its "Overview":

Incarceration has long dominated the national conversation on criminal justice, because the U.S. prison population skyrocketed between the 1980s and late 2000s.  Starting in 2007, policymakers seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states.  Yet this movement has largely overlooked the largest part of the correctional system: community supervision.

Nationwide, 4.5 million people are on probation or parole—twice the incarcerated population, including those in state and federal prisons and local jails.  The growth and size of the supervised population has undermined the ability of local and state community corrections agencies to carry out their basic responsibilities to provide the best public safety return on investment as well as a measure of accountability.  Although research has identified effective supervision and treatment strategies, the system is too overloaded to implement them, so it sends large numbers of probationers and parolees back to prison for new crimes or for failure to follow the rules.

As part of a collaborative effort to improve the nation’s community corrections system, The Pew Charitable Trusts and the Laura and John Arnold Foundation analyzed the leading research and identified the most pressing problems and some promising solutions.  The available data leave many questions unanswered, but this review reveals key insights and challenges many assumptions about supervision.  Among the findings:

Community corrections is marked by considerable growth and scale, disproportionate representation of men and people of color, and a majority of people who committed nonviolent offenses....

Improvements in supervision offer opportunities to enhance public safety, decrease drug misuse, and reduce incarceration....

Policy changes can reduce correctional control and improve public safety.

These findings demonstrate the need for greater scrutiny of the community corrections system by policymakers and the public.  They also reinforce an emerging consensus among leading practitioners for a fundamental change in the vision and mission of supervision: from punishing failure to promoting success.

September 25, 2018 in Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Bill Cosby gets 3 to 10 years of state imprisonment with no bail pending appeal

As reported in this USA Today article, headlined "Bill Cosby sentenced to three to 10 years in state prison, remanded to custody immediately," a high-profile sentencing ended in a high-profile defendant going directly to prison. Here are some of the details:

A handcuffed Bill Cosby was immediately taken into custody Tuesday after a Montgomery County judge sentenced him to three to 10 years in state prison for the sexual assault of Andrea Constand.

“It is time for justice. Mr. Cosby, this has all circled back to you. The time has come,” Judge Steven O’Neill told the convicted sex offender, denying his request for bail pending appeal and ordering him into immediate custody. He quoted from Constand’s statement to the court, in which she said Cosby took her "beautiful, young spirit and crushed it.”

After the sentencing, Cosby removed his jacket, tie and watch before being taken away in handcuffs, an officer holding his arm. He did not respond to a reporter's request for comment.

Cosby publicist Andrew Wyatt issued a fiery retort outside the courthouse, saying Cosby was denied a fair trial and calling the proceeding "the most racist and sexist trial in the history of the United States." He cast blame on District Attorney Kevin Steele; a "racist and sexist mass media"; and three white female psychologists "who make money off of accusing black men of being sexual predators."...

Before announcing Cosby's prison term, O'Neill ruled that he would be designated a "sexually violent predator," requiring that he register as a sex offender and undergo counseling for the rest of his life after his release from prison. Cosby was fined $25,000 and ordered to pay court costs.

The sentence is in line with the one sought by Steele, who asked O’Neill to impose a prison term of five to 10 years after Cosby's conviction in April on charges he drugged and sexually assaulted Constand in 2004. A defense attorney had asked that Cosby, 81, be spared a prison term, citing his age and frailty....

Cosby’s lawyers asked that he be allowed to remain free on bail, but the judge appeared incredulous over the request and said he would not treat the celebrity any differently from others.

At a post-trial news conference, Steele said justice had finally been served, calling the sentence "fair and significant."

“It’s been a long time coming, but (justice) arrived when a convicted felon named William H. Cosby Jr. left the courtroom in handcuffs, headed off to state prison for his crimes," he said. "It’s been a long wait for our victim, Andrea Constand, as it has for the other women who have endured similar sexual assaults and rapes at the hands of the defendant.”

He said Cosby's fame, fortune and popularity helped him create a deceptive image. “For decades, the defendant has been able to hide his true self and hide his crimes using his fame and fortune. He’s hidden behind a character, Dr. Cliff Huxtable (of "The Cosby Show"). It was a seminal character on TV and so was the family, but it was fiction," Steele said. "Now, finally, Bill Cosby has been unmasked, and we have seen the real man as he is headed off to prison."

Prior related posts:

September 25, 2018 in Celebrity sentencings, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (7)

"Safe Injection Sites and the Federal 'Crack House' Statute"

Alex Kreit, who I am lucky to have time to hang out with this semester as he serves as the first Visiting Professor at The Ohio State University's new Drug Enforcement and Policy Center, has this new paper now posted on SSRN that has the same title as the title of this post.  Here its abstract:

Safe injection sites have become the next battlefield in the conflict between state and federal drug laws.  A safe injection site is a place where injection drug users can self-administer drugs in a controlled environment under medical supervision.  They have been operating in other countries, including Canada, for decades and a wealth of evidence suggests that they can help to reduce overdose deaths.  To date, however, no U.S. city or state has sanctioned a safe injection site.  Until recently, safe injection sites were politically untenable, seen as a form of surrender in the war on drugs.  This dynamic has changed over the past few years as prominent politicians from both parties have called for an end to the drug war and the opioid epidemic has grown increasingly dire.

Efforts to start a safe injection site are currently underway in at least 13 cities and states.  Four cities — New York, Philadelphia, San Francisco, and Seattle — have gone so far as to announce plans to open an injection site.  There is just one small problem.  They appear to violate the federal “crack house” statute, which makes it a crime to maintain a drug involved premises.  The Department of Justice has not yet taken a formal position on safe injection sites.  But in a New York Times editorial, Deputy Attorney General Rod Rosenstein threatened that “cities and states should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action.”

Surprisingly, this looming conflict has gone almost entirely overlooked by legal academics.  Meanwhile, the public debate has assumed that the status of safe injection sites under federal law is clear.  In this article, I argue that assumption is wrong.  Despite the crack house statute, an obscure provision of the federal Controlled Substances Act (CSA) might allow states and localities to establish government-run safe injection sites.  Buried in the CSA is a statute that immunizes state and local officials who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.”  This provision was almost surely intended to protect state and local police officers who possess and distribute drugs in connection with undercover operations.  But, I argue, the text of the immunity provision and the little caselaw that exists interpreting it suggests it could shield government-run safe injection sites from federal interference.

September 25, 2018 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, September 24, 2018

The latest controversy over a lenient sentence involving sexual assault comes from Alaska

This lengthy new Washington Post article provides a detailed review of a lenient Alaska sentencing causing a stir.  The article is headlined "A man accused of kidnapping and masturbating on a woman got a ‘pass.’ Now people want the judge and prosecutor out." Here are excerpts:

Hours after Elizabeth Williams learned last week that Justin Schneider wouldn’t spend a day in jail, she turned to Facebook to channel her outrage. 

The Anchorage social worker didn’t know Schneider, 34, before he was arrested in August 2017 after police said he offered a woman a ride from a gas station, stopped on the side of a road and asked her to step out under the pretense of loading items into the car, then choked her until she lost consciousness and masturbated on her.  Nor did Williams know the victim in the case, identified only as a 25-year-old Native woman who called police after the assault.

What she was familiar with was how the case ended: Schneider pleaded guilty to one count of second-degree felony assault in exchange for the dismissal of his other assault, kidnapping and harassment charges. He was sentenced Wednesday to two years in prison, the maximum for that charge, with one year suspended.

However, Schneider was given credit for a year under house arrest, meaning he would not serve additional time in prison. He will instead be required to continue wearing an ankle monitor and participate in a treatment program. “I was just absolutely appalled,” she told The Washington Post.

Soon afterward, Williams learned that Alaska voters were slated to decide whether the judge in the case should be retained on the Anchorage Superior Court in the November elections. And so, Thursday morning, Williams started a Facebook page: “NO retention for Judge Michael Corey,” she named it....

Many in the group also directed their anger at Anchorage Assistant District Attorney Andrew Grannik, the prosecutor in the case, who said he had made the plea deal because Schneider had no prior criminal record and seemed amenable to rehabilitation, according to the Alaska Star.

Grannik said in court that he had “reasonable expectations” that Schneider would not offend again. “But I would like the gentleman to be on notice that that is his one pass. It’s not really a pass, but given the conduct, one might consider that it is,” Grannik said then.

On social media, people seized on the “one pass” comment and demanded that Grannik be given the boot along with the judge.

Meanwhile, Alaska state officials have acknowledged the outrage but said that, while Schneider’s conduct was “very disturbing,” Corey and Grannik were constrained by sentencing laws. “Both the governor and the attorney general think what occurred in this case was unacceptable in terms of the current state of the law,” said Cori Mills, a senior assistant attorney general in the Alaska Department of Law. “The law needs to be changed.”

Under Alaska statute, the definition of sexual contact encompasses only direct physical contact with genitals, buttocks, female breasts or the anus — not semen.  In other words, despite the accusation that Schneider ejaculated on the woman, he could be charged only with harassment in the first degree, which is not a sex offense, according to state Deputy Attorney General Rob Henderson.

He reiterated what the Alaska Criminal Division director stated Friday, in the face of strong backlash over the sentence: State officials had feared that the kidnapping charge, the most serious of the counts, could not have been proved beyond a reasonable doubt if the case had gone to trial because Schneider’s victim had willingly entered his vehicle.

Given that, Henderson said, the prosecution would have been left to pursue lesser charges that, even if they had resulted in convictions, would not have forced Schneider to enter sex offender treatment. “Because the state realized there was a need for sex offender treatment, the only way to obtain that requirement was to get him to agree to it" in a plea deal, Henderson said. “When you have sex offender treatment, you have to have some type of leverage or incentive to compel the person to complete the treatment.”...

In the wake of the case, Alaska Gov. Bill Walker (I) said he planned to propose legislation that would make “causing unwanted contact with semen” a sex offense.  If successful, the penalty for a first-time offense would carry jail time of two to 12 years and require registering as a sex offender.  However, the Alaska legislature does not convene until January, so any fix to the loophole would be months away at the earliest.

Williams, who started the Facebook page calling for the judge’s ouster, said she agreed with the proposed loophole fix and understood the sentencing constraints the judge and prosecutor were under.  However, she wished that the judge had sentenced Schneider to some jail time — or that the case had been taken to trial, even if it meant risking that Schneider would be acquitted of all charges...

The Alaska Star reported that Schneider’s victim was not at the hearing and had, according to police, been traumatized “to the point where she couldn’t hardly speak” after the assault. Details about the case were graphic enough that some local news outlets placed editor’s notes at the tops of their stories warning readers.

The victim “said she could not fight him off, he was too heavy and had her down being choked to death,” Anchorage police Detective Brett Sarber wrote in a criminal complaint obtained by KTVA News last year. “[She] said she lost consciousness, thinking she was going to die.”  When she regained consciousness, the man zipped up his pants, gave her a tissue and “told her that he wasn’t really going to kill her, that he needed her to believe she was going to die so that he could be sexually fulfilled,” Sarber wrote in the complaint.

September 24, 2018 in Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

"Extending 'Dignity Takings': Re-Conceptualizing the Damage Caused by Criminal History and Ex-Offender Status

The title of this post is the title of this new paper authored by Jamila Jefferson-Jones now available via SSRN. Here is the abstract:

The consequences of a criminal conviction extend far beyond “time served”: Ex-offenders often face social and civil stigmas and disabilities that continue for the rest of their lives.  These collateral consequences cause real harm to the reputation, dignity, and livelihood that can be difficult to quantify in the strictly economic analysis used in traditional constitutional takings analysis.  These collateral consequences are a form of dignity taking which deprive the ex-offender of their status as a full member of society.  Bernadette Atuahene originated the idea of “dignity takings”, eventually settling on a definition that combines a traditional government taking of property with an outcome of dehumanization or infantilization.  Scholars have applied this analysis to a number of cases of tangible property, but have only just begun to expand it into the criminal justice and reputational harm cases.

By applying the framework of dignity takings to the difficulties faced by ex-offenders in their reentry to society, I will demonstrate how we can better express the harms caused by the collateral consequences of conviction.  By doing so, we can focus our attention not on economic damage and restitution, but the restoration of lost dignity and humanity.

September 24, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Details on not yet complete sentencing of Bill Cosby

The sentencing of Bill Cosby following his conviction on three state charges in Pennsylvania got started today, but did not reach a conclusion. This lengthy New York Times article, headlined "Bill Cosby Sentencing: Psychologist Says Threat to Women Remains," reports on what transpired. Here are excerpts: 

In the first of two days of hearings to determine Bill Cosby’s sentence for sexual assault, a psychologist for a state panel testified that Mr. Cosby deserved to be categorized as a “sexually violent predator” because he had a personality disorder that pushed him to have sex with nonconsenting partners.

The finding by the psychologist for Pennsylvania’s Sexual Offenders Assessment Board can be a factor in sentencing and in the conditions imposed on a person found to be a predator, both in prison and afterward.  But the final decision rests with Judge Steven T. O’Neill who is presiding over the hearing that could end Tuesday with one of the world’s best-known entertainers entering a prison cell.

Mr. Cosby’s lawyer, Joseph P. Green, had argued that Mr. Cosby’s age, 81, and legal blindness meant he was no risk, especially since there have been no new allegations of sexual abuse leveled against him since 2004.  “How’s he going to meet these people?” said Mr. Green. “There is no reasonable prospect that an 81-year-old blind man is likely to reoffend.”

But the psychologist, Kristen F. Dudley, said she did not believe the disorder had dissipated with age. “It is possible that he has already met someone who could be a future victim,” she said.  She said that, while Mr. Cosby had declined to meet with her, she was able to draw that conclusion by going through “boxes of documents,” including transcripts from Mr. Cosby’s two trials, one of which ended in April with his conviction on three counts of aggravated indecent assault. Mr. Cosby was convicted of drugging and assaulting Andrea Constand, a former Temple University employee for whom he emerged as a mentor....

Mr. Cosby’s team said its expert witness could not testify until Tuesday, so Judge O’Neill agreed to wait until then to make a decision on the predator determination and Mr. Cosby’s sentence.  If the judge agrees with the board’s psychological assessment, Mr. Cosby would be required to have routine counseling for the rest of his life, and even if not sentenced to prison, he would be required to report monthly to the police.

Mr. Cosby’s legal team had objected to the whole discussion, asserting that the legality of the state’s predator determination process is questionable because, among other things, it does not use the “beyond reasonable” doubt formula for findings in criminal cases.  “The statute is unconstitutional,” said Mr. Green, but the judge found otherwise.

Mr. Cosby had faced a maximum 30-year prison term, 10 years for each of three counts of aggravated indecent assault he was convicted of.  But Judge O’Neill chose on Monday to merge the counts, as allowed when they stem from the same event.  In this case, they originated with an encounter in January 2004 when, Ms. Constand said, Mr. Cosby sexually assaulted her after giving her pills that made her drift in and out of consciousness.

In their remarks, prosecutors asked Judge O’Neill to sentence Mr. Cosby to a five- to 10-year term. “By deterring this type of conduct with a sentence that is appropriate will say that you can no longer get away with this,” the district attorney, Kevin R. Steele, told the court....

Mr. Green argued in favor of house arrest, saying Mr. Cosby is a danger to no one and that the court must be careful not to allow public opinion to affect its decision-making.  “In this case we rely on you to make sure that that public advocacy doesn’t affect the application of the rule of law,” he said, adding later, “It’s your obligation to make sure that the sentencing decision is not affected by all that noise.”

Judge O’Neill will also have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. Those guidelines, which account for any previous criminal record (Mr. Cosby has none), the seriousness of his offense, and mitigating and aggravating factors, suggest a range of about 10 months to four years.  (Sentences in Pennsylvania are given as a range of a minimum and a maximum. Inmates with good behavior may be eligible for parole when they have reached the minimum.)...

Ms. Constand, who now works as a massage therapist in Canada, spoke only briefly as her victim’s impact statement had already been incorporated into the record. “The jury heard me,” she said, “Mr. Cosby heard me and now all I am asking for is justice as the court sees fit.”...  Though dozens of other women have accused Mr. Cosby of drugging and sexually assaulting them, Judge O’Neill rejected a prosecution request to allow any of them to provide their accounts at the hearing.

Mr. Cosby’s defense team chose not to present additional witnesses to discuss, for example, Mr. Cosby’s character or any good works. But in his remarks, Mr. Green emphasized what he called Mr. Cosby’s youth of hardship and racism, his time in the United States Navy and discussed his educational achievements....

Mr. Cosby’s lawyers have filed several motions suggesting that they will file an appeal that challenges the judge’s rulings and even the judge’s personal integrity.  A key question for Tuesday will be whether Mr. Cosby is allowed to remain out on bail while he pursues those appeals, a process that could take years.

His lawyers will argue that he is not a flight risk, and that he is not likely to commit another crime. But if Judge O’Neill were to permit him to stay at home, the judge would surely face bitter criticism from the many female accusers eager for closure this week. “I don’t think the judge will let him out on appeal; he has had his freedom for a long time,” said Barbara Ashcroft, a former prosecutor.

Prior related posts:

September 24, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0)

US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses

6a00d83451574769e201b8d28f7af6970c-320wiVia email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions.  This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage.  Here are excepts from the summary:

This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....

Key Findings

Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.

Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....

The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....

Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.

In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....

In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....

The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....

The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.

Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....

Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group.  In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).

Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).

Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.

September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Official FBI crime data for 2017 reports violent and property crime in decline in United States

Early markers hinted that crime was back to declining in 2017, after violent crime had increases in 2015 and 2016 in the United States.  This official FBI press release provides these basics on the latest official FBI data:

After two consecutive years of increases, the estimated number of violent crimes in the nation decreased 0.2 percent in 2017 when compared with 2016 data, according to FBI figures released today. Property crimes dropped 3.0 percent, marking the 15th consecutive year the collective estimates for these offenses declined.

The 2017 statistics show the estimated rate of violent crime was 382.9 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,362.2 offenses per 100,000 inhabitants. The violent crime rate fell 0.9 percent when compared with the 2016 rate; the property crime rate declined 3.6 percent.

These and additional data are presented in the 2017 edition of the FBI’s annual report Crime in the United States. This publication is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program....

Of the 18,547 city, county, university and college, state, tribal, and federal agencies eligible to participate in the UCR Program, 16,655 agencies submitted data in 2017. A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

  • In 2017, there were an estimated 1,247,321 violent crimes.  The estimated number of robbery offenses decreased 4.0 percent, and the estimated number of murder and nonnegligent manslaughter offenses decreased 0.7 percent when compared with estimates from 2016.  The estimated volume of aggravated assault and rape (revised definition) offenses increased 1.0 percent and 2.5 percent, respectively.
  • Nationwide, there were an estimated 7,694,086 property crimes.  The estimated numbers for two of the three property crimes showed declines when compared with the previous year’s estimates.  Burglaries dropped 7.6 percent, larceny-thefts decreased 2.2 percent, but motor vehicle thefts rose 0.8 percent.
  • Collectively, victims of property crimes (excluding arson) suffered losses estimated at $15.3 billion in 2017.
  • The FBI estimated law enforcement agencies nationwide made 10.6 million arrests, (excluding those for traffic violations) in 2017.
  • The arrest rate for violent crime was 160.7 per 100,000 inhabitants; the arrest rate for property crime was 388.7 per 100,000 inhabitants.
  • By violent crime offense, the arrest rate for murder and nonnegligent manslaughter was 3.8 per 100,000 inhabitants; rape (aggregate total using the revised and legacy definition), 7.2; robbery, 29.3; and aggravated assault, 120.4 per 100,000 inhabitants.
  • Of the property crime offenses, the arrest rate for burglary was 61.7 per 100,000 inhabitants; larceny-theft, 296.0; and motor vehicle theft, 28.2. The arrest rate for arson was 2.8 per 100,000 inhabitants.

As I have said in the past and will say in the future, reports of declining crime rates is something that everyone should celebrate while continuing to consider how we can continue to do better both with crime and punishment.  As reported here last week, data from the Brennan Center suggests we are continuing to do better on crime issues in 2018.  Given that the latest prisoner statistics suggesting continued declining prison populations through 2017 and 2018 — e.g., as of September 20, 2018, the federal prison population was reported at 181,800, down more than 5% from the reported population of 192,170 in 2016 and down almost 20% from the 219,298 federal prisoners reported in 2013 — it seems we may be finding ways to have less reported crimes and less prison punishment. 

September 24, 2018 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

Sunday, September 23, 2018

Two exciting DEPC events this coming week

In separate prior posts here and here, I noted two substantive events scheduled this week involving the new OSU Drug Enforcement and Policy Center (which I help direct).  I am quite excited about both events, the first of which is in DC on Sept 25, the second of which is in Columbus on Sept 27 to 28.  Here are the titles of the events, descriptions, and links to registration pages:

 

"Laboratories of Democracy: Drug Policy In The United States" (September 25 in Washington, DC):

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event are available here and here.  

 

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis" (September 27-28 in Columbus, OH):

This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction.

The country is in the middle of a tragic increase in drug overdose deaths and Ohio is at the epicenter of the overdose crisis. According to new preliminary estimates for 2017 from the Center for Disease Control, the country has suffered a record 72,000 overdose deaths, with Ohio’s rate of overdose deaths increasing by more than 17%.  In 2016, Ohio ranked second in the nation in drug overdose death rates (at 39.1 per 100,000) and third in the nation in total number of deaths (4,329).  Ohio is losing nearly 12 citizens each day to a drug overdose.

Responses to the overdose crisis across the nation and within the state have been mixed.  There has been a renewed emphasis on treatment, expanded access to the overdose antidote naloxone, and the passage of Good Samaritan laws that offer protection to those calling for help during an overdose. Health officials in Ohio are even engaging in serious discussions of previously-taboo harm reduction interventions, such as drug checking strips.  Nonetheless, use of the criminal justice system continues to dominate local, state, and federal responses to increasing rates of opioid use and overdose. Ohio, for instance, charges more people with manslaughter for delivery of a controlled substance resulting in death than any other state except one.  Local and state elected officials have proposed legislation that would increase penalties for fentanyl, create a specific drug-induced homicide offense, and refuse medical assistance after a third overdose.  Resources for supply side interventions are dwarfing those dedicated to evidence-based interventions like community-based naloxone or syringe exchange.

In this conference hosted by the Drug Policy Alliance, Ohio State University Moritz College of Law Drug Enforcement and Policy Center, Harm Reduction Ohio, and ACLU-Ohio along with partners Harm Reduction Coalition, The Ohio Alliance for Innovation in Population Health and the Ohio State College of Public Health, we will explore why a public health approach to problematic drug use and overdose is critical to reducing needless deaths and other harms and why punitive measures can be counterproductive and destructive. Local, national, and international expert panelists will articulate why and how we can reverse course in our response to the overdose crisis by embracing and applying evidence and the principles of harm reduction rather than principles of punishment.  In so doing, panelists will also dispel common myths about what is effective and what is not based on research, science, and experience.

More details about and registration for this event are available here and here.

September 23, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, September 22, 2018

"Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty"

The title of this post is the title of this new article on SSRN authored by Vanessa Edkins and Lucian Dervan.  Here is its abstract:

With a criminal conviction comes numerous restrictions on rights, and often these collateral consequences are not adequately communicated to a defendant accepting a plea deal. The question we posed was whether informing individuals of collateral consequences would alter their decisions to plead.  Using prospect theory (Kahneman & Tversky, 1984) and the theory of temporal discounting (Ainslie, 1975), we hypothesized that the delayed nature of collateral consequences — especially if the consequences were competing with overly enticing immediate rewards to accepting a plea deal, namely the ability to be released from pretrial detention — would not have the desired effect of exerting a strong influence on decisions to plead.

Across two studies — the first, an exploratory within-subjects design; the second, a more controlled between-subjects design — we found that while actual guilt mattered the most with regard to decisions to plead, pretrial detention also weighed heavy (especially influential in challenging our innocent participants’ steadfastness to hold out for a trial). Collateral consequences did not have as large of an impact, especially if pretrial detention was involved.  We also saw that, in general, participants were not opposed to the imposition of most collateral consequences.  Future directions for plea bargaining research are discussed.

September 22, 2018 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, September 21, 2018

Why is the Sessions' DOJ now taking death penalty off the table for Donald Fell after so much cost and agony for victims?

The question in the title of this post emerges from this notable federal capital news, headlined "Accused killer Donald Fell to take plea deal, avoid death penalty," emerging from Vermont in a long-running multiple murder case.  Here are the basics:

Nearly 20 years after he allegedly kidnapped and murdered a Vermont grandmother, accused killer Donald Fell is changing his plea and will avoid the death penalty.

Terry King, 53, was arriving for work at the Rutland Price Chopper in 2000 when police say Donald Fell and Robert Lee carjacked her, drove her to New York and killed her on the side of the road.

Fell was convicted and sentenced to death in 2005.  But his federal conviction was overturned due to juror misconduct and a new death penalty trial was set to begin.

But now there is a plea deal that takes the death penalty off the table. Court documents show Fell will plead guilty to four federal crimes, including carjacking and kidnapping with death resulting. In exchange, he will spend the rest of his life in prison without the possibility of parole.  A judge must still accept the agreement.

Fell's alleged accomplice, Robert Lee, never stood trial. He killed himself in prison. Fell and Lee were accused of two other murders that night. Police say before kidnapping Terry King, the men murdered Fell's mother, Debra, and her friend, Charles Conway in Rutland. But those killings took a back seat to King's murder because the feds were charging the men in that case since they brought King across state lines. The feds also had the death penalty to bargain with. The state of Vermont does not have a death penalty.

As highlighted via prior posts below, Fell's legal team has been making an aggressive case against his continued capital prosecution.  But I sincerely doubt federal prosecutors found any of their claims compelling or really worried that federal judges would.  So I am inclined to assume that federal prosecutors just concluded, presumably with the blessing of Attorney General Jeff Sessions, that throwing more federal taxpayer dollars after the pursuit of federal death sentence was just not a good investment of limited resources (perhaps especially because the feds have not executed anyone in over 15 years).

That all said, I still find this decision especially striking because the victims here are vocally against this plea resolution.  This local article, headlined "Victim's family says justice not served with Fell plea deal," explains the family's reaction while also suggesting federal prosecutors had to work had to talk them into being content with this resolution:

The family of Terry King says justice is not being served. That's their response to news a plea deal has been reached with King's accused killer, Donald Fell. The deal means Fell will avoid the death penalty. "I mean they beat her to death. Beat her to death while she prayed for her life. And yet he is allowed to live? What justice is that?" demanded Barbara Tuttle, Terry King's sister.

Tuttle is talking about Donald Fell, the man accused of the brutal murder of Terry King. The North Clarendon grandmother was kidnapped on her way to work back in 2000. "It is a total embarrassment for the U.S. government as far as I am concerned, a total embarrassment," Tuttle said. And King's sister says she speaks for the entire family....

"If you are going to have the death penalty, then enforce it. If you are not going to use it, then why is the law there? Why all these appeals over and over and over again? Eighteen years of this," Tuttle said.

Tuttle says her family has known a plea deal was in the works for several weeks. Under the deal, Fell will plead guilty to four federal crimes including carjacking and kidnapping with death resulting.  Tuttle says her family was convinced by prosecutors it was the best way to go to avoid another lengthy trial and appeal process.  "I would just as soon go to court all over again if I knew that he would come out with the death penalty.  And it was actually be enforced and we wouldn't have to go through 18 more years of appeals," she said. "It is ridiculous."

Tuttle says at least she won't have to keep being reminded of the case once Fell is sentenced to life without parole. She hopes if any good can come of the story, maybe it can lead to changes in the system. "They are always talking about criminal justice reform. Let me tell you, this is a perfect example of why our system is broken," she said....

It is important to note that a federal judge still needs to approve this deal. The case goes back to court Sept. 28.

I doubt the family member speaking here would be content with abolition of the death penalty as a way to fix this part of a broken capital criminal justice system. But I find it so telling that the "tough-and-tougher" federal administration that Prez Trump advocates and that AG Sessions seeks to implement ultimately gave up here on what should not be a uniquely hard capital prosecution.  Another notable data point to support the view that the long-running litigation war against the death penalty is ever closer to a complete victory.

Prior related posts:

September 21, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

So much great content and commentary at "The Appeal"

I noted in this post a few months ago a "renamed, revamped, and relaunched criminal justice publication: The Appeal" with a commitment to "focus on the most significant drivers of mass incarceration, which occur at the state and local level."  The Appeal is now in the a habit of producing so much good original content, I cannot keep up with it all, and so I thought it worthwhile here to highlight just some of the content over just the last few weeks that should be of interest to sentencing fans:

"The Incalculable Costs Of Mass Incarceration" by John Pfaff

"Texas D.A. Who Sent Woman To Prison For Five Years For Voting Made Her Own Election Mistake" by Steven Yoder

Podcast on "Justice In America Episode 9: How Democrats And Republicans Created Mass Incarceration" by Josie Duffy Rice and Clint Smith

"Safe Injection Sites Are On The Way. But Will Prosecutions Follow?" by Maura Ewing

"In New York, Most Parolees Can Now Vote — But Many County Websites Say They Can’t" by Emma Whitford

"A New Power For Prosecutors Is On The Horizon — Reducing Harsh Sentences" by Kyle Barry 

September 21, 2018 in Recommended reading, Who Sentences | Permalink | Comments (0)

Spotlighting ever-increasing overdose casualties amidst the last four decades of the war on drugs

F2.largeA new article in Science presents some notable data and observations about drug overdoses over the last 40 years in the US.  This article by six public health researchers is titled "Changing dynamics of the drug overdose epidemic in the United States from 1979 through 2016." Here is its full abstract:

INTRODUCTION

The epidemic of substance use disorders and drug overdose deaths is a growing public health crisis in the United States.  Every day, 174 people die from drug overdoses. Currently, opioids (including prescription opioids, heroin, and synthetic opioids such as fentanyl and its chemical analogs) are the leading cause of overdose deaths.  The overdose mortality data can reveal the complex and evolving dynamics of drug use in the United States.

RATIONALE

Reports on the U.S. drug overdose epidemic tend to focus on changes in yearly statistics. Improved understanding of the long-term dynamics of the overdose epidemic may aid in the development of more effective epidemic prevention and control strategies.  At present, there are no reliable methods to forecast the likely future course of the epidemic. We focused on deaths from overdoses as a relatively reliable metric of the epidemic because all deaths are required to be reported in all U.S. states and territories using the standardized International Classification of Diseases.  In an effort to understand the epidemic dynamics and perhaps predict its future course, we analyzed records of 599,255 deaths from 1979 through 2016 from the National Vital Statistics System where unintentional drug poisoning was identified as the main cause of death.  We examined the time course of the overall number of deaths; the contributions of individual drugs (prescription opioids, heroin, synthetic opioids like fentanyl, methadone, cocaine, methamphetamine) to the overall curve; changes in the populations most affected by each drug as measured by demographic factors of age, sex, race, and urbanicity; and changes in the geographic distribution of deaths due to each drug as measured by the county of residence of each decedent.

RESULTS

The overall mortality rate for unintentional drug poisonings in the United States grew exponentially from 1979 through 2016.  This exponentially increasing mortality rate has tracked along a remarkably smooth trajectory (log linear R2 = 0.99) for at least 38 years (left panel). By contrast, the trajectories of mortality rates from individual drugs have not tracked along exponential trajectories.  Cocaine was a leading cause in 2005–2006, which was overtaken successively by prescription opioids, then heroin, and then synthetic opioids such as fentanyl. The demographic patterns of deaths due to each drug have also shown substantial variability over time.  Until 2010, most deaths were in 40- to 50-year-old persons, from cocaine and increasingly from prescription drugs. Deaths from heroin and then fentanyl have subsequently predominated, affecting younger persons, ages 20 to 40 (middle panel).  Mortality rates for males have exceeded those for females for all drugs. Rates for whites exceeded those for blacks for all opioids, but rates were much greater among blacks for cocaine.  Death rates for prescription drugs were greater for rural than urban populations. The geographic patterns of deaths also vary by drug. Prescription opioid deaths are widespread across the United States (right panel), whereas heroin and fentanyl deaths are predominantly located in the northeastern United States and methamphetamine deaths in the southwestern United States. Cocaine deaths tend to be associated with urban centers. The online manuscript provides many details of the patterns of mortality in these data.

CONCLUSION

The U.S. drug overdose epidemic has been inexorably tracking along an exponential growth curve since at least 1979.  Although there have been transient periods of minor acceleration or deceleration, the overall drug overdose mortality rate has regularly returned to the exponential growth curve.  This historical pattern of predictable growth for at least 38 years suggests that the current opioid epidemic may be a more recent manifestation of an ongoing longer-term process.  This process may continue along this path for several more years into the future. Paradoxically, there has been substantial variability with which specific drugs have become dominant in varying populations and geographic locales.  This variability all but negates the possibility of confident predictions about the future role of specific drugs.  Indeed, it is possible that a future overdose epidemic may be driven by a new or obscure drug that is not among the leading causes of drug overdose death today. Understanding the forces that are holding multiple subepidemics together onto a smooth exponential trajectory may be important in revealing, and effectively dealing with, the root causes of the epidemic.

Critically, this article makes no effort to suggest any link between overdose data and modern criminal law enforcement efforts described as the "war on drugs." But I still find remarkable that these data in the article start with a relatively low overdose rate right before the Reagan Administration kicked the war on drugs into high gear. If preventing or reducing deaths from drug overdoses is one goal of the the drug war, this article spotlights just how poorly we have been doing on this particular front of the war over the last four decades.

Recent prior related post:

September 21, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing | Permalink | Comments (1)