Monday, May 20, 2019

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

May 20, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Waiting for Godot ... Gundy

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

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

VLADIMIR: We can't.

ESTRAGON: Why not?

VLADIMIR: We're waiting for Gundy.

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

VLADIMIR: What?

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

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

ESTRAGON: What others?

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

ESTRAGON: What about all the capital cases?

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

ESTRAGON: It should be here by now.

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

ESTRAGON: And if it doesn't come?

VLADIMIR: We'll come back next decision day.

ESTRAGON: And then the decision day after that.

VLADIMIR: Possibly.

ESTRAGON: And so on.

VLADIMIR: The point is—

ESTRAGON: Until Gundy comes.

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

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

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

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

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

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

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

Sunday, May 19, 2019

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

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

Ten Tips for Policymakers for Parole

Key Points

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

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

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

Ten Tips for Policymakers for Improving Probation

Key Points

• Probation can be an alternative or gateway to incarceration.

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

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

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

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

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

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

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

Chief Justice Roberts

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

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

Justice Alito

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

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

Justice Breyer

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

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

Prior related posts:

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

Saturday, May 18, 2019

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

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

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

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

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

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

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

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

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

Friday, May 17, 2019

"Incorporating Collateral Consequences into Criminal Procedure"

The title of this post is the title of this notable new paper now available on SSRN authored by Paul Crane. Here is its abstract:

A curious relationship currently exists between collateral consequences and criminal procedures.  It is now widely accepted that collateral consequences are an integral component of the American criminal justice system.  Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants.  Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process.  Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection.

This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure.  Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines.  After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial.

May 17, 2019 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, May 16, 2019

California felony murder revisions showcase, yet again, the varied challenges of giving retroactive effect to sound reforms

The Marshall Project has this notable new article about the application of California's new felony murder law under the headline "California Law Says This Man Isn’t a Murderer. Prosecutors Disagree." Here are excerpts:

After California changed its murder laws last fall, Neko Wilson was the first man to walk free. Wilson, 37, had been facing the death penalty for a 2009 robbery that led to the deaths of a couple in Fresno County.  No one accused him of killing anyone, or even being in the family’s home that night, but prosecutors said he helped plan the break-in.  At the time, that was enough for him to be charged with felony murder, under a doctrine that holds that anyone involved in a crime is responsible if a death occurs.

But in September 2018, the legislature limited murder charges to people who actually participate in a slaying. And so in October, Wilson left the Fresno County jail, where he had spent nine years awaiting trial, subsisting largely on beans and instant noodles....

That freedom may be short-lived.  Prosecutors have moved to send Wilson back to jail, arguing that the new law that freed him violates California’s constitution and that freeing him was a mistake.  A hearing is set for May 16.

District attorneys around the state have launched similar challenges since prosecutors in Orange County successfully argued in February that the new murder law unconstitutionally clashes with anti-crime initiatives that voters approved in 1978 and 1990.  As prisoners around the state seek release, some judges have agreed with the constitutional argument and others have rejected it, setting up a fight that is likely to end up in the state’s highest court.

The cases are a sign of the broader pushback facing state lawmakers who have passed laws aimed at reducing the prison population and the cost of incarceration.  After decades of tough-on-crime laws, California now leads the nation in shrinking the number of people behind bars, while crime remains near historic lows.  But the trend has angered some prosecutors, who say lawmakers are risking public safety.

May 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, May 15, 2019

New opinion memo from DOJ concludes FDA lacks jurisdiction to regulate execution drugs

As long-time readers know, state execution efforts have sometimes been thwarted in recent years because of an inability to access needed drugs for lethal injections. This new Washington Post article, headlined "Justice Department says FDA ‘lacks jurisdiction’ over death-penalty drugs," reports on the possible start to a new chapter in this long-running saga. Here are the details:

The Justice Department says in a new legal opinion that the Food and Drug Administration does not have authority over drugs used in lethal injections, a stance sure to be challenged by death-penalty opponents. The department’s Office of Legal Counsel said that “articles intended for use in capital punishment by a state or the federal government cannot be regulated as ‘drugs’ or ‘devices.’ ”

The legal opinion, issued this month, comes as states have struggled in recent years to obtain drugs for lethal injections, which remain the country’s primary method of execution even as the number of executions has declined.

In 2015, the FDA blocked Texas from importing shipments of an anesthetic from an overseas distributor, finalizing the decision two years later. The agency argued the importation was illegal because the drug, sodium thiopental, was not approved in the United States and was improperly labeled. It also cited a 2012 federal injunction barring the agency from allowing the drug’s importation.

Texas responded to the FDA’s move by suing the agency in early 2017, claiming the agency was interfering with the state’s responsibility to carry out its law enforcement duties. The lawsuit was filed shortly before President Trump took office. Trump has long been a supporter of capital punishment. while his Senate-confirmed attorneys general — Jeff Sessions, who left the post last year, and William P. Barr, who assumed the job this year — have also backed the practice.

The legal opinion from the Justice Department this month sides against the FDA and with Texas. It says that drugs intended for executions are different from any others, noting that “they exclusively inflict harm” and “are not intended to produce any benefit for the end user.” It expressly highlights “the narrowness of our conclusion,” saying that it does not address whether the FDA “has jurisdiction over drugs intended for use in physician-assisted suicide.”

But it also takes a broad view of the issues at hand, arguing that if the FDA had jurisdiction over drugs meant for executions, it would have similar power over other areas — such as firearms — which the agency has not sought to regulate.

The Justice Department’s opinion is unlikely to have any immediate effect, however, because the FDA is still operating under the 2012 injunction. It is not clear whether the Justice Department will seek to have that injunction lifted, a move that could spark a long legal tussle.

The opinion seems aimed at “giving a green light” to corrections officials to look abroad for drugs needed for executions, said Deborah Denno, a law professor at Fordham University and a death-penalty expert. “I think this has very broad ramifications, unfortunately,” Denno said in an interview. “This is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so.”

While European companies have objected to their products being used in executions, corrections officials could have more luck turning to countries such as China or India, Denno said. “It has the potential to open the floodgates,” she said....

The FDA, in defending its efforts to block states from importing unapproved sodium thiopental has cited the 2012 injunction relating to the drug. That ruling came after death-row inmates filed a lawsuit against the Obama administration, saying the FDA was acting unlawfully by exercising “enforcement discretion” to allow states to import unapproved sodium thiopental from an unregistered foreign facility.

Despite the 2012 order, however, states continued to order sodium thiopental from overseas. BuzzFeed News found that at least three states — Nebraska, Texas and Arizona — had tried to import drugs from a supplier in India despite getting warnings from the FDA in 2015.

The Texas lawsuit, filed in the waning days of the Obama administration, says the state alerted federal officials in June 2015 that its Department of Criminal Justice — which is responsible for the state’s executions — planned to “import thiopental sodium intended for law enforcement purposes.” The lawsuit said the state’s “foreign distributor” shipped 1,000 vials of the drug to Houston in late July 2015, and not long after, the drugs were impounded. According to the FDA, the agency also impounded a shipment intended for Arizona that same year. Texas officials said they had obtained the drugs legally and referred to the government’s actions as an “unjustified seizure.”

The OLC opinion is titled "Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions."  The opinion runs 26 pages and is available at this link.  Here is its concluding paragraph:

We conclude that articles intended for use in capital punishment by a State or the federal government cannot be regulated as “drugs” or “devices” under the FDCA. FDA accordingly lacks jurisdiction to regulate such articles for that intended use.

Chris Geidner, who did terrific reporting on these issues when at BuzzFeed News, has this lengthy tweet thread criticizing the substance of the OLC memo and concluding with just the right questions:

FINALLY: I'm not sure I get what the point of this OLC memo is.  To quote Madonna as Evita, "Where do we go from here?"  The injunction still exists.  This is OLC's opinion.  Is someone going to seek to have the injunction vacated?  Does DOJ think they can just ignore it?  What now?

May 15, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, May 14, 2019

"Individualized Executions"

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

States continue to botch lethal injection attempts.  The decision to move forward with such procedures without considering the health of the inmate has resulted in a series of brutal, horrific incidents.  In its Eighth Amendment jurisprudence, the Supreme Court has established that courts must give defendants individualized sentencing determinations prior to imposing a death sentence.  Woodson v. North Carolina proscribes the imposition of mandatory death sentences, and Lockett v. Ohio requires that courts examine the individualized characteristics of the offense and the offender, including allowing the defendant to provide mitigating evidence at sentencing.

This Article argues for the extension of the Eighth Amendment Woodson-Lockett principle to execution techniques.  The Court’s execution technique cases proscribe the imposition of punishments that create a substantial risk of inflicting pain.  As such, application of the Woodson-Lockett principle to executions would require that courts assess the imposition of such execution techniques on a case-by-case basis to determine the constitutionality of the technique — as applied to the particular inmate — prior to execution.

In Part I, the Article describes the recent epidemic of failed lethal injection executions and highlights the need for reform in this area.  Part II describes the Woodson-Lockett doctrine, and explores its prior applications.  Part III then explains why this doctrine ought to apply to execution techniques, not just the kind of punishment imposed.  Finally in Part IV, the Article argues for the adoption of this approach, highlighting its advantages both on individual and systemic levels.

May 14, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Is anyone collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act?

As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the so-called compassionate release statutory provisions of 18 U.S.C. § 3582(c)(1) without awaiting a motion by the Bureau of Prisons.   I see this provision is as such a big deal because I think, if applied appropriately, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive prison sentences reduced.

The value and impact this part of the FIRST STEP Act will turn on how judges approach compassionate release, which is one reason I am hopeful (but not optimistic) that the US Sentencing Commission will report real-time data on how this part of the new law is being applied.  Valuably, the FIRST STEP Act provides that "not later than 1 year after December 21, 2018, and once every year thereafter, the Director of the Bureau of Prisons shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on requests for sentence reductions pursuant to subsection (c)(1)(A)."  But yearly reports on this topic seem insufficient given that judges considering sentence reduction motions, as well as lawyers litigating them, would benefit greatly from knowing more immediately about what kinds of motions are being brought and granted.

Last month, DOJ reported that "22 inmates have already received sentence reductions under this program," but I was unable to find any sentence reduction orders under § 3582(c)(1) via a quick Westlaw search.  I have blogged here and here reports on some sentence reductions, and a helpful lawyer recently sent me a copy of another such order in a Tennessee case from earlier this month (Download Pesterfield Order).  I will try to post in this space any news and information I receive on this front, but the question in the title of this post might be sensibly recast as a wishful thinking: "I sure hope someone is collecting and analyzing sentence reduction orders under § 3582(c)(1)."  If anyone is doing so, please loop me in as I fear there is still too much darkness and uncertainty in an arena that now presents the opportunity for much more transparency and light. 

A few prior related posts:

Since FIRST STEP:

Prior to FIRST STEP:

May 14, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, May 13, 2019

Is the latest SCOTUS sparring in capital cases only likely to get worse and worse?

The question in the title of this post is prompted by today's Supreme Court developments in older capital cases, some of which I missed when just blogging here about the morning order list.   Specifically, I missed that Justice Alito penned a lenghty dissent to a stay in a capital case from Texas six week ago(!), which in turn prompted a four-page defense of the stay by Justice Kavanaugh.  (This discussion can be found at this link following the original stay.)   Adam Liptak summarizes all the action in the New York Times article headlined "Tempers Fraying, Justices Continue Debate on Executions."  Here are excerpts:

Several Supreme Court justices on Monday continued a heated debate on how to handle last-minute requests in death penalty cases, issuing a series of unusual opinions about actions the court had taken several weeks ago.

Continuing to fight those battles is an indication that feelings remain raw on a court that is increasingly divided over capital cases.

A guiding principle at the Supreme Court, Justice Stephen G. Breyer has said, is that “tomorrow is another day.” The court very rarely supplements its original rulings with later explanations and responses.

In one opinion, Justice Brett M. Kavanaugh, joined by Chief Justice John G. Roberts Jr., explained why they had voted in March to stay the execution of Patrick H. Murphy, a Buddhist inmate in Texas whose request that his spiritual adviser accompany him to the death chamber had been denied though Christian and Muslim chaplains were allowed....

Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, responded on Monday with a statement. The inmate’s delay in asserting his claim, Justice Alito wrote, should have justified letting his execution go forward....

In a footnote, Justice Alito continued a discussion of an even older case, from February, in which the court had allowed a Muslim inmate to be executed outside the presence of his Muslim imam although Christian chaplains were allowed. At the time, Justice Elena Kagan, writing for the court’s four liberal members, said the majority was “profoundly wrong.”...

In a third opinion on Monday, Justice Thomas, joined by Justices Alito and Gorsuch, wrote to “set the record straight” about why they had voted last month to allow the execution of an Alabama inmate, Christopher Lee Price, a move that had prompted an anguished middle-of-the-night dissent from Justice Breyer.

As might be obvious by my question in the title of this post, I think this sparring could get even more heated in part because the reduced number of executions in recent years heighten the stakes (and litigation opportunities) around each execution.

May 13, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

No new grants, but lots of notable chatter on criminal cases in latest SCOTUS order list

It seems like a while since the Supreme Court has granted certiorari in an interesting criminal case, but today's SCOTUS order list has intrigue in the form of four interesting opinions regarding other dispositions in criminal cases. The opinion that will likely garner the most attention is the lengthy one by Justice Thomas, joined by Justices Alito and Gorsuch, in a capital case from Alabama, Price v. Dunn. That opinion gets started this way:

I concur in the denial of certiorari. I write separately to set the record straight regarding the Court’s earlier orders vacating the stays of execution entered by the District Court and the Court of Appeals in this case.  See Dunn v. Price, 587 U. S. ___ (2019).  In a late-night dissenting opinion accompanying one of those orders, JUSTICE BREYER asserted that petitioner’s death sentence was being “carried out in an arbitrary way” and that Members of this Court deviated from “basic principles of fairness.”  Id., at ___, ___ (slip op., at 1, 7). There is nothing of substance to these assertions. An accurate recounting of the circumstances leading to the now-delayed execution makes clear that petitioner’s execution was set to proceed in a procedurally unremarkable and constitutionally acceptable manner.

For First Amendment fans concerned about speech rights in prison, the next opinion on the order list may be event more interesting.  This one comes in Dahne v. Richey, and involves a dissent from the denial of cert authored by Justice Alito and is joined by Justices Thomas and Kavanaugh.  Here is the start and end of the opinion:

Does the First Amendment require a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard? Or may the prison insist that the prisoner rewrite the grievance to eliminate any threatening language? In this case, respondent Thomas Richey, an inmate currently serving a sentence for murder in Washington state prison, submitted a written prison grievance complaining that a guard had improperly denied him shower privileges. His grievance not only insulted the guard, referring to her as a “fat Hispanic,” but contained language that may reasonably be construed as a threat.....

In the decision below, the Ninth Circuit doubled down on its earlier ruling, holding that prisoners have a clearly established constitutional right to use “disrespectful” language in prison grievances and that Richey was entitled to summary judgment on his First Amendment claim.

We have made it clear that prisoners do not retain all of the free speech rights enjoyed by persons who are not incarcerated.  See, e.g., Shaw v. Murphy, 532 U. S. 223, 229 (2001). Prisons are dangerous places. To maintain order, prison authorities may insist on compliance with rules that would not be permitted in the outside world. See Turner v. Safley, 482 U. S. 78, 89–91 (1987).  Even if a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats?  I doubt it, but if the Court is uncertain, we should grant review in this case.  Perhaps there is more here than is apparent on the submissions before us, but based on those submissions, the decision of the Ninth Circuit defies both our precedents and common sense.

In addition, we get an opinion in an ACCA case, Myers v. US, a case which is GVRed back to the Eighth Circuit but which prompts a short statement from the Chief Justice in dissent joined by Justices Thomas, Alito, and Kavanaugh.  That opinion starts this way: 

I dissent from the Court’s decision to grant the petition, vacate the judgment, and remand the case. Nothing has changed since the Eighth Circuit held that Myers’s conviction for first-degree terroristic threatening qualifies as a “violent felony” under the Armed Career Criminal Act, 18 U. S. C. §924(e). The Government continues to believe that classification is correct, for the same reasons that it gave to the Eighth Circuit. But the Solicitor General asks us to send the case back, and this Court obliges, because he believes the Eighth Circuit made some mistakes in its legal analysis, even if it ultimately reached the right result. He wants the hard-working judges of the Eighth Circuit to take a “fresh” look at the case, so that they may “consider the substantial body of Arkansas case law supporting the conclusion that the statute’s death-or-serious injury language sets forth an element of the crime,” and then re-enter the same judgment the Court vacates today. Brief for United States 9, 11.

I see no basis for this disposition in these circumstances.

Finally (and not noticed by me when I did this post too quickly while on the move this morning), Justice Sotomayor has a two paragraph dissent from the denial of certiorari in Abdur-Rahman v. Parker at the very end of the order list.  (Thanks to the helpful reader who made sure I caught this.)  Here is this opinion's closing paragraph: 

The Court has recently reaffirmed (and extended) the alternative-method requirement. See Bucklew v. Precythe, 587 U.S. ___, ___–___ (2019) (slip op., at 14–20).  And today, the Court again ignores the further injustice of state secrecy laws denying death-row prisoners access to potentially crucial information for meeting that requirement. Because I continue to believe that the alternativemethod requirement is fundamentally wrong — and particularly so when compounded by secrecy laws like Tennessee’s — I dissent.

The substance of each of these opinions could merit additional commentary (and readers are urged to use the comments to do so).  But I find especially interesting which of the conservative justices are NOT among those supporting each of the opinions authored by other conservative Justices.  In the big capital case, it is the Chief and Justice Kavanaugh not signing on with Justice Thomas; the the First Amendment prisoner case, it is the Chief and Justice Gorsuch not signing on with Justice Alito; in the ACCA case, it is only Justice Gorsuch not signing on with the Chief Justice.  Hmmm.

May 13, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, May 12, 2019

Split California Court of Appeal rejects claim that second-degree felony murder provision unconstitutionally vague

A helpful reader made sure I saw an interesting and lengthy split California Court of Appeal ruling in In re White, No. E068801 (Cal. 4th App. Dist. April 30, 2019) (available here). Here is how the majority opinion gets started, along with the start of its substantive analysis:

Petitioner Gregory White challenges the constitutionality of his conviction for second degree felony murder (Pen. Code, § 187) on the basis of the United States Supreme Court’s decision in Johnson v. United States (2015) __ U.S. __, 135 S.Ct. 2551 (Johnson), and seeks relief via a petition for writ of habeas corpus....

As we discuss herein, there are some general similarities and some differences between the categorical approach analysis to the ACCA’s residual clause that the United States Supreme Court found unconstitutionally vague in Johnson and the abstract analysis under California law for the second degree felony-murder rule.  However, on this record, we do not find unconstitutional vagueness in petitioner’s conviction for second degree felony murder for the death of an accomplice arising out of the felonious manufacture of methamphetamine.  Accordingly, we will deny the petition.

Here is how the dissenting opinion authored by Judge Raphael gets started:

Under California’s second degree felony-murder law, petitioner Gregory White’s guilt depended upon an abstract legal issue that had nothing to do with his actions.  The trial court had to adjudicate whether California’s offense of manufacturing methamphetamine — in general, not in White’s case in particular — was “inherently dangerous to human life” such that it qualified as a felony murder predicate.  If so, the fact that White’s co-conspirator died from burns incurred during the manufacture meant White was guilty of not just the drug crime, but of murdering his accomplice.

Had our Legislature listed methamphetamine manufacture among the crimes that can serve as a predicate for first degree felony murder, White would be guilty of murder with no claim that the crime of conviction was unconstitutionally vague.  The Legislature would have provided notice to the public and adequately guided the courts.  But there is no statutory list of predicate crimes for second degree felony murder.  A defendant such as White may find out whether his crime qualifies after he committed it, when a court determines whether the crime, taken in the abstract, fits the amorphous inherent-dangerousness-to-life standard....

I conclude that under Johnson, California’s second degree felony-murder law is unconstitutionally vague because it requires courts to assess the hypothetical risk posed by an abstract generic version of the offense.

May 12, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Friday, May 10, 2019

Split Eighth Circuit panel explores lifetime supervised release conditions for child porn offender

A helpful reader made sure I did not miss an Eighth Circuit panel's work today in US v. Carson, No. 17-3589 (8th Cir. May 10, 2019) (available here). Like many federal sentencing cases, there are lots of small stories wrapped within the numbing reality of an offender with an affinity for child porn and teenage girls receiving mass punishment: e.g., the defendant here got "only" 20 years in prison when his guideline range called for 30 years; even though facing the real possibility of imprisonment until nearly 2045, for some reason "Carson did not submit his own sentencing memorandum"; counsel at sentencing did not object to broad conditions of lifetime supervised release, so they get reviewed only for plain error.

The heart of the legal dispute on appeal is defendant's claim that sentencing court should have had to provide a distinct analysis and justifications for his special conditions of supervised release, one of which included social media restrictions seemingly comparable to what the Supreme Court stuck down as unconstitutional in Packingham v. North Carolina. Here is a portion of the majority's rejection of the claims on appeal:

We next turn to Carson’s argument that Special Condition 16 (the social media restriction) “suffers the same flaws as the North Carolina statute held to be unconstitutional in Packingham.”  The Supreme Court in Packingham considered the constitutionality of a statute prohibiting registered sex offenders from “access[ing] a commercial social networking Web site where the sex offender knows that the site permits minor children to become members” or from “creat[ing] or maintain[ing] personal Web pages” on such sites.  Packingham, 137 S. Ct. at 1733 (quoting N.C. Gen. Stat. Ann. § 14-202.5(a), (e)).  The Supreme Court held the statute burdened substantially more speech than necessary to further the government’s interests in protecting minors from sexual abuse.  Id. at 1737–38.  The Court reasoned that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” given the importance of social media for accessing information and communicating with others. Id. at 1737.  Carson argues his court-imposed inability to maintain or create a user account on any social media site falls squarely under the holding of Packingham.

We disagree.  Several of our sister circuits have rejected a similar argument in challenges to supervised release conditions forbidding access to the internet — and effectively to social media sites — without prior approval or monitoring by a court or probation officer.  See United States v. Antczak, 753 F. App’x. 705, 715 (11th Cir. 2018) (unpublished); United States v. Halverson, 897 F.3d 645, 657–58 (5th Cir. 2018); United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017).  These courts have noted Packingham invalidated only a post-custodial restriction and expressed concern that the statute applied even to “persons who have already served their sentence.”  Halverson, 897 F.3d at 658 (quoting Packingham, 137 S. Ct. at 1737).  Because supervised release is part of a defendant’s sentence, Packingham does not render a district court’s restriction on access to the internet during a term of supervised release plain error.  See id.; Rock, 863 F.3d at 831.  We find this reasoning applies with equal force here.  Thus, even assuming the district court’s prohibition on creating or maintaining a social media profile implicates the same First Amendment interests as a restriction on accessing social media altogether, the district court did not commit plain error by imposing Special Condition 16.

And here is the closing paragraph of Judge Kelly's dissent:

I do not minimize the seriousness of Carson’s crimes.  For those he will serve a twenty-year prison term followed by a lengthy term of supervised release.  I also recognize the need to monitor Carson’s conduct upon release.  But Carson was thirty- three at the time of his arrest, and his lifetime term of supervised release could very well last decades. We can only imagine the universe of internet-reliant electronic devices that will pervade everyday life by then.  The length and conditions of Carson’s supervised release may well be justified, but such punishment deserves, at minimum, some reasoned explanation from the sentencing court.  Accordingly, I respectfully dissent.

May 10, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

"4 Ways To Win A Presidential Pardon Under Trump"

The title of this post is the headline of this lengthy new HuffPost piece, which carries this subheading: "Trump’s pardon process is unorthodox. But his willingness work around a deeply flawed Justice Department system has advocates for clemency reform hopeful."   This piece is a thorough and thoughtful review of modern federal clemency realities, and I recommend it in full.  Here are excerpts from its start and finish, as well as the headings that seem to capture the "4 ways to win" described in the headline:

There’s a name rumbling through prisons around the nation: Jared Kushner.  Kushner’s father served time in federal prison, and some incarcerated people hope that experience gives President Donald Trump’s son-in-law and top adviser a better understanding of their plight ― and could lead him to look favorably on their requests for clemency.

The idea that Kushner might have some special interest in freeing prisoners has so pervaded the nation’s federal prisons that some inmates have sent copies of their clemency applications directly to his Office of American Innovation in the White House.  A few inmates have even pinned news clips of Kushner on their cell walls.

Jared Kushner, cellblock pinup, is just one of the surprising results of Trump’s unconventional approach to granting clemency.  The president has been bypassing the Office of the Pardon Attorney at the Department of Justice, which has vetted clemency applications under previous presidents, and has acted more impulsively, issuing high-profile clemencies in cases that grab his attention. So inmates and their advocates have adapted their tactics to fit the current administration.  Here’s a guide to how to win a pardon under Trump.

Send Your Application To Jared Kushner... 
Get Kim Kardashian West’s Attention....
Get Your Case On Fox News....
Don’t Expect Much From The Pardon Attorney’s Office.... 

The framers of the Constitution gave the president the pardon power to act as a backstop to an imperfect criminal justice system that too often doles out excessively harsh punishment. That’s not always how presidents have used that power. Some of Trump’s pardons appear to have more to do with political favoritism or celebrity attention than with any interest in remedying overzealous prosecution or unfair sentencing. But they’re not the product of a lengthy and conflicted bureaucratic process, either. And that might be a good thing, some clemency advocates argue....

Margaret Love, a former pardon attorney, argues that one of the biggest stumbling blocks [to a well-functioning clemency process] is the transfer of the pardon attorney’s office to the deputy attorney general’s bailiwick.  The deputy attorney general oversees all prosecutors in the many U.S. attorney’s offices around the nation — the very same prosecutors who are bringing charges against defendants that the pardon attorney is seeking to provide relief to.  He or she also has the authority to review the pardon attorney’s clemency recommendations and can ultimately reject the application.  Critics say this is exactly what happens all too frequently, as federal prosecutors have little interest in questioning or unwinding the department’s convictions. Justice Department prosecutors have become “determinedly and irreconcilably hostile” to clemency, Love wrote in a 2015 paper.

The process can be extremely difficult for prisoners and their lawyers, explained Mark Osler, a professor at the University of St. Thomas in Minneapolis and an expert on clemency. “Unlike other parts of the criminal process, with clemency there is no transparency: no sense of where the petition is in the process, what the timeline will be or even the reasoning behind a grant or denial,” Osler said.

The mystery that envelops the process is unnecessary, Osler argues.  Osler and other clemency experts, such as Rachel Barkow, a New York University law professor and a member of the U.S. Sentencing Commission from 2013 to 2018, have pushed for years to move the pardon attorney’s office out from under the Justice Department and instead situate it as an independent, bipartisan commission inside the Executive Office of the President with a diverse membership that could directly inform the president of its recommendations. That remedy could relieve the inherent conflicts of interest of DOJ oversight, allow for more voices to weigh in on an application beyond federal prosecutors, and increase transparency around clemency.

Advocates are eager for Trump to establish a formal process that is outside the Department of Justice at some point. But the unending controversies swirling around the president, including with regard to controversial pardons, may make that impossible. In the meantime, incarcerated people and their advocates will try every means available to reach Trump. “People are just desperate, and so they’re sending things to the pardon attorney, they’re sending things to the White House because there’s just no clear guidance,” explained one attorney who has worked on pardons and who requested anonymity due to the sensitivity of the ongoing process. “It’s quite disheartening. Everyone’s not going to have the celebrity touch,” the attorney said. “They’re just not.”

A few of many recent related posts: 

May 10, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, May 09, 2019

Noting how California's prosecutors keep pursuing death sentences despite execution moratorium, and what more Gov Newsom has in mind

This new lengthy New York Times article discusses the (unsurprisingly) reality that local prosecutors in California keep bringing capital charges even though the state's chief executive has impose a moratorium on execitions. The piece is headlined "California Has a Moratorium on Executions. Prosecutors Want New Death Sentences Anyway."  Here are excertps:

Gov. Gavin Newsom, a Democrat, issued a moratorium in March on executions in the state, which has more death row inmates than anywhere else in the Western Hemisphere. But that decision has not stopped local prosecutors from seeking new death sentences, underscoring the divide in the state between conservative prosecutors and liberal reformers like the governor.

And as liberal as California voters are generally, as recently as 2016 they rejected a ballot measure that would have abolished capital punishment, and approved another one to fast-track executions.

These divisions, experts say, are setting the backdrop for what could be a contentious fight as Mr. Newsom takes new steps beyond the moratorium to abolish capital punishment. For now, the moratorium amounts to temporary reprieves for each of the 737 men and women on California’s death row, which will last for the duration of his time as governor.

“It’s got to be really confusing for the average citizen who sees both things going on and doesn’t understand how all of the above can be occurring,” said Michele Hanisee, the president of the Association of Deputy District Attorneys in Los Angeles County. She is seeking a death sentence in one of her cases: The man accused of being a serial killer, Alexander Hernandez, who is charged with killing five people in a shooting rampage in the San Fernando Valley in 2014.

“The simple answer is this: The district attorneys of the state of California took an oath to uphold and follow the law,” Ms. Hanisee said. “I think the governor probably did too, but he doesn’t care.” The governor, she added, does “not have the legal authority to tell them not to seek death or not to follow the law.”

New death sentences in California have declined in recent years — 2018 was a record low, with five new sentences. The drop aligns with a national trend, as public support for capital punishment has waned and juries have been reluctant to impose death sentences in the face of evidence of racial disparities and high-profile exonerations. Before Mr. Newsom’s moratorium, 20 other states, including most recently Washington and Delaware, had abolished the practice....

California, while maintaining a large death row, has not executed anyone since 2006. There were longstanding legal challenges to the state’s lethal injection protocol that had halted executions even before Mr. Newsom’s moratorium.

In an interview, Mr. Newsom said his administration was considering several new steps to dismantle the state’s capital punishment system, and that his moratorium was a first step on what he hoped was a path that ended with abolition. He said his advisers were studying how he could commute the sentences of current death row inmates to life without parole. Mr. Newsom has the power to commute sentences in which the inmate has only one felony, but more than half of the death row population has at least two felonies; to commute those sentences would require approval from the State Supreme Court.

Mr. Newsom’s advisers are focusing on the Supreme Court’s decision to block several pardons or commutations — though not for death row inmates — issued by former Gov. Jerry Brown before he left office in January. Those rejections were the first time in decades the court had blocked a governor’s commutations, and Mr. Newsom has asked the court for an explanation. He hopes the explanation will offer some guidance “that will allow us to form better judgment on next steps if we want to look to commutations on the capital punishment side.”...

Mr. Newsom also said he was discussing with the attorney general’s office what role the state could play in blocking prosecutions of new death sentences. But legal experts say this power is limited: The state could decline to defend capital cases on appeal, but it does not have the power to order district attorneys, who are elected at the county level, to not seek death.

One possibility is that the attorney general could take cases away from local prosecutors. But experts say that is unlikely and would be unprecedented. “I have not seen any indication from our attorney general that they want to impose the governor’s view and take cases away from us so that we cannot seek capital punishment,” said Anne Marie Schubert, the Sacramento County district attorney, who is part of the prosecution in the Golden State Killer case.

Ms. Schubert added that, “Capital punishment is the law in California, and just because Gavin Newsom has a personal opposition to it doesn’t mean that we as prosecutors abandon our obligation to enforce the law in the appropriate cases. I’m not this zealot about the death penalty, but it is the law.”

Prior related posts:

May 9, 2019 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

"Unusual State Capital Punishments"

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

This article argues that many of the states that retain the death penalty currently violate their own constitutions because their use of the death penalty is unusual.  Specifically, the death penalty in some states, particularly when assessed in an intra-state manner examining its use across counties, suggests that the rareness of its use might mean that it has become an unusual punishment.  As a result, this article explores the twenty-six capital states that proscribe unusual punishments and categorizes them based on the likelihood that their utilization of the death penalty violates their state constitution.

Part I of the article explains the concept of unusualness under the Eighth Amendment as developed by the United States Supreme Court in its capital cases.  In Part II, the article explores the Eighth Amendment analogues in state constitutions that similarly prohibit unusual punishments and the conjunctive and disjunctive language of the state constitutions, before demonstrating how the Eighth Amendment approach could translate to the analysis of unusualness under state constitutional law.  Part III then examines the states that have unusual proscriptions in their state constitutions, and categorizes the states based on the likelihood that their use of the death penalty violates their state constitution.  Finally, in Part IV, the article argues for an expansive application of state constitutions to bar unusual state capital punishments, exploring the policy reasons supporting this analytical move.

May 9, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, May 07, 2019

"Report on Algorithmic Risk Assessment Tools in the U.S. Criminal Justice System"

The title of this post is the title of this notable new report "written by the staff of the Partnership on AI (PAI) and many of [its] Partner organizations."  Here is part of the report's executive summary:

This report documents the serious shortcomings of risk assessment tools in the U.S. criminal justice system, most particularly in the context of pretrial detentions, though many of our observations also apply to their uses for other purposes such as probation and sentencing.  Several jurisdictions have already passed legislation mandating the use of these tools, despite numerous deeply concerning problems and limitations. Gathering the views of the artificial intelligence and machine learning research community, PAI has outlined ten largely unfulfilled requirements that jurisdictions should weigh heavily and address before further use of risk assessment tools in the criminal justice system.

Using risk assessment tools to make fair decisions about human liberty would require solving deep ethical, technical, and statistical challenges, including ensuring that the tools are designed and built to mitigate bias at both the model and data layers, and that proper protocols are in place to promote transparency and accountability.  The tools currently available and under consideration for widespread use suffer from several of these failures, as outlined within this document.

We identified these shortcomings through consultations with our expert members, as well as reviewing the literature on risk assessment tools and publicly available resources regarding tools currently in use. Our research was limited in some cases by the fact that most tools do not provide sufficiently detailed information about their current usage to evaluate them on all of the requirements in this report.  Jurisdictions and companies developing these tools should implement Requirement 8, which calls for greater transparency around the data and algorithms used, to address this issue for future research projects.  That said, many of the concerns outlined in this report apply to any attempt to use existing criminal justice data to train statistical models or to create heuristics to make decisions about the liberty of individuals.

Challenges in using these tools effectively fall broadly into three categories, each of which corresponds to a section of our report:

-- Concerns about the validity, accuracy, and bias in the tools themselves;

-- Issues with the interface between the tools and the humans who interact with them; and

-- Questions of governance, transparency, and accountability.

Although the use of these tools is in part motivated by the desire to mitigate existing human fallibility in the criminal justice system, it is a serious misunderstanding to view tools as objective or neutral simply because they are based on data.  While formulas and statistical models provide some degree of consistency and replicability, they still share or amplify many weaknesses of human decision-making.  Decisions regarding what data to use, how to handle missing data, what objectives to optimize, and what thresholds to set all have significant implications on the accuracy, validity, and bias of these tools, and ultimately on the lives and liberty of the individuals they assess....

In light of these issues, as a general principle, these tools should not be used alone to make decisions to detain or to continue detention.  Given the pressing issue of mass incarceration, it might be reasonable to use these tools to facilitate the automatic pretrial release of more individuals, but they should not be used to detain individuals automatically without additional (and timely) individualized hearings.  Moreover, any use of these tools should address the bias, human-computer interface, transparency, and accountability concerns outlined in this report.

This report highlights some of the key problems encountered using risk assessment tools for criminal justice applications.  Many important questions remain open, however, and unknown issues may yet emerge in this space.  Surfacing and answering those concerns will require ongoing research and collaboration between policymakers, the AI research community, and civil society groups.  It is PAI’s mission to spur and facilitate these conversations and to produce research to bridge these gaps.

May 7, 2019 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (1)

Friday, May 03, 2019

"When Plea Bargaining Became Normal"

The title of this post is the title of this interesting new article authored by William Ortman and now available on SSRN. Here is its abstract:

Plea bargaining is the criminal justice system, the Supreme Court tells us, but how did it get to be that way?  Existing scholarship tells only part of the story.  It demonstrates that plea bargaining emerged in the nineteenth century as a response to (depending on one’s theory) increasing caseloads, expanding trial procedures, or professionalizing law enforcement.  But in order for plea bargaining to truly become the criminal justice system, the legal profession would have to accept and internalize it.  That was not its first reaction. When legal scholars and reformers in the 1920s discovered that bargaining dominated America’s criminal courts, they quickly denounced it as abusive.  By the 1960s, only four decades later, the legal profession had learned to love it.

This article investigates the process that made plea bargaining the normal way of doing American criminal justice.  The story unfolds in three parts—plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s; its rehabilitation by the Legal Realists in the 1930s; and finally its decisive embrace by scholars and judges in the 1950s and ‘60s.  The Realists’ starring role is surprising, as they are not usually recognized for contributing to criminal law or procedure.  This article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization.  The article also pays close attention to an objection to plea bargaining that arrived late — that it depends on coercing defendants to plead guilty.  By the time this objection emerged in the 1950s, plea bargaining’s momentum was too strong; legal elites, and, ultimately, the Supreme Court, saw no option but to rationalize it away. Above all, this article reveals that normalized plea bargaining is newer and more historically contingent than it seems.

May 3, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, May 02, 2019

Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court

This Los Angeles Times article, headlined "Bay Area couple first to plead guilty in college admissions scandal," reports on a huge high-profile federal fraud case now getting ever closer to sentencing for one pair of defendants. Here are the details:

A Northern California couple who secured their daughters’ spots at UCLA and USC with bribes and rigged tests pleaded guilty Wednesday to fraud and money laundering offenses, the first parents to admit their guilt before a judge in an investigation that has sent shivers through circles of Silicon Valley, Wall Street, Hollywood and some of the country’s most elite universities.

Davina Isackson of Hillsborough, Calif., pleaded guilty to one count of fraud conspiracy. Her husband, real estate developer Bruce Isackson, pleaded guilty to one count of fraud conspiracy, one count of money laundering conspiracy and one count of conspiracy to defraud the United States. They will be sentenced July 31. In Davina Isackson’s plea agreement, prosecutors recommended a sentence at the low end of federal guidelines that call for 27 to 33 months in prison. For Bruce Isackson, they suggested a sentence at the low end of 37 to 46 months in prison.

Of the 33 parents charged in the investigation, the Isacksons are the only ones to have signed cooperation deals with prosecutors. If prosecutors decide the couple provided useful and credible information, they can recommend that a judge sentence them below the federal guidelines.

Investigators want to learn from the couple who at UCLA and USC knew of an alleged recruiting scheme they used to slip their two daughters into the universities as sham athletes, The Times has reported. The Isacksons’ older daughter, Lauren, was admitted to UCLA as a recruited soccer player, given a jersey number and listed on the team roster as a midfielder for an entire season, despite never having played the sport competitively, prosecutors alleged.

To ensure she got in, they said, her parents transferred $250,000 in Facebook stock to the foundation of Newport Beach college consultant William “Rick” Singer, which Bruce Isackson later wrote off on the couple’s taxes as a charitable gift....

The Isacksons tapped Singer’s “side door” the following year to have their younger daughter admitted to USC as a recruited rower, prosecutors alleged. The couple also availed themselves of Singer’s test-rigging scheme, prosecutors said, in which he bribed SAT and ACT administrators to turn a blind eye to his 36-year-old, Harvard-educated accomplice.

With the help of the accomplice, Mark Riddell, the Isacksons’ younger daughter scored a 31 out of 36 on the ACT, prosecutors said. Her father paid Singer’s foundation $100,000 and wrote it off on taxes as a charitable gift.

I find notable that federal prosecutors think that two+ years of imprisonment is necessary for one of these the Isacksons and that three+ years is necessary for the other in accord with guideline calculations. But, because it appears that these defendants may be providing "substantial assistance," the feds may ultimately be recommending lower sentences as a kind of compensation for this kind of cooperation.

Prior related posts:

May 2, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Wednesday, May 01, 2019

Virginia Gov explains why he will not sign any mandatory minimum bills for the remainder of his term

A number of folks made sure I did not miss this interesting Washington Post commentary authored by Ralph Northam, the governor of Virginia. The piece is headlined "Ralph Northam: I won’t sign another mandatory minimum sentence bill into law. Here’s why." I recommend the full piece, and here are excerpts:

Over the past few decades, there has been a rise in legislation imposing mandatory minimum sentencing.  These kinds of sentences are determined by elected officials who purport to be tough on crime, particularly drug offenses.  Judges are not given the opportunity to arrive at these sentences by weighing the facts on a case-by-case basis.

This session, I signed one such bill into law, regarding the murder of police officers.  It will be the last mandatory minimum bill that I sign for the remainder of my term as Virginia’s governor.

I believe we have more than enough mandatory minimum sentences — more than 200 — in Virginia state code. In recent weeks,  I have visited with community leaders across the state seeking input on how I can best use the power of the governor’s office to make our commonwealth fairer and more equitable for communities of color.  My commitment today will not solve all of the issues with our criminal justice system, but I believe it is a step in the right direction.

I’m starting with vetoes of two mandatory minimum sentencing bills this week.  The bills demonstrate how we have become too quick to impose mandatory minimum sentencing.  One, House Bill 2042, would impose a 60-day mandatory minimum for assault and battery against a family or household member for someone with a prior assault and battery conviction in recent years.  The other, Senate Bill 1675, establishes a six-month mandatory minimum for killing or injuring a law enforcement animal, which is already a felony under Virginia code.

While violence is unacceptable, these are crimes that can be addressed by a judge with full knowledge of the facts and circumstances of each particular case.

Piling on mandatory minimum sentences has contributed to our growing prison population over the past few decades, to the point that the United States has the highest rate of incarceration in the world.

The 1980s and 1990s saw a rise in the popularity of mandatory minimums pegged to drug offenses, no matter the circumstances.  Mandatory minimums for lower-level drug offenses, along with three-strikes laws, helped accelerate the rise in prison populations in the United States.  At the end of 2016, the United States had 655 people in prison for every 100,000 adults, according to World Prison Population List, compared to a world prison population rate of 145 per 100,000 adults. That is the highest incarceration rate out of 222 countries ranked by the World Prison Brief.

Data do not indicate that mandatory minimum sentences keep our communities safer.  Instead, mandatory minimums are disproportionately harming people and communities of color....

Mandatory minimums are focused on punishment, not rehabilitation.  I have declared May to be Second Chance Month in Virginia, to increase the focus on ways we can make our criminal justice system fairer and more equitable.  We must continue to prepare returning citizens to be successful members of the community.  And we must work harder to address the mental health and substance-use disorders that often lead people into our criminal justice system.

We need to focus on evidence-based approaches that ensure equitable treatment under the law.  And we must focus on ways to rehabilitate returning citizens, particularly nonviolent ones.  I want to give our judges, appointed by the Virginia General Assembly, the appropriate discretion over sentencing decisions.  We must remember that punishment and justice are not always the same thing. We are better as a society when we give our judicial system the ability to discern the difference.

May 1, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, April 29, 2019

In sparring opinion surrounding en banc denial, Eleventh Circuit judges debate the metaphysics of Booker and Johnson

The full Eleventh Circuit needed only one sentence in this order in Lester v. US to deny en banc review in a case in which a pre-Booker career offender sought collateral review based on the void-for-vagueness doctrine of Johnson.  But a number of judges on that court, including the former Acting Chair of the US Sentencing Commission, Judge William Pryor, needed more than 60 pages to explain their views on the soundness of this denial.  While hard-core fans of habeas doctrines will likely enjoy all the back-and-forth within all the separate opinions, many sentencing fans might get a kick out of how Judge Rosenbaum characterizes Judge Pryor's account of the the past and present of sentencing law:

According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory.  Id. at 19.  That is certainly interesting on a metaphysical level.

But it ignores reality.  Back here on Earth, the laws of physics still apply.  And the Supreme Court’s invalidation of a law does not alter the space-time continuum.  Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as § 3553(b) required, to scores of criminal defendants — including many who still sit in prison because of them.

I am tempted to joke that I still kind of feel like it was Justice Scalia's opinion in Blakely that did, in some sense, "alter the space-time continuum."  But rather than further joke or philosophize on these matters, I will just encourage readers to check out all the sound and fury to be found in Lester.

April 29, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

"Booker Circumvention? Adjudication Strategies in the Advisory Sentencing Guidelines Era"

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

This article addresses the question of policy circumvention in federal courts by examining how legal actors have differentially adapted their adjudicatory practices after U.S. v. Booker (2005) rendered the federal sentencing guidelines advisory rather than mandatory.  By linking two distinct bodies of scholarship — the courts-as-communities scholarship that assesses and explains locale-based variations in criminal court operations and the socio-legal “law and organizations” scholarship that addresses how organizational actors translate and implement top-down legal policy reforms — this article argues that law-as-practiced is always temporally and spatially contingent.

Expanding on prior quantitative research that addresses district-specific adaptations to Booker, this article reports on findings from a qualitative study recently conducted by the author of four federal districts.  Based on these findings, this article examines within-district changes and between-district variations in: (1) legal actors’ perceptions of whether the Booker policy change impacted local practices and outcomes, and if so, the extent of its impact; (2) how legal strategies and practices have changed at three stages of the criminal process: charging, pre-conviction plea negotiations, and formal sentencing; and (3) interviewees’ perceptions about whether Booker contributed to greater racial or other disparities in case out-comes.

Findings indicate that a dynamic, proactive adaptation process is taking place, conditioned by local norms but not fully dictated by those norms.  They also make clear that changes in sentencing outcomes in the post-Booker period are not simply the result of liberated judges exercising their discretion, but rather are jointly produced by courtroom workgroup members through both contestation and cooperation.  This inquiry is especially timely given both ongoing and proposed changes in federal sentencing policy that aim to maintain severity in punishment, re-impose constraints on legal actors, and threaten to exacerbate racial and ethnic inequalities in the federal criminal system.

April 29, 2019 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, April 27, 2019

Seventh Circuit finds Indiana approach to revoking good-time credits in sex offender program violates Fifth Amendment right against compelled self‐incrimination

A panel of the Seventh Circuit a few days ago issued a notable opinion in Lacy v. Butts, No. 17-3256 (7th Cir. April 25, 2019) (available here), which affirmed a lower court ruling that part of Indiana's Sex Offender Management and Monitoring program violates the Constitution. Here is how the court's opinion gets started:

When the state wants to encourage suspects, defendants, or incarcerated offenders to admit guilt, it has many tools at its disposal.  Before or during trial, prosecutors may hold out the prospect of a plea bargain. Judges may reward defendants with a sentence reduction for accepting responsibility.  Prison rehabilitation programs may offer benefits and incentives by conditioning visitation rights, work opportunities, housing in a lower‐security unit, and other privileges on an offender’s willingness to admit responsibility for the crime of conviction. McKune v. Lile, 536 U.S. 24, 40 (2002).

But the Fifth Amendment draws one sharp line in the sand: no person “shall be compelled in any criminal case to be a witness against himself.”  U.S. CONST. amend. V. (emphasis added).  This case requires us to decide whether Indiana’s Sex Offender Management and Monitoring (INSOMM) program crosses that line with its system of revoking good time credits and denying the opportunity to earn such credits for convicted sex offenders who refuse to confess their crimes.  In an action brought by a class led by Donald Lacy, an inmate subject to INSOMM, the district court ruled that Indiana’s system as currently operated impermissibly compels self‐incrimination and must be revised.   We affirm.

April 27, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Friday, April 26, 2019

"Individualized Sentencing"

The title of this post is the title of this notable new article available via SSRN authored by William Berry. Here is its abstract:

In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences.  One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.”  The Court’s reasoning in both cases centered on the seriousness of the death penalty.  Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence.

In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama.  Specifically, the Court held that juvenile offenders also were unique — in their capacity for rehabilitation and their diminished culpability — such that they too deserved individualized sentencing determinations.  The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases.

Felony convictions, however, are serious too.  The current consequences for a felony conviction in most states result in dehumanizing effects that extend far beyond release including loss of right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma.  As such, this Article argues for an extension of the Court’s Eighth Amendment individualized sentencing principle to all felony cases.  Doing so would require the Court to overrule its prior decisions, including Harmelin v. Michigan, but the Court’s opinion in Miller hints at a willingness to do just that.

While initially valuable in ensuring that capital cases received heightened scrutiny, the unintentional consequence of the Court’s differentness principle is that non-capital cases have received almost no constitutional scrutiny.  The individualized sentencing determination requirement provides one simple way to begin to remedy this shortcoming.

Adopting this doctrinal extension would have three major consequences: (1) it would provide each defendant his day in court in the face of serious, lifelong deprivations, (2) it would eliminate draconian mandatory sentencing practices, and (3) it would shift the sentencing determination away from prosecutors back to judges.

Part I of the Article describes the evolution of the individualized sentencing doctrine.  Part II exposes the unintended consequences of the differentness concept, and unearths the theoretical principles behind individualized sentencing.  In Part III, the Article argues for the expansion of the current doctrine and explains why the current roadblocks are not insurmountable.  Part IV then explores the consequences of broadening the application of the individualized sentencing doctrine, for defendants, legislators, and judges alike.

April 26, 2019 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Recapping a notable week of SCOTUS criminal justice arguments

As flagged in this Monday post, the Supreme Court's final week of oral arguments for this Term, which took place this past week, included hearings on three cases involving notable criminal justice issues.  We likely should not expected written decisions in Mitchell v. Wisconsin, Rehaif v. United States or Quarles v. United States until late June, but SCOTUSblog provides a sense of where the Court might be headed in these cases through these argument analysis posts:

On Mitchell by Amy Howe, "Justices debate warrantless blood draw for unconscious drunk driver"

On Rehaif by Evan Lee, "Court leaning toward requiring the government to prove that a felon in possession knew he was a felon"

On Quarles by Rory Little, "ACCA argument becomes a broader discussion of statutory interpretation"

Interesting jurisprudential developments could emerge from all three of these cases, but the Rehaif case has an issue lurking that could possibly impact lots and lots of federal prosecutions for felon in possession of a firearm under 18 U.S.C. § 922(g).  

April 26, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 25, 2019

"The High Stakes of Low-Level Criminal Justice"

The title of this post is the title of this notable book review authored by Alexandra Natapoff (who has, as noted here, her own book on this important topic). Here is the review's abstract:

The low-level misdemeanor process is a powerful socio-legal institution that both regulates and generates inequality.  At the same time, misdemeanor legal processing often ignores many foundational criminal justice values such as due process, evidence, and even individual guilt.  These features are linked: the erosion of the rule of law is one of the concrete mechanisms enabling the misdemeanor system to take aim at the disadvantaged, rather than at the merely guilty. 
In the book Misdemeanorland, Issa Kohler-Hausmann describes the inegalitarian workings of the misdemeanor legal process in New York City and how it operates as a system of managerial social control over the disadvantaged even when it stops short of convicting and incarcerating them.  This Review summarizes the book’s key contributions to the burgeoning scholarly discourse on misdemeanors and then extends its insights about New York to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.

Prior related post:

April 25, 2019 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, April 24, 2019

Texas completes another execution of another killer involved in notorious hate crime

As reported in this local article, headlined "Texas executes John William King in racist dragging death of James Byrd Jr.," the Lone Star State has completed another notable execution.  Here are the basics:

It’s been more than two decades since an infamous hate crime in East Texas, where three white men were convicted of chaining a black man to the back of a pickup truck, dragging him for miles and then dumping the remains of his body in front of a church.

On Wednesday evening, John William King, 44, became the second and final man to be executed in the 1998 murder case of James Byrd Jr. Lawrence Brewer was put to death in 2011 for the crime, and Shawn Berry is serving a life sentence.

King had previously been involved in a white supremacist prison gang, and he was notoriously covered in racist tattoos, including Ku Klux Klan symbols, a swastika and a visual depiction of a lynching, according to court documents. But King maintained that he was innocent in Byrd’s murder — claiming that Berry dropped him and Brewer off at their shared apartment before Byrd was beaten and dragged to death.

In a last-minute appeal, King’s attorney argued that a recent U.S. Supreme Court ruling entitled his client to a new trial because his original lawyers didn’t assert his claim of innocence to the jury despite King’s insistence. The Texas Court of Criminal Appeals narrowly rejected this appeal in a 5-4 ruling Monday, and the U.S. Supreme Court ruled against stopping the execution about 30 minutes after it was scheduled to begin Wednesday.

After the ruling, King was taken from a holding cell and placed on a gurney in the death chamber and hooked up to an IV. He had no personal witnesses at his execution and spoke no final words, but he did provide a written statement beforehand, stating "Capital Punishment: Them without the capital get the punishment."  He was injected with a lethal dose of pentobarbital at 6:56 p.m., and pronounced dead 12 minutes later, according to the prison department.

Two of Byrd’s sisters and his niece planned to watch King's death. One of the sisters, who also watched Brewer's execution in 2011, told The Texas Tribune Tuesday that she didn’t understand why King’s case was tied up for so long with numerous appeals. He was sentenced to death in February 1999. “He wants to find a way not to die, but he didn’t give James that chance,” said Louvon Harris. “He’s still getting off easy because your body’s not going to be flying behind a pickup truck being pulled apart.”...

Before the execution, Harris said King's death would bring her some closure, but she will still have to be involved in Berry’s case as he becomes eligible for parole in 2038.

Notably, this was only the fourth execution in all of the US so far in 2019.  For telling contrast, consider that 10 years ago, there were 24 executions in 2009 before the end of April; and 20 years ago, there were 40 executions in 1999 before the end of April.  Were the pace of just one execution per month to continue, we would see in 2019 the fewest total number of executions in the United States in more than 30 years.

However, as this upcoming executions page reveals, there are already five executions in five different states scheduled for May 2019.  If all those executions are carried out, the pace for nationwide executions in 2019 would be comparable to the pace in 2017 and 2018.

April 24, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

"How to Argue with an Algorithm: Lessons from the COMPAS ProPublica Debate"

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

The United States optimizes the efficiency of its growing criminal justice system with algorithms however, legal scholars have overlooked how to frame courtroom debates about algorithmic predictions.  In State v Loomis, the defense argued that the court’s consideration of risk assessments during sentencing was a violation of due process because the accuracy of the algorithmic prediction could not be verified.  The Wisconsin Supreme Court upheld the consideration of predictive risk at sentencing because the assessment was disclosed and the defendant could challenge the prediction by verifying the accuracy of data fed into the algorithm.

Was the court correct about how to argue with an algorithm?

The Loomis court ignored the computational procedures that processed the data within the algorithm.  How algorithms calculate data is equally as important as the quality of the data calculated.  The arguments in Loomis revealed a need for new forms of reasoning to justify the logic of evidence-based tools.  A “data science reasoning” could provide ways to dispute the integrity of predictive algorithms with arguments grounded in how the technology works.

This article’s contribution is a series of arguments that could support due process claims concerning predictive algorithms, specifically the Correctional Offender Management Profiling for Alternative Sanctions (“COMPAS”) risk assessment.  As a comprehensive treatment, this article outlines the due process arguments in Loomis, analyzes arguments in an ongoing academic debate about COMPAS, and proposes alternative arguments based on the algorithm’s organizational context.

Risk assessment has dominated one of the first wide-ranging academic debates within the emerging field of data science.  ProPublica investigative journalists claimed that the COMPAS algorithm is biased and released their findings as open data sets.  The ProPublica data started a prolific and mathematically-specific conversation about risk assessment as well as a broader conversation on the social impact of algorithms.  The ProPublica-COMPAS debate repeatedly considered three main themes: mathematical definitions of fairness, explainable interpretation of models, and the importance of population comparison groups.

While the Loomis decision addressed permissible use for a risk assessment at sentencing, a deeper understanding of daily practice within the organization could extend debates about algorithms to questions about procurement, implementation, or training.  The criminal justice organization that purchased the risk assessment is in the best position to justify how one individual’s assessment matches the algorithm designed for its administrative needs.  People subject to a risk assessment cannot conjecture how the algorithm ranked them without knowing why they were classified within a certain group and what criteria control the rankings.  The controversy over risk assessment algorithms hints at whether procedural due process is the cost of automating a criminal justice system that is operating at administrative capacity.

April 24, 2019 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Tuesday, April 23, 2019

California DAs assail Gov Newsom's execution moratorium

Four California district attorneys, Anne Marie Schubert, Michael Hestrin, Lisa Smittcamp and Gilbert Otero, have this notable new CNN commentary under the headline "California Gov. Gavin Newsom's death penalty moratorium is a disgrace."  Here is how it gets started:

Gov. Gavin Newsom's blanket moratorium on California's death penalty is a slap in the face to crime victims and their families who have waited years for justice.  With the stroke of his pen last month, Newsom single-handedly undermined our state's democratic values and our criminal justice system.

Democracy embodies a government where the people hold the ruling power either directly or through elected representatives.  In California, the people have exercised their power repeatedly in voting to keep the death penalty for the state's most horrific killers.  In fact, less than three years ago, California voters made this clear when they rejected an initiative, supported by Newsom, to abolish the death penalty and instead passed an initiative to ensure its fair and efficient implementation.

When Newsom campaigned for governor, he explicitly asserted that he would respect the will of the voters regarding the death penalty.  So much for that promise.  Instead, Newsom disregarded the voters in favor of his personal opinion and granted leniency to those facing the death penalty, including serial killers, cop killers, mass shooters, baby killers and sexual sadists.

In doing so, Newsom damaged the very fabric of our criminal justice system -- trial by jury -- where community members, not just one person in a position of power, make decisions affecting life and liberty.  Newsom's unilateral decision to ignore jury verdicts imposing the death penalty is not just an arbitrary exercise of power, it is a gross miscarriage of justice.

In support of his moratorium, Newsom also made broad sweeping statements, often cited by the American Civil Liberties Union and other death penalty opponents, including cautions about racism and claims that some on death row may be innocent.  If Newsom has concerns about specific cases, he should examine those cases individually rather than granting mercy to everyone on death row.  After all, Newsom has the powers of clemency and commutation as a remedy if he sees actual proof that someone was wrongfully convicted.

But looking at the facts of cases isn't something Newsom seems to want to do.  Why?  It could be because the facts are so horrific that one cannot justify leniency to these killers.

Prior related posts:

April 23, 2019 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Justice Denied: The Harmful and Lasting Effects of Pretrial Detention"

The title of this post is the title of this notable new "evidence brief" from the Vera Institute of Justice.  Here is its overview:

The pretrial population — the number of people who are detained while awaiting trial — increased 433 percent between 1970 and 2015.  This growth is in large part due to the increased use of monetary bail.  But pretrial detention has far-reaching negative consequences.  This evidence brief presents information on the way that pretrial detention is currently used and summarizes research on its impacts.  These studies call into question whether pretrial detention improves court appearance rates, suggests that people who are detained are more likely to be convicted and to receive harsher sentences, and indicate that even short periods of detention may make people more likely to become involved with the criminal justice system again in the future.  The brief concludes by highlighting strategies that some jurisdictions have employed to reduce the use of monetary bail and increase pretrial release.

April 23, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Monday, April 22, 2019

No new criminal law cert grants, but still possibilities for a notable SCOTUS week ahead

The Supreme Court granted cert on some notable cases via this order list list morning, the most notable involving questions of how federal employment discrimination laws apply to LGBT employees.  But, for the second Monday in a row, there is little of interest on this list for those of us who obsess over (just) criminal law matters.  However, all is not lost for the week as the Court has on tap for oral argument three criminal justice cases over the next two days.  Via SCOTUSblog:

On Tuesday, the justices hear oral argument in Mitchell v. Wisconsin and Rehaif v. United States.

On Wednesday, the justices hear oral argument in Quarles v. United States.

Of course, the SCOTUS oral argument on census questions scheduled for tomorrow will be sure to overshadow everything else on the docket this week. But, importantly, the Court has also indicated that it will be releasing opinions tomorrow morning, and that means we might get the long-awaited ruling in Gundy v. US concerning federal SORNA and the application of the nondelegation doctrine in this context.  The long wait for Gundy has me thinking something big is afoot in that case (though that might also mean we do not get the opinion for still a few more months).

April 22, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, April 21, 2019

"Misdemeanors by the Numbers"

The title of this post is the title of this notable new article now available via SSRN authored by Sandra Mayson and Megan Stevenson.  Here is its abstract:

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue.  But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research.  This Article represents the most substantial empirical analysis of misdemeanor case processing to date.  Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

The resulting portrait reveals a system that disproportionately impacts poor people and people of color.  Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction.  There were substantial racial disparities in case-filing rates across locales and offense categories.  The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted.  The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice.  At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice.  As appreciation for the significance of low-level law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

April 21, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (5)

Friday, April 19, 2019

"When in Rome... on Local Norms and Sentencing Decisions"

The title of this post is the title of this interesting new empirical paper now on SSRN authored by David Abrams, Roberto Galbiati, Emeric Henry and Arnaud Philippe. Here is its abstract:

In this paper, we show that sentencing norms vary widely even across geographically close units.  By examining North Carolina's unique judicial rotation system, we show that judges arriving in a new court gradually converge to local sentencing norms.  We document factors that facilitate this convergence and show that sentencing norms are predicted by preferences of the local constituents.  We build on these empirical results to analyze theoretically the delegation trade-off faced by a social planner: the judge can learn the local norm, but only at the cost of potential capture.

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

Thursday, April 18, 2019

Can and will Kentucky's Gov pioneer a (terrific) new institution by creating a "sentencing integrity unit"?

The question in the title of this post is promoted by this interesting local AP article headlined "Tennessee, Kentucky govs talk up criminal justice reform."  Here is the portion of the piece prompted the post:

Tennessee Gov. Bill Lee said Wednesday that he has started evaluating his first clemency plea from a death row inmate, who is slated for execution next month.  Lee made the comments at a forum alongside fellow Republican Gov. Matt Bevin of Kentucky about criminal justice reform at Belmont University's College of Law....

Kentucky hasn't executed any inmates in more than a decade, well before Bevin took office.  But the first-term governor says he has seen no need to wait until he's leaving office to grant pardons to prisoners, as is often customary for governors.  "I think if a person is worthy of being pardoned now, why should they have to wait four years?" Bevin said.  "To me, that's crazy."

Both governors outlined criminal justice priorities and initiatives in an event co-hosted by Men of Valor and Right on Crime.  Bevin said he plans to create a sentencing integrity unit, saying mistakes just get made in sentencing.

He wondered out loud whether to grant prisoners re-entering society a one-year free pass for public transportation.  "I'm convinced something like that could work and that would go a long way at no real cost to anybody to fixing a problem that is a real problem," Bevin said.

For a host of reasons, effective sentencing reform requires structural changes to our criminal justice system as well as substantive ones. And the idea of a "sentencing integrity unit," committed institutionally to identifying and seeking to remedy the "mistakes [that] get made in sentencing," seems to be a terrific structural change. The name suggested for this unit suggests it would be modeled on the many dozens of "conviction integrity units" now in operation around the nation doing critical work seeking to remedy wrongful convictions. (The National Registry of Exoneration has lots of good information on conviction integrity units at this link.).

I sincerely hope Gov Bevin creates a sentencing integrity unit ASAP and that it gets all the political and practical support it will need to be maximally effective.  I also hope Gov Bevin will promote this great idea to other chief executives and other criminal justice officials.  Notably, a number of local prosecutors have done pioneering work in the development of conviction integrity units, and they can have an important comparable role here.  And, as noted in this post last year, Philly DA Larry Kraser and other new prosecutors have been taking an active role reviewing old sentences in various ways.  As I see it, Governors and prosecutors and sentencing commissions and every other official sworn to help achieve justice in a jurisdiction ought to devote at least some portion of time and resources double-checking to make sure past sentences still being served do not become a marker and source of injustice. 

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

Wednesday, April 17, 2019

Lawyers, guns and vagueness: how will SCOTUS look to get out of this Johnson mess?

With apologies to the late great Warren Zevon, I cannot help but riff on the all-time greatest song with lawyers as the first word of its title as I think about the Supreme Court's scheduled oral argument this morning in United States v. Davis.  Over at SCOTUSblog, Leah Litman has this extended preview of the argument under the title "Who’s afraid of the categorical approach?," and it provides some context for my pop-culture reference: 

Davis is the latest in a string of cases stemming from Johnson v. United States, the 2015 decision invalidating the Armed Career Criminal Act’s residual clause (Section 924(e)(2)) as unconstitutionally void for vagueness....  [T]he now-defunct residual clause defined a violent felony as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”... 

And last term, Sessions v. Dimaya invalidated a provision worded similarly to ACCA’s residual clause — Section 16(b), the federal criminal code’s general definition of “crime of violence.” Section 16(b) defined a crime of violence as “any other offense that is a felony and 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.”  That brings us to DavisDavis involves a provision, Section 924(c)(3)(B), that is identical to Section 16(b).  Section 924(c) creates a graduating set of penalties for using a firearm “during and in relation to any crime of violence.”

But why would the two statutes, Section 16(b) and Section 924(c), be interpreted differently if they are worded the same way?  In arguing that Section 924(c) is not void for vagueness even though Section 16(b) was, the government makes a few points.  None of them completely distinguish the two provisions.  For example, the government invokes the canon of constitutional avoidance, which says that courts should interpret statutes in ways that avoid the statute being unconstitutional.  That argument also applied to Section 16(b) in Dimaya.  The government also maintains that the best interpretation of Section 924(c) is that it calls for a circumstance-specific determination about whether a defendant’s actual offense conduct satisfies the substantial-risk test because Section 924(c) “applies only to the conduct for which the defendant is currently being prosecuted.” That claim would ostensibly apply to Section 16(b) as well, or at least some applications of it.  Because Section 16(b) is the general definition of crime of violence, it is incorporated into many different criminal statutes, some of which use the term to refer to the conduct for which the defendant is currently being prosecuted.

But distinguishing Sections 16(b) and 924(c) may not be necessary if the court thinks that upholding Section 924(c) is more important than sensibly distinguishing 924(c) from 16(b)....  There is also the more important question of how courts would interpret Section 924(c) if they didn’t use the categorical approach.  In Dimaya, Thomas and Alito said they wanted to adopt a circumstance-specific approach that assessed the defendant’s actual offense conduct (i.e., the specific facts about what the defendant did). Perhaps unsurprisingly, the government urges the court to adopt that approach to interpreting Section 924(c). The respondent, Maurice Davis, counters that the government’s interpretation of Section 924(c) would be both unpredictable and sweeping, and would leave matters to the whim of juries, generating conflicting results.  Davis also argues that the government’s proposed interpretation of Section 924(c) is inconsistent with the statute’s text, which directs courts to determine whether “an offense” “by its nature” involves a substantial risk, not whether the facts underlying the offense involve a substantial risk.

Another preview of this case and today's argument is available here from Jordan Rubin at Bloomberg Law under the headline "Guns, Violence, Gorsuch in Spotlight in Supreme Court Dispute."

Because Justice Gorsuch was the key swing vote in Dimaya, these previews sensibly highlight his importance in the resolution in Davis. But I will also be interested to see if Justice Kavanaugh has anything notable to say during oral argument today. Because his predecessor, Justice Anthony Kennedy, was not a big fan of Johnson jurisprudence, and because his pal Chief Justice Roberts also seems to favor the government in these cases, I am inclined to guess Justice Kavanaugh will be resistant to extending Johnson. But you never know how his extended history as a circuit judge might shape his views on these kinds of cases.

April 17, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Tuesday, April 16, 2019

"Crimsumerism: Combating Consumer Abuses in the Criminal Legal System"

The title of this post is the title of this interesting-looking new paper recently posted to SSRN and authored by Alex Kornya, Danica Rodarmel, Brian Highsmith, Mel Gonzalez and Ted Mermin. Here is its abstract:

Increasingly, Americans who have contact with the criminal legal system find themselves deprived not just of their liberty but also of their property.  In recent years, advocates have shed light on the court-imposed fines and fees levied on low-income individuals who have contact with the criminal legal system.  But less attention has been paid to the charges imposed on these individuals and their families by the private companies that now administer components of the American criminal and immigration legal systems.  Much criminal legal debt is now owed not to the state, but rather to the vast network of private companies profiteering from the criminalization of poverty and communities of color. As a result, a person in jail who wants to make bail or to call their family, or a parent who wants to make sure their child has basic necessities while in prison, or a teenager who has just been ordered to attend a rehabilitation program, all face the potential trauma not just of incarceration but also of spiraling indebtedness.

This Article seeks to illuminate the commercial abuses occurring in the shadows of the criminal legal system — to draw attention to the problem of “crimsumerism.”  The Article also seeks to ameliorate the problem.  In addition to traditional civil rights-focused claims like § 1983, the Article proposes the application to private correctional businesses of a different set of laws entirely: consumer protection statutes.  If bail bond companies and private debt collectors are routinely engaged in abusive, predatory behavior with respect to individuals who have contact with our criminal legal system, then those businesses should be held accountable through the same laws that would apply were they operating in any other corner of the marketplace.  Holding bail bond agents and debt collectors to account through the Truth-in-Lending Act, the Fair Debt Collection Practices Act, or state Unfair and Deceptive Acts and Practices laws means that some of the most vulnerable consumers in our society will have access to additional protections, while advocates simultaneously work to end mass incarceration and criminalization in the United States.  Over the long term, vigorous enforcement of consumer protection laws will reduce the predatory practices that are currently widespread in the modern corrections industry and ultimately, perhaps, help to eliminate exploitation and other abuses from our criminal legal system altogether.

April 16, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Notable account of similar states now having different approaches to parole and sentencing reforms

Thanks the the Marshall Project, I just saw this recent local article headlined "As Alabama slowed early paroles, it was slapped for its overcrowded prisons."  The piece is notable in the wake of the recent awful Justice Department report, noted here, about the horrible condition of Alabama's prisons.  And I found particularly interesting the lengthy article's contrasting account of parole and sentencing reform practices in a neighboring state:

Mississippi, according to the Sentencing Project, took several steps highlighted in the Sentencing Project report, some which Alabama has yet to consider: It scaled back sentencing guidelines for nonviolent convictions and applied them retroactively, leading to a substantial increase in paroles and accounting for two-thirds of the population reduction.

Alabama, by contrast, did not apply its 2015 prison reform legislation retroactively and the Justice Department, in its scathing review of Alabama’s prison system, has taken note: “In an effort to decrease the prison population, the law created a new class for felonies for low-level drug and property crimes and reformed parole boards. However, it did not apply retroactively, and the effect on Alabama’s prison population has been minimal.”

Bennett Wright, executive director with the Alabama Sentencing Commission, said there “is a lot of discussion” in Montgomery toward possible retroactive considerations toward leniency. “I haven’t heard a legislator stand up and definitively say that, but there has been a lot of conversation about it,” said Wright. “That’s where our immediate future is in evaluating the possible effects and possible reforms on Alabama’s existing (prison) population and population moving forward.”

Mississippi adopted a risk assessment instrument that contributed to doubling of parole approval rate to more than 50 percent. The measures retroactively allowed consideration for parole for more types of crimes where certain “aggravating circumstances” had previously disqualified inmates from consideration.  Also, individuals deemed “nonviolent habitual offender” were allowed to petition for parole consideration.  The changes also allowed parole consideration for people ages 60 and up and who had served at least 10 years and were parolable under other provisions of the law.

Alabama, by contrast, does not have detailed risk assessment measurements, although the Board of Pardons and Paroles considers factors like family ties and employment prospects when considering early parole applications.  

A few decades ago it often seemed states were competing to see who could be tougher on crime.  Encouragingly (though still not consistently), modern politics and practical realities make it essential for states to try be ever smarter on crime.

April 16, 2019 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Monday, April 15, 2019

Extended letter from criminal justice groups calling for robust implementation of the FIRST STEP Act's prison reforms

Via email today, I learned of this notable lengthy letter signed by an array of criminal justice groups addressing key issues related to the implementation of the prison reform components of the FIRST STEP Act.  Because the full letter runs seven pages, I will provide the summary that appeared in the email that I received:

[T]his sign-on letter call[s] for the implementation of the First Step Act in a manner that is consistent with Congressional intent and the text of the statute.  The letter, led by The Leadership Conference on Civil and Human Rights, ACLU, and Justice Rountable, was addressed to the Department of Justice’s National Institute of Justice Director David Muhlhausen, and makes the following three arguments:

(1) DOJ must appoint an appropriate “non-partisan non-profit” host organization with expertise in the study and development of risk and needs assessment tools to select and convene the members of the Independent Review Committee as required by the statute;

     a. NIJ appointed The Hudson Institute — a conservative think tank with no visible expertise or experience in the study and development of risk and needs assessment systems — to host the IRC.

     b. The Hudson Institute has selected at least three members for the IRC whom may not meet the stated criteria outlined in the statute.

(2) Neither the Bureau of Prisons (BOP) security classification system nor the current version of the Post Conviction Risk Assessment (PCRA) should be adopted as a substitute for the Risk and Needs Assessment System required by the statute;

     a. The BOP security classification and the PCRA were not designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.

(3) The Bureau of Prisons must immediately begin providing rehabilitative programming.

Some of many prior related posts on FIRST STEP Act implementation:

April 15, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Notable new advocacy against a "soft-on-crime prosecutorial agenda"

Kimberly Guilfoyle has this notable new Hill commentary under the headline "Avoid the slippery slope of 'soft-on-crime' policies that progressives want." Much of the piece is focused on immigration policy, but other domestic crime and punishment issues are covered, as revealed by these excerpts:

The liberal wing of the Democratic Party is adamant on upending decades of sound law enforcement policies in favor of a radical progressive approach.  Open borders, weak-on-crime prosecutors, and drug injection sites are on the table. It’s time to fight back against these misguided policies and take a stand for the rule of law.

By all measures, Americans are enjoying a golden era of safety.  Violent and property crime offenses have plummeted in the past 25 years.  In a recent Gallup poll, only 30 percent of Americans stated they would be afraid to walk alone at night within a mile of where they live, a historic low for this survey question.

As a former prosecutor, I know a thing or two about policies that keep people safe. To be clear: “Broken Windows” policing works. Locking up criminals works.  Strong sentencing guidelines work.  And yet, Democrats want to completely throw this time-tested playbook out the window to appease their growing progressive base....

Buoyed by liberal, wealthy donors and other special interest groups, progressive prosecutors are gaining traction across the country.  Nowhere is this better illustrated than in Philadelphia where District Attorney Larry Krasner has worked diligently to craft a soft-on-crime prosecutorial agenda.  Under Krasner’s guidelines, a grab bag of criminal offenses no longer are prosecuted.  Heinous crimes such as homicide even have gotten the “kid gloves” treatment because Krasner believes that we should not “overcharge” felons, even those who kill.  As a result, a shocking number of defendants have had their sentences reduced from murder to manslaughter.  Krasner has become the poster child for other progressive district attorneys across the country seeking to undermine the rule of law.

Progressives also have gained steam in their fight to open up so-called “safe” injection sites across the country, where addicts can use illegal street drugs in a medically sanctioned environment. Undeniably, safe injection sites further normalize the use of extreme drugs.  These sites offer no restrictions on who can shoot up and when. Should a minor be allowed to try black tar heroin for the first time uninterrupted? Are law enforcement officers going to be forced to watch while exploitative drug dealers sell dope to vulnerable addicts? How many times can an addict overdose in a single day?

Thankfully, the Trump administration has been pushing back against these radical policies and standing strong for the rule of law.  This means tougher punishments for criminal aliens and more funds for border security measures, stronger measures against those flooding our communities with opioids, and promises of a stringent crackdown on any city that supports a safe injection site.

These policies make our country safer and stronger. Law enforcement should always focus on putting the interests of families and children first.  With this in mind, we can’t let the radical left undue decades of steady progress.  We must stand with President Trump to keep our nation safe.

Perhaps unsurprisingly, this commentary does not mention that, according to Philadelphia Police Department data, violent crime in Philly reportedly went down by five percent in 2018 (though homicides were up 10%), and violent crime has remained at that lower rate so far in 2019 (though with homicide still moving up).  This commentary also, notably, makes no mention of the Trump Administration's support for the FIRST STEP Act.   In this context, I know I am happy to "stand with President Trump" when he stressed at the White House this important point earlier this month: "Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption."

Specifics aside, I highlight this commentary because it provide a useful reminder of how readily we might slide back into the tired-old "soft-on-crime" rhetoric that defined domestic discourse on crime and punishment for decades in the United States. Though there are no shortage of wedge issues in our current political discussions, crime and punishment has a dangerously classic character.

April 15, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

"Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement"

The title of this post is the title of this new empirical article now available via SSRN and co-authored by an especially impressive list of folks: Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell.  Here is its abstract:

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States.  To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment.  This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement.

Our analysis uses a sample of 1,900 cases drawn from 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002.  Contrary to the teachings of Furman, we found that several of California’s “special circumstances” target capital eligibility disparately based on the race or ethnicity of the defendant.  In so doing, the statute appears to codify rather than ameliorate the harmful racial stereotypes that are endemic to our criminal justice system.  The instantiation of racial and ethnic stereotypes into death-eligibility raises the specter of discriminatory intent in the design of California’s statute, with implications for constitutional regulation of capital punishment.

April 15, 2019 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Friday, April 12, 2019

Spotlighting concerns about organization tasked with helping Justice Department develop and implement risk and needs assessment tools under FIRST STEP Act

As reported here on Monday, this week the Department of Justice finally got around to announced the selection of the Hudson Institute as the host the Independent Review Committee required by the FIRST STEP Act to help DOJ develop and implement the Act's risk and needs assessment tools and recidivism reduction programs.  Various folks, including members of Congress, have expressed various concerns about this pick, and this new Mother Jones article effectively reviews why.  The article is headlined "Trump Keeps Celebrating Prison Reform. His Administration’s Latest Move Could Sabotage It," and is worth reading in full.  Here are excerpts (with links from the original):

Now lawmakers of both parties who backed the First Step Act are alarmed at the Justice Department’s latest move, and at least two senators made clear their discomfort during a hearing on Wednesday.  “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Dick Durbin (D-Ill.) said of the Hudson Institute during a confirmation hearing for deputy attorney general nominee Jeffrey Rosen.  “This is a think tank that has a point of view…They published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform.’ This is the same agency that’s now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review [committee] system.”

Sen. Mike Lee (R-Utah) meanwhile described the institute as an “opponent of the First Step Act” and asked whether Rosen would choose another group to focus on the risk assessment tool if he were confirmed. (Rosen did not answer that part of the question but said he supported the First Step Act.)  “I don’t see a lot of good faith in implementing this law right now,” Lee said.  “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”

The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy.  For the First Step Act, it has announced six committee members so far who will develop the risk assessment program.  One of the members is its own chief operating officer, John Walters, who served as a drug czar in the Bush administration.  During his confirmation hearing for that position in 2001, some senators said they were concerned about his views on criminal justice: He had written it was a “great urban myth” that the country was imprisoning too many people for drug possession, and he had suggested that the disparity between crack and powder cocaine sentences was merely a “perceived racial injustice,” implying no real racial discrimination was at play.  In 2015, after he joined the Hudson Institute, he wrote that the concept of “mass incarceration” was also a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.”  These views appear to be in direct conflict with changes in the First Step Act, including reforms to ease some mandatory minimum sentences and retroactively reduce sentencing disparities between crack and powder cocaine offenses. (That said, a Hudson Institute spokesperson says Walters has publicly endorsed reforms to crack sentencing since the early 2000s.)

Some of many prior related posts:

April 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Via 5-4 vote, SCOTUS reverses lower court stay of Alabama execution ... but does so too late for Alabama to carry out execution

As reported in this local article from Alabama, headlined "Execution called off for Christopher Price; SCOTUS decision allowing it came too late," five members of the Supreme Court tried again to enable a state to go forward with a scheduled execution, but its decision was later than it needed to be to allow the execution to go forward last night.  Here is the story:

Christopher Price was set to be executed at 6 p.m. Thursday for the 1991 killing of a minister in Fayette County, but the execution was called off about half an hour before Price’s death warrant expired at midnight.  An order from the U.S. Supreme Court that says the execution could go forward was issued shortly before 2 a.m. Friday, but it was too late for the state to carry it out because of the expired death warrant.  The state will now have to set a new execution date.

In a 5-4 decision the U.S. Supreme Court denied Price’s request for a review of his appeal and for the stay of execution.  Justice Stephen Breyer wrote a dissent, joined by three other justices, objecting to the overruling of decisions by a federal judge and the 11th U.S. Circuit Court of Appeals to stay the execution.

The order came after several appeals Thursday, beginning with Price’s attorneys filing an emergency motion for a preliminary injunction to a federal judge in Mobile asking her to halt the execution around 1 p.m.  Just before 4 p.m. Thursday U.S. Southern District Court Judge Kristi DuBose stayed the execution for 60 days.  She wrote the state had until May 10 to submit evidence in contradiction to Price’s contention that the three-drug execution protocol will cause or is likely to cause him severe pain and that execution by the new method — nitrogen hypoxia — will significantly reduce the substantial risk of severe pain.

The AG’s Office appealed to the U.S. 11th Circuit Court of Appeals, which affirmed DuBose’s ruling and kept the stay in place.  The Attorney General’s Office on Thursday night then appealed to the U.S. Supreme Court, saying in part that Price had not met a deadline for signing up for the new execution method.

The U.S. Supreme Court agreed with the Alabama Attorney General’s Office in its order issued Friday morning.  The majority opinion stated that Price essentially waited too late. “In June 2018, death-row inmates in Alabama whose convictions were final before June 1, 2018, had 30 days to elect to be executed via nitrogen hypoxia ... Price, whose conviction became final in 1999, did not do so, even though the record indicates that all death-row inmates were provided a written election form, and 48 other death-row inmates elected nitrogen hypoxia.  He then waited until February 2019 to file this action and submitted additional evidence today, a few hours before his scheduled execution time.”

At 11:34 p.m. — when the nation’s highest court had yet to rule — the state called off the execution. A statement from the ADOC said, “As a practical matter, the time remaining before the expiration of the death warrant does not permit sufficient time to accomplish the execution in accordance with established procedures."

Alabama Attorney General Steve Marshall released a statement after the announcement was made.  “Tonight, in the middle of National Crime Victims’ Rights Week, the family of Pastor Bill Lynn was deprived of justice.  They were, in effect, re-victimized by a killer trying to evade his just punishment. This 11th-hour stay for death row inmate Christopher Price will do nothing to serve the ends of justice.  Indeed, it has inflicted the opposite — injustice, in the form of justice delayed."...

Samantha Banks, an ADOC spokesperson, said Price’s last request was to be married to his fiancée.  He was married Wednesday in the visitation yard at Holman.  Price was visited by his wife, an aunt, and an uncle on Thursday. Wednesday, he made four phone calls to attorneys, one to his wife, and one to an aunt....

Lynn, a minister at Natural Springs Church of Christ, was fatally stabbed with a knife and sword outside his home in the Bazemore community three days before Christmas in 1991. Court records state Lynn was putting together Christmas presents for his grandchildren, when the power went out.  He walked outside to check the power box when he was attacked. Records state Lynn suffered 38 cuts, lacerations, and stab wounds, and one of his arms was almost severed.  He died en route to a local hospital.  His wife, Bessie Lynn, was wounded in the attack but survived her injuries.

Price, of Winfield, was 19 at the time and was arrested in Tennessee several days after the slaying. He was convicted in 1993.

The short order from the Supreme Court and the lengthy dissenting opinion authored by Justice Breyer and joined by three other justices is available at this link.  Because the key line of the Court's order is reprinted above, I will quote here the last paragraph of Justice Breyer's six-page dissent:

Alabama will soon subject Price to a death that he alleges will cause him severe pain and needless suffering.  It can do so not because Price failed to prove the likelihood of severe pain and not because he failed to identify a known and readily implemented alternative, as this Court has recently required inmates to do.  Instead, Alabama can subject him to that death due to a minor oversight (the submission of a “preliminary” version of a final report) and a significant mistake of law by the Court of Appeals (the suggestion that a report marked “preliminary” carries no evidentiary value).  These mistakes could be easily remedied by simply allowing the lower courts to consider the final version of the report.  Yet instead of allowing the lower courts to do just that, the Court steps in and vacates the stays that both courts have exercised their discretion to enter.  To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system.  To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.

April 12, 2019 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Henry Montgomery (of Montgomery v. Louisiana) denied parole yet again at age 72

A few years ago Henry Montgomery won in the Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively.  But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.  Last year, Montgomery was denied parole as detailed in this prior post, and yesterday he was denied parole again as reported in this local article headlined "After 55 years in prison, Baton Rouge man key to Supreme Court ruling again denied freedom." Here are some details: 

Henry Montgomery's victory at the U.S. Supreme Court in 2016 created a way for hundreds of prisoners like him — those convicted of horrific crimes while juveniles — to earn their freedom by demonstrating their rehabilitation since their youth.  Yet on Thursday, Montgomery was again denied his own opportunity at a life beyond bars.

The Louisiana Committee on Parole denied Montgomery his freedom for the second time in 14 months, a decision that will keep the 72-year-old confined at the Louisiana State Penitentiary at Angola, where he has served 55 years.

At age 17, Montgomery killed East Baton Rouge Sheriff's Deputy Charles Hurt in 1963 and was sentenced to life in prison. But three years ago, the case played the central role in a landmark ruling on juvenile sentences, Montgomery v. Louisiana, in which the U.S. Supreme Court ruled youth offenders cannot be sentenced to mandatory life without parole, even in prior cases.

And though one of the parole board members Thursday morning cited the court's decision directly, noting "children who commit even heinous crimes are capable of change" — it was not enough. The board must vote unanimously for parole to be granted, and one member, Brennan Kelsey, voted against Montgomery's parole.

Kelsey said he believes the septuagenarian still needs to take more classes and complete more programming. "It's your responsibility to continue to work," Kelsey told Montgomery through a video call between Baton Rouge and the Angola prison.  But Montgomery's attorney, Keith Nordyke, responded that he's "not sure what programs are left."

"He's been through all of the programs he could take," Nordyke said.  "He's been a force for change and a force for good."  Nordyke told the board that Montgomery was imprisoned before programming was available to those sentenced to life terms, but even then, Montgomery started a boxing club that gave young inmates a positive outlet.  The lawyer said Montgomery was involved in a Methodist church ministry and organized a literacy program for fellow inmates that included helping them write letters home when they could not read or write themselves.  Since programming became available to Montgomery in recent years, he has completed a variety of classes, like anger management and victim awareness.

"We're not quitting, we're not giving up," Nordyke said, calling the decision Thursday disappointing.  He said he's unsure what his legal team will do next, but he worries about waiting two more years to again go before the parole board, which is the typical waiting period after a decision. Montgomery will turn 73 in June.  "I'm not sure, when you're 73, that two years from now is an adequate remedy for something the Supreme Court ordered," Nordyke said....

The board reconsidered Montgomery's case on Thursday because they conceded an error had occurred during his previous hearing, at which he was first denied freedom. At that hearing in February 2018, two of the three parole committee members voted to deny Montgomery parole, primarily citing Montgomery's lack of classes as reasoning for their vote. But Nordyke requested the board reconsider the case through the board's appeal-like process, alleging the voting members misapplied the laws on youthful offenders in their decision. His request was granted.

The three parole board members on Thursday were different from the three who voted on Montgomery's case last year, yet Kelsey echoed a similar request about more classes, a claim Nordyke called unfair.  He said prison officials worked in the last year to find Montgomery additional classes to take after the last hearing, but it was still not enough. "I do feel like the goalposts are moving," Nordyke said. He said there are classes on parenting and substance abuse that Montgomery has not taken, but those courses would not make sense for a 73-year-old man without children who has never struggled with substance abuse....

The warden of the Louisiana State Penitentiary at Angola, Darryl Vannoy, testified to the board that Montgomery has no issues at the prison.  During Montgomery's 55-year incarceration, prison officials said, he has been written up for breaking rules only 23 times, and only twice in the last 17 years.  The last two write-ups, in 2013 and 2014, were for smoking in an unauthorized area and leaving clothes on his locker. "He's worked at the same job for 25 years," Vannoy said. Montgomery works at the prison's silk-screen shop. "He's not a problem for us. Real low-key guy, you don't hear anything out of him."...

Hurt's grandson, Lafourche Parish Sheriff's Capt. J.P. deGravelles, said while Montgomery has apologized to his family, that was the first time he heard Montgomery take responsibility for the crime. However, he and his aunt, Linda Hurt Wood, asked the parole board on Thursday to keep Montgomery behind bars. "I did go to Angola and I do forgive Henry Montgomery," Wood said. "Mr. Montgomery received a life sentence and so did we. … I will never have my father back."

DeGravelles said their family was disappointed to learn Montgomery would get a second chance in front of the parole board, less than two years from the last hearing. Typically, prisoners have to wait two years before requesting another parole consideration, but the timeline was expedited when the board granted Montgomery's reconsideration appeal — a process about which deGravelles said his family was kept in the dark, yet he was glad to see how it ended up. "Nobody comes out ahead on this," deGravelles said. "Mr. Montgomery is where he needs to be, and that's where he needs to stay."

April 12, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 11, 2019

After veto-proof vote, New Hampshire appears poised to be first state to repeal death penalty legislatively since 2013

For a number of years not too long ago, a number of state legislatures got in the habit of repealing the (usually dormant) death penalty in their states.  Specifically, legislatures in five states over a span of six years led death penalty repeal efforts that become the law in New Jersey (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), and Maryland (2013).  But thanks in part to a voter referendum rejecting a legislative repeal in Nebraska in 2016, it has been a full six years since a state legislature initiated a successful repeal of a state death penalty system.

But today, as reported in this local article, headlined "Death penalty repeal passes NH Senate with veto-proof majority," it looks like New Hampshire might soon be added to the list of states to repeal the death penalty legislatively during the modern era. Here are the details:

A bill to repeal the death penalty in New Hampshire cleared the state Senate with a veto-proof, 17-6, two-thirds margin Thursday, setting the stage for the end of capital punishment in a state that hasn’t executed anyone since 1939.  The House passed the repeal measure, HB 455, on March 3, also by a veto-proof vote of 279-88....

Gov. Chris Sununu has promised to veto the bill, but the votes in the House and Senate signal he most likely will be powerless to stop the repeal from taking effect unless two senators change their minds for the override vote.

The bill revokes the existing capital punishment statute and replaces it with a penalty of life in prison without the possibility of parole for murder of a police officer or other capital offenses.

New Hampshire currently has one person on death row — Michael Addison — who was sentenced to death for the 2006 killing of Manchester police Officer Michael Briggs. Opponents of death penalty repeal argued that Addison will never be executed if capital punishment is repealed, while supporters of the repeal said the law would not be applied retroactively.

Because I am pretty sure no state in the modern era has yet to execute a previously condemned person even after a "prospective only" repeal of the death penalty, I am also pretty sure that it could soon become very unlikely that Michael Addison will be executed for the 2006 killing of Manchester police officer.

April 11, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, April 10, 2019

Spotlighting the important (and problematic) metrics used by prosecutors

This great New York Law Journal commentary, authored by Rachel Barkow, Lucy Lang, Anne Milgram and Courtney Oliva, is headlined "How We Judge Prosecutors Has to Change." Its subheadline highlights its theme: "Despite a wealth of evidence showing public safety can be improved by connecting people to needed social and health services, the internal metrics of prosecutors’ offices do little to incentivize this course of action."  Here is how the piece gets started:

The criminal justice reform movement has rightfully focused on prosecutors as key actors in bringing about much-needed change.  Dozens of reform-minded prosecutors have been elected throughout the country promising to tackle mass incarceration while keeping their communities safe.  They will not succeed unless they redefine what it means to be a “successful prosecutor.”

Today, local prosecutors measure themselves by three core metrics: how many people are indicted on criminal charges, how many cases they try and how many convictions they secure (either through guilty pleas or convictions after trial). For too long, these metrics have been used to decide promotions and raises, and to confer professional capital, dictating who gets the best cases and whose work is celebrated.

Not surprisingly, then, these are the metrics around which prosecutors orient their work and judge their professional self-worth.  This rewards prosecutors who excel at managing large caseloads and processing people through the system. But these metrics do not necessarily recognize the prosecutors who are most effective at achieving public safety and promoting equality.  These goals require additional metrics.  Decisions about what crimes and people to focus on, and whether or not to incarcerate, matter enormously.  The existing metrics take us further away from the goal of building a better criminal justice system.

April 10, 2019 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, April 08, 2019

Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal

This press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty," reports on the latest developments in the highest profile college fraud case I can recall. Here are the basics:

Thirteen parents charged in the college admissions scandal will plead guilty to using bribery and other forms of fraud to facilitate their children’s admission to selective colleges and universities. One coach also agreed to plead guilty.

The defendants were arrested last month and charged with conspiring with William “Rick” Singer, 58, of Newport Beach, Calif., and others, to use bribery and other forms of fraud to secure the admission of students to colleges and universities. The conspiracy involved bribing SAT and ACT exam administrators to allow a test taker to secretly take college entrance exams in place of students, or to correct the students’ answers after they had taken the exam, and bribing university athletic coaches and administrators to facilitate the admission of students to elite universities as purported athletic recruits....

All of the defendants who improperly took tax deductions for the bribe payments have agreed to cooperate with the IRS to pay back taxes.

Plea hearings have not yet been scheduled by the Court. Case information, including the status of each defendant, charging documents and plea agreements are available here.

The charge of conspiracy to commit mail fraud and honest services mail fraud provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of conspiracy to commit money laundering provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $500,000 or twice the value of the property involved in the money laundering. The charge of conspiracy to defraud the United States provides for a maximum sentence of five years in prison, three years of supervised release, and a fine of $250,000. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and other statutory factors.

Though the recitation of statutory maximum sentence sounds really serious, clicking through to the plea agreements reveals that the relatively low dollar amounts in these frauds entails relatively low guideline sentencing ranges. Specifically, for Felicity Huffman the government calculates in the plea agreement a guideline range at offense level 9 to result in a sentence range of 4 to 10 months. Notably, Huffman disputes the amount of "loss or gain" in her offense and suggests her guideline sentencing range is only 0 to 6 months.  And, significantly, the government agrees to advocate for only the low end of its calculated range, so it will be seeking only a four month sentence for Huffman.

I have not yet had a chance to look though all the other plea agreements, but I would guess their terms are comparable.  And especially because all these defendants are already suffering (and will continue to suffer) all sorts of non-traditional punishments, I am not really bother at all that they are not looking at severe guideline ranges.  But perhaps others are, and I welcome their comments on whether and how they think justice is being served in these cases now that we are moving into the sentencing phase.

April 8, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (8)

"Department of Justice Announces First Step Act Implementation Progress"

The title of this post is the heading of this notable and lengthy press release from the US Department of Justice this afternoon.  The full release (and its links) are must reads for anyone and everyone following closely the early implementation of the FIRST STEP Act.  I may need a few posts to fully unpack all the particulars, but I will start here with the start of the release and a few choice specifics:

Today, the Department of Justice’s National Institute of Justice (NIJ), in accordance with the First Step Act, has announced the selection of the nonprofit and nonpartisan Hudson Institute to host the Independent Review Committee. The Committee, whose members will be appointed by Hudson Institute in accordance with the Act’s requirements, will assist the Department as it develops and implements risk and needs assessment tools and evidence-based recidivism reduction programs.

“The Department of Justice is committed to implementing the First Step Act,” said Attorney General William Barr. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.  I am grateful to Hudson Institute for hosting this important Committee, which will lead to better policies at the Department and, ultimately, better outcomes for prisoners reentering society.”

NIJ also announced today that it is contracting with outside experts and leading researchers, including Dr. Grant Duwe Ph.D., Dr. Zachary Hamilton Ph.D., and Dr. Angela Hawken Ph.D., for assistance and consultation as the Department develops the Risk and Needs Assessment System under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and a nationally recognized expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems.  Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies. Each of these experts will bring unique expertise as they augment NIJ and the Bureau of Prisons’ (BOP) efforts to implement the Act.

Today’s announcements by NIJ are the latest in a growing list of accomplishments as the Department works diligently to implement the Act, signed into law in December 2018. Some other highlights of the Department’s ongoing implementation efforts include...

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 826 sentence reductions and 643 early releases....

BOP has issued procedures for “compassionate release” sentence reductions under 18 U.S.C. §§ 3582 and 4205(g) (BOP Policy Number 5050.50), and 22 inmates have already received sentence reductions under this program.

BOP has issued procedures providing for participation in the Second Chance Act home confinement pilot program under 34 U.S.C. 65401(g) (BOP Operations Memorandum 001-2019), and 23 inmates are currently participating, with additional inmates currently being screened for program inclusion.

April 8, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Declining Corporate Prosecutions"

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

Ten years ago, people across the U.S. protested that “too big to jail” banks were not held accountable after the financial crisis.  Little has changed.  Two years into the Trump Administration, newly collected data allows one to assess what impact a series of new policies have had on corporate enforcement.  To provide a snapshot comparison, in its last 20 months, the Obama Administration levied $14.15 billion in total corporate penalties — with 71 financial institutions and 34 public companies prosecuted.  During the Trump Administration, corporate penalties declined.  During its first 20 months, there were $3.4 billion in total penalties, with 17 financial institutions and 13 public companies prosecuted. These trends build over time — in each year, blockbuster cases come and go, creating swings in fines.  However, consistent with these data, this Article describes changes in written policy, practice, and informal statements from the Department of Justice that have cumulatively softened the federal approach to corporate criminals.

This Article also describes continuity between administrations.  A rise in corporate declinations, for example, represents a continuation of Obama Administration policy.  A decline in use of corporate monitors similarly reflects prior policy.  The steady and low level of individual charging in corporate cases, reflects an ongoing lack of success of efforts to prioritize individual prosecutions, exemplified by the 2015 “Yates Memo.”  That policy, like others, has now been formally relaxed.  This series of DOJ corporate prosecution policy changes have been accompanied by important institutional shifts.  For example, high-level vacancies within the DOJ and other enforcement agencies may compromise ability to coordinate resolution of complex cases. 

This Article concludes by proposing structural changes, such as an independent corporate enforcement functions, to enhance capacity and prevent pendulum shifts in the administration of enforcement.  How we handle corporate crime goes to the root of power imbalance in the economy that produced the financial crisis.  Ten years gone, if we still have not learned the lessons of the last financial crisis, then the next one cannot be far ahead.

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