Thursday, December 05, 2019

Lots of notable headlines as possible resumption of federal executions approaches

As noted in this AP piece, on Monday night the US Department of Justice formally asked the Supreme Court to stay or vacate a lower court preliminary injunction now blocking scheduled federal executions that are scheduled to take place starting on the morning of December 9.  These developments have, unsurprisingly, started generating ever more news and commentary.  Here are a few piece that caught my eye:

December 5, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Who should oversee implementing the First Step Act?"

The question in the title of this post is the headline of this notable Hill commentary authored by Johanna Markind, who served as an assistant general counsel with the US Parole Commission from 2009 to 2014. Here are excerpts from the piece:

During a Nov. 19 Senate Judiciary Committee hearing, committee Chairman Lindsey Graham (R-S.C.) asked Bureau of Prisons (BOP) Director Kathleen Hawk Sawyer: How does the First Step Act differ from parole, and should the federal government reinstate parole?  With respect, the answers are: There’s no real difference, and it already has.  The issue that Sen. Graham implicitly raised is, who should run parole?

The groundbreaking First Step Act, enacted last December, authorizes early release of federal prisoners who have worked to reform themselves and are deemed low-risk.  The legislation requires BOP to perform a needs assessment on eligible prisoners and recommend programming for each.  The evidence-based programs are designed to reduce offenders’ risk of recidivism — that is, of returning to a life of crime — and increase their chances of successfully re-entering society.  Low-risk offenders who complete their programs are eligible for conditional early release (“home confinement”).

This is a reboot of parole.  Before parole was abolished in the federal system, effective 1987, the U.S. Parole Commission used to evaluate new prisoners, informally recommend programming such as drug treatment, and set tentative release dates.  As the proposed release date approached, the Parole Commission would re-evaluate the offenders in light of considerations, including whether they had completed recommended programming.  If it decided to release the prisoner, it would set release conditions.

A few years ago, an aide to one of the Senate co-sponsors of the First Step Act acknowledged to me that the risk-reduction/early release provisions are effectively parole by another name — albeit a new, improved version incorporating evidence-based practices developed during the intervening years.  To implement the act, the Department of Justice (DOJ) released a new risk-assessment tool (PATTERN) last July.

Unfortunately, as Sawyer admitted, BOP has yet to complete its needs-assessment tool. That could be because BOP is undermanned, as Sawyer testified. Recent coverage in The Hill has suggested the problem was that elements within DOJ are trying to undermine the act. Or, the problem could be that deciding when to release prisoners just isn’t what BOP and DOJ are institutionally designed to do.

Congress discovered a similar problem after it first authorized parole in 1910.  Parole was granted/denied at each federal prison by a board consisting of that prison’s warden, its doctor, and a Washington-based prison superintendent.  The system didn’t work very well, likely because prison wardens and superintendents were more focused on keeping prisoners in than on letting them out.  In 1930, Congress established a Board of Parole separate from the prison system. It, and its successor Parole Commission, oversaw parole until 1987....

BOP’s basic mission is “to protect society by confining offenders.”  Without a doubt, many BOP employees are sincerely working to comply with the act.  Nevertheless, deciding when and under what conditions to release offenders isn’t part of BOP’s mission.  If Congress wants the act’s release provisions implemented effectively, it should assign responsibility to an organization whose mission is consistent with that task.

A revamped Parole Commission is one option.  A rump Parole Commission still exists — it oversees release of prisoners sentenced for crimes committed before November 1987, and sanctions parole violations by that same population. It is naturally much smaller than it was when it oversaw parole for the entire federal prison population, but it could scale up.  To assist in that process, it could be given permission temporarily to rehire retired staff, just as Sawyer mentioned BOP is now doing.  Former Parole Commission staffers have a wealth of institutional memory and experience determining what programming offenders need to increase their chances for successful re-entry, as well as weighing the risks of releasing them.

Reviving the remnant Parole Commission is not the only way to implement the First Step Act effectively.  There are other options.  For example, Congress might create an agency for the purpose.  But, whatever Congress does or doesn’t do, history suggests that giving BOP the keys while charging it to bar the door is unlikely to produce optimal results.

Regular readers may recall this short article I penned a few years ago, titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," in which I described the correction reform proposals then in Congress "as a kind of 'parole light'." Consequently, I think this author is spot on, particularly when she suggests players other than DOJ and BOP ought to be directly involved in FIRST STEP implementation.

Of course, there are many part of the FIRST STEP Act that extend beyond just providing for means for conditional early release, and thus a revamped Parole Commission would be, in my view, only one important part of ensuring the Act achieves its goals and potential.  We also need a well-functioning US Sentencing Commission, and one filled with Commissioners eager to give full and robust effect to all the the Act's ameliorative sentencing provisions.  I also think we need an entity tasked with and focused on addressing collateral consequences and other barriers to effective offender re-entry that can work to undermine whatever rehabilitative progress an offender may have made while serving a prison term.  (In another recent article, titled "Leveraging Marijuana Reform to Enhance Expungement Practices," I made the case for  new criminal justice institution, a Commission on Justice Restoration, that could proactively work on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.)

December 5, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Wednesday, December 04, 2019

Terrific new Intercept series on capital punishment titled "The Condemned"

I received an email yesterday alerting me to exciting news that "The Intercept has published "The Condemned,” an investigative series by award-winning reporters Liliana Segura and Jordan Smith focused on the modern application and history of the death penalty in the United States. Here is more from the email:

The death penalty entered its “modern era” in 1976, when the U.S. Supreme Court upheld a new set of statutes in the landmark decision Gregg v. Georgia. This new Intercept series examines the use of capital punishment since 1976 and is partially based on an analysis of an unprecedented dataset that The Intercept began compiling in the summer of 2016, on all individuals sentenced to die in active death penalty jurisdictions during the past 43 years.

Amazingly, this data did not exist. Previously available information was often flawed, and many states either do not track this data or do so in a haphazard way. The Bureau of Justice Statistics collects demographic and other data about states’ death row populations, but Congress has blocked the public disclosure of this information.

With this new dataset, now available on GitHub, The Intercept is offering journalists, activists, lawyers, and anyone interested in the topic, a single and comprehensive resource covering the state of the death penalty as it exists in the U.S. today. .

“We limited our inquiry to active death penalty states, to focus on capital punishment as it exists today,” write Segura and Smith. “We were curious not only about who had been executed, but how many people had been removed from death row — a sizeable but largely invisible population. We wanted to see how many people had been re-sentenced, commuted, or released; how many had died awaiting execution; and how long people spent on death row. And we wanted to see who is on death row today.”

Their findings show that capital punishment remains as “arbitrary and capricious” as ever –– and “that the ‘modern” death penalty era remains animated by the same racial dynamics that have always defined capital punishment,” writes Segura.

The series’s four initial stories have been written by reporters Jordan Smith and Liliana Segura: in “Counting the Condemned,” Segura and Smith outline the many ways in which capital punishment has failed as a policy, particularly in its racism, arbitrary application and failure to deliver on claims of public safety.

The Abolitionists,” also bylined by Segura and Smith, show how the abolition of the death penalty has become a bipartisan issue — and a national movement;

The Power to Kill,” by Jordan Smith, looks at the pushback against Florida State Attorney Aramis Ayala after she determined that capital punishment is an unjust practice;

and “Death and Texas,” by Liliana Segura, shows that racial disparities on the Texas death row have increased even as death sentences decline.

December 4, 2019 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (5)

"Race and Class: A Randomized Experiment with Prosecutors"

The title of this post is the title of this notable new research just published in the December 2019 issue of the Journal of Empirical Studies and authored by Christopher Robertson, Shima Baradaran Baughman and Megan Wright.  Here is its abstract:

Disparities in criminal justice outcomes are well known, and prior observational research has shown correlations between the race of defendants and prosecutors’ decisions about how to charge and resolve cases.  Yet causation is questionable: other factors, including unobserved variation in case facts, may account for some of the disparity.  Disparities may also be driven by socioeconomic class differences, which are highly correlated with race.  This article presents the first blinded, randomized controlled experiment that tests for race and class effects in prosecutors’ charging decisions.

Case vignettes are manipulated between subjects in five conditions to test effcts of defendants’ race and class status.  In the control condition, race and class are omitted, which allows baseline measures for bias and pilot testing of a blinding reform.  Primary outcome variables included whether the prosecutor charged a felony, whether the prosecutor would pursue a fine or imprisonment, and the amounts thereof.  With 467 actual prosecutors participating nationwide, we found that race and class did not have detectable prejudicial effects on prosecutorial decisions.  This finding, contrary to the majority of observational studies, suggests that other causes drive known disparities in criminal justice outcomes.

December 4, 2019 in Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

New Prez candidate Mike Bloomberg releases new (partial) criminal justice reform proposals

This page on the campaign website of Mike Bloomberg report that yesterday, after "a roundtable discussion with Mayor Chokwe Lumumba and community leaders focused on criminal justice reform in Jackson, Mississippi, Democratic presidential candidate Mike Bloomberg ... unveiled three criminal justice reform policy proposals."  Here is more:

The proposals focus on reducing the U.S. incarceration rate — the highest in the world — and addressing the failings of a criminal justice system that disproportionately harms communities of color. Bloomberg will unveil a comprehensive plan for criminal justice reform in the coming weeks....

The key pillars of Bloomberg’s initial criminal justice reform proposals include:

1. Launching a national initiative to reduce the incarceration of young people, by building on New York City’s success in cutting youth incarceration rates...

2. Expanding federal funding of effective alternatives to adult incarceration and investing in policies that help formerly incarcerated individuals re-enter society, find employment and escape the cycle of crime.

3. Investing in proven, community-based violence-interruption strategies that address the root causes of crime and prevent violent behavior before it occurs.

December 4, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, December 03, 2019

Honored to be helping Ohio Gov. DeWine with new "Expedited Pardon Project"

Fc30ff87-f68e-4eff-8986-b34c9efb8eaa-large16x9_OhioGovernorsExpeditedPardonProjectI am just back from an exciting gubernatorial press conference that was, conveniently, held in the building in which I work.  Ohio Governor Mike DeWine held the press event at The Ohio State University Moritz College of Law because OSU's Drug Enforcement and Policy Center (DEPC) is playing a big role in the Governor's new "Expedited Pardon Project." 

As the name suggests, this project aspires to expedite the process by which people apply for a pardon under Ohio's laws.  The Project was established in collaboration between Ohio Governor Mike DeWine, DEPC and the Reentry Clinic at The University of Akron School of Law.  The universities and the governor’s office have already worked together with the Ohio Department of Rehabilitation and Correction to create an expedited pardon application process, and the project was officially announced by Gov DeWine this afternoon.  This local press article provides some context and particulars:

Saying many ex-criminals deserve “a second chance to reach their full potential,” Gov. Mike DeWine on Tuesday announced a streamlined process for those who have served time in prison or jail to obtain a pardon.

The governor’s Expedited Pardon Project seeks to accelerate the clemency process for those who have proven themselves to become contributing members of society but whose criminal record bars them from employment, housing, or other aspects of their life.

The program is only open to those who have: A specific reason for seeking a pardon; Already been released from prison or jail; Not committed any additional crimes (other than minor traffic violations) in the past 10 years; Made good-faith efforts to pay any restitution or fines they owe; Have a post-offense job history or a compelling reason why they haven’t been working; Performed volunteer work or community service; Not been convicted of a number of disqualifying offenses, including murder, rape, and a number of other violent and/or sex-related crimes....

In some cases, the existing process for obtaining a pardon can take years.  DeWine said he hopes this program will reduce that wait time to six months.

Under the project, law-school students at Ohio State University and the University of Akron will help qualified applicants to prepare their pardon paperwork, then submit their information to the Ohio Department of Rehabilitation and Correction for extensive background checks.  The Ohio Parole Board will then hold a hearing for each applicant, during which victims, judges and prosecutors involved with his or her case can offer their thoughts.  The Parole Board will then vote the same day about whether to recommend clemency to the governor, who alone has the power under the Ohio Constitution to issue pardons....

Neither DeWine nor Annette Chambers-Smith, director of the state’s prison agency, knew how many people are eligible for the program.  DeWine said it will take about a year before he and other state officials can see how the program is working.

To learn more about the Expedited Pardon Program or to apply, visit ohioexpeditedpardon.org.

I have already learned a lot about pardon policies and practicalities in just the last few months as we have worked to help get this new "Expedited Pardon Project" launched.  I am hopeful I will be able to share my continuing education in this space in the months to come (while also reporting on what I hope will be a lot of successful pardon applications). 

December 3, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining"

The title of this post is the title of this new paper on SSRN authored by Andrea Kupfer Schneider and Cynthia Alkon. Here is its abstract:

Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States.  As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight.  Yet we actually know very little about what happens during that process — a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims.

Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system.  More information — more data — would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power.  Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.

December 3, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 02, 2019

DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions

As noted in this post from 10 days ago, a federal district judge last month blocked the scheduled executions of four condemned federal prisoners via this 15-page order based on the contention that the Justice Department's planned execution protocol "exceeds statutory authority."  Not surprisingly, the Justice Department sought review in the DC Circuit, and today via this three-sentence order a panel of judges denied the motion to stay or vacate the lower court's preliminary injunction.  This Reuters article reports on the ruling and its context:

A U.S. appeals court on Monday dealt another setback to plans by President Donald Trump’s administration to resume the death penalty at the federal level after a 16-year hiatus, denying a Justice Department bid to pave the way for four scheduled executions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied the department’s request to overturn a judge’s decision that at least temporarily stalled plans for executing four convicted murderers. The first was scheduled to die on Dec. 9.

U.S. District Judge Tanya Chutkan last month issued a stay putting on hold the planned executions until a long-running legal challenge to the department’s lethal injection protocol can be resolved. The appeals court found that the administration had “not satisfied the stringent requirements” to block Chutkan’s ruling....

The last federal execution took place in 2003. Since then, protracted litigation over the drugs historically used in lethal injection executions prevented the government from continuing the practice.

Shawn Nolan, a lawyer for the men facing federal execution, welcomed the court’s ruling. “The courts have made clear that the government cannot rush executions in order to avoid judicial review of the legality and constitutionality of its new execution procedure,” Nolan said....

Under Trump’s Democratic predecessor Barack Obama, the Justice Department abandoned its previous three-drug protocol due to a shortage of one of them, an anesthetic called sodium thiopental. The legal fight fell dormant during Obama’s tenure but was revived in July. Barr scheduled the executions of five inmates for December and January and unveiled a new protocol that involved using a single drug, pentobarbital, for lethal injections.

Four of the five inmates have joined the 2005 lawsuit. They have argued that a U.S. law called the Federal Death Penalty Act requires the federal government to follow the “manner” of execution prescribed in the state where an inmate was convicted. The law, as a result, prevents the federal government from creating a single nationwide execution protocol, they argued. Chutkan ruled that the condemned inmates were likely to succeed on their claims that the protocol violates the Federal Death Penalty Act, and found that Barr likely had overreached his authority.

Daniel Lewis Lee, a white supremacist convicted in Arkansas for murdering a family of three, was scheduled to be the first of the inmates to be executed, at a federal prison in Indiana on Dec. 9. A fifth inmate who Barr had ordered executed, Lezmond Mitchell, won a stay of execution from another federal appeals court in October.

The panel of the DC Circuit ruling her was made up of Circuit Judges Rogers, Griffith, and Rao.  Given the composition of this panel (which includes a recent appointee of Prez Trump), I suspect the Justice Department will not bother with seeking en banc review and instead will press its case to SCOTUS (as Attorney General Barr promised to do, if needed).  Assuming the Justice Department gets its papers to SCOTUS before the end of this week, the Justices should be able to rule on the matter in some manner before the first scheduled execution on Dec. 9.  Interesting times.

Prior related posts:

December 2, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Intriguing (mostly procedural) criminal justice issues up for SCOTUS arguments as 2019 winds down

The US Supreme Court begins its December sitting on Monday morning, and a handful of cases scheduled for oral arguments over the next two weeks ought to be of interest to criminal justice fans.  Here are the ones that I will be watching (with links and descriptions via SCOTUSblog):

New York State Rifle & Pistol Association Inc. v. City of New York, New YorkNo. 18-280 [Arg: 12.2.2019]

Issue(s): Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.

Banister v. DavisNo. 18-6943 [Arg: 12.4.2019]

Issue(s): Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby.

Guerrero-Lasprilla v. BarrNo. 18-776 [Arg: 12.9.2019]

Issue(s): Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”

Holguin-Hernandez v. U.S.No. 18-7739 [Arg: 12.10.2019]

Issue(s): Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

McKinney v. ArizonaNo. 18-1109 [Arg: 12.11.2019]

Issue(s): (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted; and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.

For the usual reasons, the Second Amendment/gun control case out of New York and the Eighth Amendment/death penalty case out of Arizona seem likely to get the most attention among this bunch.  But, ever the federal sentencing nerd, I am especially interested to see if the Holguin-Hernandez argument might hint at the case being a possible sleeper.  Remarkably, the Justices have not said much of anything about reasonableness review of sentences in over eight years(!) since its March 2011 ruling in Pepper v. US.  And the Justices have not really said anything really important about reasonableness review in a dozen years since the 2007 trio of opinions in Rita, Gall and Kimbrough.  I am not really expecting much from Holguin-Hernandez, but even a the prospect of a thimble of jurisprudential water can be exciting in a reasonableness desert.

December 2, 2019 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, December 01, 2019

Father of Parkland school shooting victim urges state prosecutors to abandon capital prosecution of shooter

This opinion piece from Florida, headlined "Parkland parent: Drop death penalty for shooter, let him rot in jail," provides a notable plea to prosecutors from Michael Schulman.  Here are excerpts:

On February 14, 2018, my son, Scott J. Beigel, was murdered by this active shooter at Marjory Stoneman Douglas High School in Parkland....  I read the Nov. 24 Sun-Sentinel editorial, “Delay the Nikolas Cruz trial or accept his plea,” — and could not agree more.

To put the students and faculty through the trauma of reliving that horrible day is cruel and unnecessary. “Going for the death penalty” will not bring our loved ones back to us.  It will not make the physical scars of those wounded go away.  In fact, what it will do is to continue the trauma and not allow the victims to heal and get closure.

Understand, that in order to get the death penalty, the state has to take the trial for the murder of our family members to conclusion.  In all likelihood, that means many of us would have to testify at the trial and relive February 14, 2018, again and again, as we all sit in a courtroom for weeks.

We would be putting ourselves through this for the chance that the shooter would get what we all believe he deserves: the death penalty.  Yet, even following a trial, the shooter could be sentenced to life without parole — the same sentence the shooter has already agreed to accept for in exchange for a guilty plea.  Pursuing the death penalty means subjecting ourselves to the trauma of a trial, reliving the murder of our loved ones for a result we could have obtained without that trauma.

Now let’s imagine the jury finds that the shooter should be put to death. The average time an inmate in Florida spends on death row prior to execution is more than 16 years, according to the Florida Department of Corrections. During those 16 years of time, there will be numerous appeals. Imagine if the shooter wins just one of those appeals and a court judge orders a new trial. We will then have to go back to court and re-open our wounds by testifying again. This is not healthy. This will not help us heal and get any kind of closure....

To State Attorney Michael Satz, and to the living victims of the Marjory Stoneman Douglas massacre, let the shooter rot in jail for the rest of his life. Let us try and get some closure! Let us try and move forward with our lives.

Prior related posts:

December 1, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, November 27, 2019

Deputy AG Rosen continues his hypocritical attacks on local prosecutors for "nonenforcement of the law"

In this post a few weeks ago, I noted and criticized this speech delivered by Deputy Attorney General Jeffrey Rosen at the Wake Forest School of Law.  In my post, I noted that the speech emphasizes making the reduction of violent crime a priority and then assailed local DAs for giving less attention to non-violent crimes.  The speech also complained about DAs adopting non-prosecution strategies for certain low-level offenses without addressing the fact that the federal government for a full decade has formally or functionally adopted non-prosecution strategies with respect to state-compliant federal marijuana offenses.  

Well, DAG Rosen is at it again, this time with this new Washington Post piece run under the headline "'Social justice reform' is no justice at all."  Here are excerpts:

Unfortunately, a trend is emerging that could threaten the hard-fought progress in public safety. A small but troubling number of state and local prosecutors are vowing that they will not enforce entire categories of core criminal offenses as part of a misguided experiment in “social justice reform.”

A prosecutor has a vital role: to enforce the law fairly and keep the public safe. These purportedly progressive district attorneys, however, are shirking that duty in favor of unfounded decriminalization policies that they claim are necessary to fix a “broken” system.

The Philadelphia district attorney, for instance, has in effect decriminalized thefts of up to $500.  Boston’s district attorney actually campaigned, before her election last year, with a list of crimes her office would not prosecute — including drug distribution, “larceny under $250,” receiving stolen property, trespassing, malicious destruction of property and resisting arrest.

In San Francisco, the new DA has vowed not to prosecute “quality of life” crimes such as public urination and prostitution. And the new DA in Fairfax County said during his campaign that he wouldn’t prosecute as a felony any larceny below $1,500 (ignoring the state threshold of $500), would not seek cash bail for felonies and would charge unlawful immigrants more leniently than U.S. citizens for the same crimes in order to circumvent the immigration consequences of the crimes.

While the Trump administration is dedicated to enforcing federal criminal law, as shown by the record number of violent crime prosecutions during the past two years, not every state crime is prosecutable as a federal offense. Contrary to the belief that inspires these so-called social justice policies, the “system” is not broken. Just as violent crime rates are near historic lows, national incarceration rates have also fallen 13 percent over the past decade, hitting a 20-year low, according to a 2019 report by the Bureau of Justice Statistics.

Those who still believe that certain criminal laws hinder “social justice” should vote for a legislature, not a prosecutor, to address their concerns.  Outright nonenforcement of the law is an affront to the separation of powers.  The legislative branch writes the law. The judicial branch interprets the law. And the executive branch — of which these prosecutors are a part — enforces the law.

Prosecutors have discretion to decide what individual cases to bring and how best to resolve them.  But the categorical refusal to enforce basic laws geared toward public safety goes far beyond prosecutorial discretion, violates the duty to enforce the laws as passed by the legislature and flies in the face of the fundamental concept that no one part of government exercises total control.

Prosecutorial policies that disregard core criminal laws — and the inflammatory rhetoric that often accompanies those practices — also erode respect for the rule of law.  These prosecutors risk demeaning the very institutions they are appointed to lead and fueling mistrust by promoting false narratives about the criminal-justice system and law enforcement.  The prosecutors are essentially flipping the script, casting criminals as victims and police as villains.  This distortion is not only demoralizing to law enforcement but also emboldens hostility toward both the rule of law and those entrusted with enforcing it.

As a general matter, I continue to be intrigued and troubled by an unelected federal prosecutor making proclamations about how elected local prosecutors ought to apply state laws.  Notably, the Philadelphia, Boston and San Francisco DAs all clearly articulated their planned prosecutorial policies during their campaigns and they will continue to be directly accountable to local voters.  But DAG Rosen was not elected by anyone and is not really directly accountable to anyone, and his appointed responsibility concerns only the application and enforcement of federal law.

And speaking of federal law, DAG Rosen ought to explain his own work in his own backyard before attacking state and local prosecutors.  Beyond the fact that the federal government has been formally or functionally engaging in "outright nonenforcement" of (state-compliant) federal marijuana offenses, in just Washington DC alone a simple Google search reveals dozens of marijuana offenders advertising in plain sight.  Of course, DAG Rosen is seemingly okay with "categorical refusal to enforce" federal marijuana law in these settings because there are very sound political and practical reasons for federal prosecutors to allocate its limited resources elsewhere.  But, as I commented in the prior post, apparently in the view of DAG Rosen, what is good for the (unelected) federal prosecutors in terms marijuana non-enforcement is no good for the (locally elected) state prosecutors.

Prior related post:

November 27, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

"The Politics of Decarceration"

The title of this post is the title of this new Yale Law Journal article by Rebecca Goldstein which reviews Rachel Barkow's book, "Prisoners of Politics: Breaking the Cycle of Mass Incarceration." Here is the article's abstract:

In Prisoners of Politics, Rachel Barkow convincingly argues that the criminal-justice system is deeply broken: the United States’s incarceration rate is the highest in the world, and there is little evidence that this system, with all its devastating human and monetary costs, is contributing to improved public safety.  Prisoners of Politics argues that at the root of this broken system is electoral politics, and that elected officials (legislators, prosecutors, and judges) will tend toward punitiveness.  The book proposes a range of reforms, most notably the use of expert criminal-justice policymakers who would be insulated from the electoral process and devoted to ensuring that the system promotes public safety and avoids arbitrariness.  The introduction of expertise can certainly help make the criminal-justice system less punitive, and policymakers should heed the book’s detailed policy recommendations.

However, this Review argues that electoral politics are more likely than the book suggests to help bring about criminal-justice reform.  There is nothing inherent about electoral participation’s punitive influence.  To the contrary, we might be at the dawn of a new era of electorally motivated criminal-justice reform.  In the past decade, reform has become orthodoxy in the Democratic Party and has been embraced by significant parts of the Republican Party.  Recent grassroots mobilization and subnational elections provide hope that criminal-justice reformers can achieve significant gains through the electoral process.  Additionally, original public-opinion analysis shows that younger Americans are less punitive than their older counterparts, and evidence suggests that tomorrow’s electorate might be less punitive than the electorate of the late twentieth century.  For those reasons, this Review argues that electoral politics can offer a path forward for those who seek to end mass incarceration.

November 27, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Tuesday, November 26, 2019

Making the case that "progressive prosecutors" are acting "downright conservative" (and should be embraced conservatives)

Lars Trautman has this notable new Washington Examiner commentary under the headline "The criminal justice reforms pushed by ‘progressive prosecutors' are surprisingly conservative." I recommend the piece in full, and here are some excerpts:

The term “progressive prosecutor” has catapulted into the national consciousness and has dominated discussions about prosecutorial reform that it has become nearly synonymous with the idea of reform itself....  But strip away the “progressive” branding of the policies and the left-leaning personalities advocating on their behalf, and most of these initiatives are not intrinsically left-wing. Indeed, some even look downright conservative.

One of the reforms instituted by Philadelphia District Attorney Larry Krasner, the poster child of the "progressive prosecutor" movement, provides one particularly emblematic example.  In 2018, Krasner ordered his prosecutors to consider the costs of incarceration associated with each sentencing recommendation. With its potential to deter unnecessarily lengthy sentences, the policy was a natural fit within Krasner’s larger push to fight mass incarceration.  Yet if you remove that description and Krasner’s name, the proposal, framed as an innovative way to extend consideration of taxpayer dollars to government decision-making, looks like something straight out of a fiscal conservative’s playbook.

Nor does it take much imagination to envision even more dramatic “progressive” reforms as part of a conservative prosecutorial platform.

Take, for instance, Suffolk County District Attorney Rachael Rollins’s decision to make alternatives to prosecution the default disposition for a host of low-level misdemeanors. This charging policy has appealed to the activist Left as a step toward a fairer, more restrained criminal justice system.  Yet with its redirection of scarce government enforcement resources to the pursuit of more serious offenses, a prosecutor could just as easily promote the policy as an effort to enhance government efficiency and improve public safety, two hallmarks of traditional conservatism.

Although no national movement or label as powerful as that of the “progressive prosecutor” has coalesced on the political Right, the handful of Republicans bucking aspects of the traditional prosecutorial paradigm shows that the potential for other conservatives to do so is not purely theoretical.

In Florida, for example, State Attorney Melissa Nelson ousted an incumbent in part by stressing the need for reforms geared toward smarter, fairer prosecutions, many of which she has since delivered — including Florida’s first conviction integrity unit.  Likewise, District Attorney Constance Filley Johnson won election in Texas while associating herself with the conservative criminal justice reform movement.  Barry Johnson, another Texas district attorney, explicitly rejected the label “reform” yet nevertheless dismissed hundreds of misdemeanor cases in order to reduce the jail population and save taxpayer money.

Conservatives shouldn't allow these right-leaning reformers to remain somewhat rare examples.  Voters across the ideological spectrum continue to support criminal justice reform by wide margins, and, as the high-profile actions of "progressive prosecutors" show, district attorneys are in a position to deliver real change.  Ceding prosecutorial reform to liberals would put conservatives on the wrong side of an electorate hungry for a break in the status quo.

And while that fate may seem politically attractive to Democrats, they should resist the urge to encourage it.  Attempting to make the liberal vision of prosecutorial reform its only possible manifestation is a recipe for ensuring that it never reaches millions of Americans.  Vast swathes of the country have no interest in anything remotely associated with the phrase “progressive.”  Thus, prosecutorial reform will only reach at least half the country if it has a more conservative cast and bent.  Many of the same policies that reduce mass incarceration also make us safer and save taxpayer money.  Undermining a conservative district attorney because he or she emphasizes the latter is self-limiting to the movement.

November 26, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Monday, November 25, 2019

"Americans Now Support Life in Prison Over Death Penalty"

0yzatku5k0ulnkgz9tmofaThe title of this post is the headline of this new report from the polling organization Gallup.  Here is some of its text:

For the first time in Gallup's 34-year trend, a majority of Americans say that life imprisonment with no possibility of parole is a better punishment for murder than the death penalty is.

The 60% to 36% advantage for life imprisonment marks a shift from the past two decades, when Americans were mostly divided in their views of the better punishment for murder.  During the 1980s and 1990s, consistent majorities thought the death penalty was the better option for convicted murderers.

The Oct. 14-31 survey was conducted before a Texas state court halted the scheduled execution of Rodney Reed in mid-November. A number of prominent politicians and celebrities joined legal activist groups in lobbying Texas officials to spare Reed amid new evidence that could exonerate him.

Even as Americans have shifted to viewing life imprisonment without parole as preferable to execution, a majority still favor use of the death penalty, according to Gallup's long-term death penalty trend question, which was updated in an Oct. 1-13 poll.  That question, first asked in 1936, simply asks Americans if they are "in favor of the death penalty for a person convicted of murder," without providing an alternative option. Currently, 56% of U.S. adults say they are in favor of the death penalty for convicted murderers in response to this question.

Support for the death penalty, as measured by the historical Gallup question, has been steady over the past three years.  However, it is down seven percentage points from 2014, the last time Gallup asked the life imprisonment versus death penalty question.  The percentage in favor of using the death penalty has been lower than it is now, most notably during the mid-1960s through early 1970s.  A 1966 survey found 42% of Americans in favor and 47% opposed to the death penalty, the only time more have expressed opposition than support....

Since 2014, when Gallup last asked Americans to choose between life imprisonment with no parole and the death penalty, all key subgroups show increased preferences for life imprisonment.  This includes increases of 19 points among Democrats, 16 points among independents, and 10 points among Republicans.

Five years ago, most Democrats already favored life imprisonment to the death penalty, but now nearly eight in 10 do.  Independents' preferences have flipped, from being slightly pro-death penalty in 2014 to favoring life imprisonment now.  Republicans remain in favor of the death penalty, but to a lesser degree.

Republicans are one of the rare groups in society to indicate a preference for the death penalty over life imprisonment.  Political conservatives (51%) are another.  Democrats and political liberals (77%) are two of the subgroups most likely to believe life imprisonment is a better punishment for murder than the death penalty.  Postgraduates (73%), nonwhites (72%) and young adults (70% of those aged 18-29) are other groups who widely believe life imprisonment is preferable to execution.

Two-thirds of women, versus 53% of men, advocate punishing convicted murderers by means of life imprisonment rather than the death penalty.

Americans' opinions of the death penalty, which have shown many shifts over the past 80 years, continue to evolve.  The percentage of Americans who are in favor of the death penalty, generally, has fallen to 45-year lows.  And when given an explicit alternative, for the first time in at least 30 years, more say life imprisonment with no possibility of parole is a better punishment for murder than the death penalty.

As public opinion has changed on the death penalty, so has state law.  Five states have abolished the death penalty this decade, leaving 29 where it is legal.  Several states where the death penalty is legal have instituted moratoriums on its use or are considering abolishing it. Many recent cases that have cast doubt on death penalty convictions in light of new evidence may be helping to move public opinion away from it.

November 25, 2019 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

An early review of an eventful first year for the FIRST STEP Act

Though the official one-year anniversary of the passage of the FIRST STEP Act is still four weeks away, I suppose it is not too early for some review and reflection on the eventful year that was.  Here is a new NBC News piece in this spirit which has this lengthy full headline: "The First Step Act promised widespread reform.  What has the criminal justice overhaul achieved so far?  The law's effects are real almost a year later, experts say.  But some are concerned whether the bipartisan alliance that produced it can hold together."  I recommend this lengthy piece in full, and here are excerpts:

Nearly a year after the First Step Act's passage, NBC News spoke to over a dozen people, including former and current elected officials, liberal and conservative advocates, and formerly incarcerated individuals, among others, who championed the reforms. They all agreed that the law's effects are tangible, and many believe the bipartisan coalition that produced it appears durable.

“I think the biggest win is that this is now a safe issue after years and years and years of the two parties trying to use criminal justice as a way to tear each other down,” said Jessica Jackson, co-founder of #cut50, a bipartisan criminal justice reform nonprofit.

However, some are skeptical the alliance can hold. Many of the next steps advocates have underscored as necessary to bring about true change, like reexamining lengthy sentences for violent offenses and restructuring policing practices, may be a tougher sell. "As some people might say, it's easier to kind of agree on some of the low-hanging fruits, but the higher you reach, the more difficult consensus is going to be,” said Tim Head, the executive director for the Faith & Freedom Coalition, a conservative nonprofit that supports the act as well as other criminal justice reform efforts.

More than 3,000 inmates have been released and another roughly 1,700 people convicted of crack cocaine offenses have seen their sentences reduced thanks to the First Step Act, according to data from the Federal Bureau of Prisons and the U.S. Sentencing Commission....

But the effects of the act's other major provision — the relaxing of the notorious "three strikes" rule to mean a 25-year sentence, rather than life in prison, for three or more convictions — are so far difficult to measure. A year in, little data has been collected around how many people had been sentenced under the new guidelines.

The act also a required the development of a new risk assessment tool that aims to determine which inmates are most likely to re-offend if released and to identify ways to assist those who are released. It was completed in July. Meanwhile, roughly 16,000 federal prisoners have enrolled in drug treatment programs created by the act, according to the Justice Department.

The success — or limitations — of the tool and the new programs still remain to be seen, but advocates say the overall represent a major shift in thinking. "It's part of wider system transformation from one that was based on gut instinct and anecdotes and headlines to decisions that are made based on evidence and research," said Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit.

However, he added, the nuances of implementation matter. "We're talking about human behavior and it's never going to be a perfect assessment of someone's readiness for release nor a perfect judgment about the length of time they deserve to spend behind bars for the purposes punishment," he said.

Head, the executive director of the Faith and Freedom Coalition, said the act's changes, which also include mandating BOP train its 31,000 employees on de-escalation techniques and mental health awareness, intended to shift "the culture of our federal system from pure punishment, to one of at least considering rehabilitation in a much more meaningful way."...

Advocates for the First Step Act, particularly left-leaning ones, described its reforms as historic but modest. True change will require looking to the heart of the system — police interactions and what happens inside courtrooms, experts said. Right now, black Americans are more likely to be arrested for the same activities as white Americans, and more likely to be prosecuted, convicted and sentenced to longer jail terms....

To make a more significant dent in the nation’s prison population, attention must shift toward the roots of mass incarceration, said Tony J. Payton Jr., a Democrat and former Pennsylvania state lawmaker who championed state-level criminal justice reforms. “We’ve got to basically dismantle that entire system,” said Payton, who is now affiliated with the 20/20 Bipartisan Justice Center, a national and bipartisan coalition of black criminal justice reformers.

Payton's list of targets, however, points to some of the remaining contentious matters in criminal justice reform that could threaten the bipartisanship needed to implement them, such as sentencing reform for both non-violent and violent offenders, eliminating mandatory minimums, reforming police departments and eliminating prosecutorial immunity.

November 25, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Maryland Gov grants parole to juve LWOPers, marking first such parole in state in nearly a quarter century

I am pleased to report on this Baltimore Sun article headlined "Larry Hogan grants parole to juvenile lifers, the first time a Maryland governor has done so in decades." Here are details:

For the first time in 24 years, individuals sentenced to life in a correctional facility for crimes they committed before turning 18 are being paroled by a Maryland governor.  The action by Gov. Larry Hogan, a Republican, hasn’t been exercised since the administration of William Donald Schaefer, Maryland’s governor from 1987 to 1995.  It comes after courts have weighed in on juvenile sentencing and state lawmakers have attempted to remove the governor from the process in recent years.

Hogan’s decision to implement parole for juvenile lifers comes after 24 years of rejections for this group by the previous three governors, a trend that started with Gov. Parris Glendening in 1995.  “The governor talked about this issue in his original campaign, and it’s something that he gives serious attention to,” Hogan Administration Deputy Legal Counsel Chris Mincher said in an interview with Capital News Service.

Navarus Mayhew, 42, is scheduled to be released this month after 24 years in prison for first-degree murder, robbery and gun charges.  Robert Davis, 54, who served 37 years for first-degree felony murder and handgun charges has been recently released, a Maryland Department of Public Safety and Correctional Services spokesman said Thursday.  Shawn Delco Goodman, 42, will likely be released in December after 27 years behind bars for first-degree murder and robbery charges, according to Maryland Parole Commission records. Hogan approved paroles for two of the men and allowed the third to happen without his signature.

Prisoners sentenced to life in prison as both adults and juveniles have been released through other measures of executive clemency, like commutation, which allows the governor — rather than the parole commission — to set the terms of release.  Until the Hogan administration, parole hadn’t been implemented for any lifer — adult or juvenile — since Gov. Schaefer, a Democrat and Glendening’s immediate predecessor.  A number of inmates’ life sentences had been commuted, however....

In 2016, the ACLU of Maryland filed a federal class action lawsuit against Hogan on behalf of the Maryland Restorative Justice Initiative and three incarcerated juvenile lifers.  The three juvenile lifers in the ACLU suit are not the 2019 parolees.  The lawsuit states that Maryland’s process of juvenile lifer parole denied “meaningful opportunity for release,” therefore violating constitutional protections against cruel and unusual punishment.

There are currently more than 300 individuals sentenced to life who are imprisoned for crimes they committed before the age of 18 in Maryland facilities.  The ACLU suit is pending....

Hogan has commuted the sentences of four juveniles and 17 adults as of last month, and has approved parole for eight adult and three juvenile lifers.  Nine other individuals were released for medical parole.  This happens when a lifer is chronically ill and expected to die, and are no longer considered a threat to society.  They are released to a hospital, hospice care or family members....

There have been attempts to remove the governor’s hand from the state’s process in recent years.  In 2017, parole reform legislation that would dismiss the governor from the process was passed in the state House of Delegates, but failed to advance in the Senate.  This past session, a similar bill made little headway in either chamber.

Legislators are turning their eyes to 2020 — some with the hope that more advancement could be made this time around.  The bill’s former House sponsor, Del. Pam Queen, D-Montgomery, said in an interview with Capital News Service last month that there are plans for similar legislation in the upcoming session, and is looking to the Senate and its new president, Bill Ferguson, D-Baltimore, to determine what will or won’t make it through....

In 2018, Hogan signed an executive order addressing juvenile lifers specifically, requiring that the governor weigh the same elements as the Maryland Parole Commission when considering parole, as well as the inmate’s age at the time of the offense and any signs of maturity or transformative rehabilitation.

UPDATE: A helpful reader made sure I saw this follow-up editorial from the Baltimore Sun headlined "Kudos to Maryland’s Gov. Hogan for paroling three ‘juvenile lifers,’ but we wish he weren’t involved at all." Here are excerpts:

We applaud Gov. Larry Hogan’s decision to honor the recommendations of the Maryland Parole Commission and allow the release of three men sentenced to life in prison for crimes committed as minors.... [I]t’s been almost a quarter century since this last occurred — since William Donald Schaefer held the governor’s post — and Mr. Hogan deserves praise for having the common sense to take action where his largely Democratic predecessors haven’t.

Forgive us, however, if the tribute is tepid.

The men Mr. Hogan allowed to be paroled — two by direct approval, and a third by declining to deny parole — amount to less than 1% of those currently in Maryland correctional facilities serving life sentences for crimes committed when they were under 18. And the action was a long time coming.  It’s been more than three years since the ACLU of Maryland filed a federal class action suit against Mr. Hogan on behalf of a different set of juvenile lifers, claiming the state’s parole process denies them “meaningful opportunity for release" in violation of the Eighth Amendment’s ban on cruel and unusual punishment.  That case is still pending in the courts.

And, as we’ve said numerous times, we’d prefer Mr. Hogan weren’t required to take any action at all.  Maryland is one of only three states in the country, alongside Oklahoma and California, that requires the governor’s input in parole decisions, unnecessarily politicizing the process.  In 47 other states — many far less progressive than Maryland — the parole commission is trusted to review and assess an inmate’s suitability for release on its own. That’s how it should be here, as well.  The state legislature has for several years sought and failed to pass bills removing the governor from the process.  A similar measure is under consideration for the legislative session starting in January, and we urge its passage.

November 25, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of comments from SCOTUS on various issues in holiday week order list

Order lists from the Supreme Court so far this Term have been mostly free of short rulings or separate statements from the Justices.  But this morning, the Court issued this order list full of comments in the form of a per curiam GVR in a First Amendment case from the Ninth Circuit and a number of statements about denials of review.  One of the denials came in the delegation case involving sex offender registries from last Term, Gundy, and Justice Kavanaugh has a short comment in a companion case.  Here is how it starts:

I agree with the denial of certiorari because this case ultimately raises the same statutory interpretation issue that the Court resolved last Term in Gundy v. United States, 588 U.S. ___ (2019).  I write separately because JUSTICE GORSUCH’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.

Criminal justice fans are likely to be most interested in a statement by Justice Sotomayor in a capital case from Arkansas in which cert was denied.  Here are parts of her three-page statement:

After Isom was granted parole three years into his sentence, Prosecutor Pope met with the Office of the Governor to express his concern and to inquire whether Isom could somehow be returned to prison, but to no avail.

Seven years later, a jury convicted Isom of capital murder in a case presided over by Pope himself — now a Drew County judge.  Isom sought postconviction relief, which was denied, also by Judge Pope....

The allegations of bias presented to the Arkansas Supreme Court are concerning. But they are complicated by the fact that Isom did not raise the issue of Judge Pope’s prior involvement in his prosecutions, either at his capital trial or for nearly 15 years thereafter during his postconviction proceedings.  Although the Arkansas Supreme Court did not base its recusal decision on this point, it is a consideration in evaluating whether there was an “unconstitutional potential for bias” in this case sufficient to warrant the grant of certiorari.  I therefore do not dissent from the denial of certiorari.  I write, however, to encourage vigilance about the risk of bias that may arise when trial judges peculiarly familiar with a party sit in judgment of themselves. The Due Process Clause’s guarantee of a neutral decisionmaker will mean little if this form of partiality is overlooked or underestimated.

November 25, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, November 24, 2019

How quickly could litigation over federal execution procedures get to SCOTUS?

The question in the title of this post is prompted by this AP article serving as follow-up to this past week's news, noted in this post, that a federal district court has halted pending scheduled federal executions based claim that planned execution protocol "exceeds statutory authority."  The AP piece is headlined "DOJ would take halted executions to high court" and here are excerpts:

Attorney General William Barr told The Associated Press on Thursday that he would take the Trump administration’s bid to restart federal executions after a 16-year hiatus to the Supreme Court if necessary. Barr’s comments came hours after a district court judge temporarily blocked the administration’s plans to start executions next month. The administration is appealing the decision, and Barr said he would take the case to the high court if Thursday’s ruling stands.

He said the five inmates set to be executed are a small portion of 62 death row inmates. “There are people who would say these kinds of delays are not fair to the victims, so we can move forward with our first group,” Barr said aboard a government plane to Montana, after he met with local and federal law enforcement officials in Cleveland.

The attorney general unexpectedly announced in July that the government would resume executions next month, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. Some of the chosen inmates challenged the new procedures in court, arguing that the government was circumventing proper methods in order to wrongly execute inmates quickly.

U.S. District Judge Tanya S. Chutkan put the cases on ice while the challenge plays out. She said in a Wednesday evening ruling that the public is not served by “short-circuiting” legitimate judicial process. “It is greatly served by attempting to ensure that the most serious punishment is imposed lawfully,” she wrote.

Her ruling temporarily postpones four of the five scheduled executions beginning next month; the fifth had already been halted. It’s possible the government could win an appeal in time to begin executions Dec. 9, but that would be an unusually fast turnaround.

“This decision prevents the government from evading accountability and making an end-run around the courts by attempting to execute prisoners under a protocol that has never been authorized by Congress,” said the inmates’ attorney, Shawn Nolan. “The court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method.”...

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. Barr said in July that the Obama-era review had been completed, clearing the way for executions to resume.

He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

Chutkan said in her opinion that the inmates’ legal challenge to the procedure was likely to succeed because the Federal Death Penalty Act requires that federal executions employ procedures used by the states in which they are carried out.

On Thursday, Barr defended the protocols, saying the Bureau of Prisons has been testing and conducting practice drills ahead of the first execution. He would not say where the cocktail of drugs would come from. “I was kept advised and reports were given to me, scientific tests, the drills they are running through,” Barr said.

Those chosen were among inmates who had exhausted their appeals, and the cases were forwarded to senior Justice Department officials who reviewed the cases and made recommendations to him, Barr said....

The death penalty remains legal in 30 states, but only a handful regularly conduct executions. Texas has executed 108 prisoners since 2010, far more than any other state. Though there hasn’t been a federal execution since 2003, the Justice Department has continued to approve death penalty prosecutions, and federal courts have sentenced defendants to death.

I was certain that DOJ would be inclined to appeal this ruling to the DC Circuit and even to SCOTUS as needed in order to try to move forward with executions.  But I am quite uncertain about just how quickly this litigation (and other litigation surrounding these capital cases) would move forward.  It is not uncommon for capital litigation to move though federal courts quickly on the eve of a scheduled state execution, but that often comes after an array of issues have first been reviewed by state court and often come with a deferential standard of review under applicable law.  It has been a very long time since any federal courts have had to consider any modern claims for relief on the eve of a scheduled federal execution. I have no idea if DOJ is going to press for an expedited appeal schedule or if the DC Circuit or SCOTUS will be inclined to fast-track these matters.

Though I am not following all of the relevant litigation, I assume that objections to the federal execution protocol is just one of a number of claims being brought by the death row prisoner with executions dates. As flagged in this post from July, I am especially interested to know how these particular defendants were put in the front of the execution queue and whether this selection process was constitutionally sound. And I suspect the lawyers representing those of federal death row have a lot of other question they are bringing to court in this process.

Prior related posts:

November 24, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, November 22, 2019

"Let’s pardon prisoners, not turkeys"

Regular readers know that I cannot let a holiday season go by without remarking repeatedly on the fact that clemency grants for cleverly named Turkeys are more consistent and predictable than for actual human beings this time of year.  I will start this season's clemency kvetching by spotlighting some passages from this new Washington Post commentary by Mark Osler with the same headline as the title of this post:

At some point before Thanksgiving, President Trump will likely pardon a pair of turkeys.  The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter.

It’s painful to watch.  Worse, it mocks the raw truth that the federal clemency system is completely broken. While those two turkeys receive their pardons, nearly 14,000 clemency petitions sit in a sludgy backlog. Many of the federal inmates who have followed the rules, assembled documents, poured out their hearts in petitions and worked hours at a prison job just to pay for the stamps on the envelope have waited for years in that queue....

There is a deep sadness in all this: the graceless show of “pardoning” turkeys; the endless pile of files somewhere; the bizarre, tragic and wrong belief that a central constitutional power of the presidency has been delegated to a single well-meaning celebrity....

The Trump administration inherited a clemency review process that is seemingly designed to result in good cases not getting to the president.  Bureaucrats in the Office of the Pardon Attorney — which is buried deep in the Justice Department — review the cases when petitions are received.  Part of their job is to solicit the view of local prosecutors, the very people who sought the sentence in the first place, and Justice Department standards direct that the views of those prosecutors be given “considerable weight” in determining a recommendation.  From the start, there is a thumb on the scale.  That reviewer passes the case to the pardon attorney, who passes it to an official in the office of the deputy attorney general, who passes it to the deputy attorney general himself.  Then it goes to a staffer in the White House counsel’s office, then to her boss and finally to the president.  There is no evidence this system is working at all.  It is a pipe with seven valves that all must be opened at once by seven busy people with very different interests; we shouldn’t be surprised that nothing is flowing through.

Meanwhile, a more informal clemency process has emerged. This one is simple: A television channel, Fox News, makes recommendations directly to Trump, an avid watcher.  Most recently, two military officers received full pardons and another had his rank restored via this route. Previous recipients of Fox News-Trump clemency have included Joe Arpaio, I. Lewis “Scooter” Libby and Dinesh D’Souza.  I don’t begrudge any of them the break they received (though others do).  Alexander Hamilton was right to call clemency “the benign prerogative”; at worst, it produces mercy. My argument is for more clemency, not less.  The problem is that we have two systems, one formal and one informal, that both fail to deliver the level of mercy our history of retribution and over-incarceration requires.

November 22, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 21, 2019

Senators Cornyn and Whitehouse introduce RE-ENTER Act to enable federal judges to issue "Certificate of Rehabilitation" to former offenders

As detailed in this press release, "U.S. Senators Sheldon Whitehouse (D-RI) and John Cornyn (R-TX) today introduced the Recognizing Education, Employment, New Skills, and Treatment to Enable Reintegration (RE-ENTER) Act, which would allow federal judges to issue a Certificate of Rehabilitation to acknowledge an eligible offender who has successfully reintegrated into society." Here is more about this interesting legislative news via the release:

These certificates can help formerly incarcerated individuals find jobs and housing and help prospective employers or landlords determine whether an applicant has been rehabilitated. "Reformed offenders who have served their time have the best chance of staying out of trouble and becoming productive members of society if they can secure a foothold in a job and find housing," said Sen. Whitehouse. "Our bill would follow the successful example set by states that vet people with criminal records to determine whether they have earned a Certificate of Rehabilitation."

“Most incarcerated individuals will be released at some point, and we need to encourage them and give them every tool necessary to be productive members of society,” said Sen. Cornyn. “The housing benefits and job opportunities that these certificates can help make available to former inmates will help us ensure that those who get out of prison will stay out of prison.”

Background:

In at least 16 states and the District of Columbia, state court judges have the power to issue certificates of rehabilitation to address the impact of state convictions. These certificates signal that a recipient has successfully reintegrated into society and no longer poses a significant risk of reoffending. Just like with the First Step Act, Congress can learn from states’ success.

Additionally, this legislation would:

  • Allow eligible offenders to petition the appropriate district court for a certificate;
  • Direct courts to consider various factors to determine whether a certificate is appropriate, including the crime of conviction, activities and education, efforts at employment and restitution, and other current conditions;
  • Permit federal prosecutors to weigh in with the district court and allows courts to appoint federal public defenders to assist the petitioner;
  • Require federal agencies and courts to consider the certificate when making housing, benefits, and eligibility determinations for other programs;
  • And express the sense of Congress that a certificate should help former inmates with licensing, housing, and employment determinations, protect employers who hire recipients of certificates, and contribute to pardon and clemency efforts.
In addition to Senators Cornyn and Whitehouse, the bill is cosponsored by Senators Mike Lee (R-UT), Patrick Leahy (D-VT), Chuck Grassley (R-IA), Dick Durbin (D-IL), Thom Tillis (R-NC), Chris Coons (D-DE), Rob Portman (R-OH), Richard Blumenthal (D-CT), Mike Crapo (R-ID), and Joni Ernst (R-IA).
The bill is endorsed by Prison Fellowship, the National District Attorneys’ Association, #Cut50, Americans for Prosperity, Law Enforcement Leaders to Reduce Crime & Incarceration, and the Justice Action Network.

Here is the full legislation and a one-pager for downloading:

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

Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority"

As explained in this Politico article, a federal district "judge has blocked the scheduled executions of four federal death row inmates, effectively freezing the Trump administration’s effort to resume imposing the death penalty in a federal system that saw its last execution more than a decade and a half ago."  Here is a link to the ruling and a summary from this press account: The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials planned to carry out starting next month.

The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials planned to carry out starting next month. The only other execution that officials had put on the calendar, also for December, was blocked last month by the 9th Circuit U.S. Court of Appeals.

In July, Attorney General William Barr announced plans to resume executions at the federal penitentiary in Terre Haute, Ind. He suggested the practice had been allowed to languish for too long and said it would deliver justice in cases involving what he called the “worst criminals.” Barr announced a new federal death penalty protocol that would use a single drug, pentobarbital, in lieu of a three-drug “cocktail” employed in the most recent federal executions.

In the wake of Barr’s announcement, a series of death row prisoners joined a long-dormant legal challenge to that previous method and asked Chutkan to block their execution under the new protocol until their legal challenges to it were fully adjudicated.

In her ruling Wednesday, Chutkan said the death row inmates appeared likely to prevail on their arguments that the new protocol violates longstanding federal law because the procedures to be used vary from state law. A 1994 federal statute says federal executions shall be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”

Justice Department attorneys argued that the use of lethal injection was sufficiently similar regardless of the drugs used or other details of the execution protocol, but Chutkan ruled that the law likely requires federal authorities to adopt the same drugs or drugs and a similar process.

“Requiring the federal government to follow more than just the state’s method of execution is consistent with other sections of the statute and with historical practices. For all these reasons, this court finds that the FDPA [Federal Death Penalty Act] does not authorize the creation of a single implementation procedure for federal executions,” wrote the judge, an appointee of President Barack Obama. “There is no statute that gives the [Bureau of Prisons] or DOJ the authority to establish a single implementation procedure for all federal executions,” Chutkan added.

In granting the injunction, Chutkan noted the obvious fact that permitting the executions would deprive the inmates of their ability to pursue their legal challenges. She also turned aside the Justice Department’s claim that time was of the essence, noting that revisions to the federal death penalty protocol languished for years after shortages developed of at least one drug used in the earlier cocktail.

The earliest of the five executions that federal officials planned to carry out in the coming weeks was scheduled for Dec. 9. “While the government does have a legitimate interest in the finality of criminal proceedings, the eight years that it waited to establish a new protocol undermines its arguments regarding the urgency and weight of that interest,” the judge wrote.

When AG Barr announced the planned resumption of executions back in July and set five execution dates, I fully expected that some or all of the executions would be delayed by litigation. This particular basis for delay strike me as especially interesting because it will force the Justice Department to debate whether to appeal this ruling or to just try to adjust its protocols in light of the concerns expressed in this ruling. Either way, I am now inclined to confidently predict that we will not see a federal execution in 2019 and probably not in 2020.

November 21, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 20, 2019

Might we reasonably expect marijuana reform or other criminal justice issues to be engaged in tonight's Dem debate?

There is another Democratic Primary Debate slated for tonight, taking place in Atlanta, and I suspect one would get quite drunk if drinking every time someone says quid pro quo as suggested by Rolling Stone.  What I am not sure of is whether someone would be very drunk or very sober if the drinking word was marijuana.  As the title of this post suggests, there are reasons to think this debate might engage the issues given that former VP Joe Biden was talking about gateway drugs recently, and the Judiciary Committee of the House of Representatives today moved forward the Marijuana Opportunity Reinvestment and Expungement (MORE) Act.   

Of course, you can keep up with marijuana reform action at my Marijuana Law, Policy & Reform blog, and here are some highlights from recent posts over there that should be especially relevant to folks discussing the modern policies and politics of reform:

November 20, 2019 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences | Permalink | Comments (0)

Medical disputes before federal court as high-profile, white-collar prisoner seeks compassionate release

This NBC News article, headlined "NY prosecutors suggest former WorldCom CEO Bernie Ebbers is faking illness to get out of jail time," reports on an interesting dispute as a high-profile defendants seeks a sentencing reduction thanks to the FIRST STEP Act.  Here are the details:

Federal prosecutors say 78-year-old former WorldCom CEO Bernie Ebbers may not be in as bad physical shape as indicated in court filings seeking his early release from prison due to health concerns.

In a letter Monday to U.S. District Judge Valerie Caproni, Assistant U.S. Attorney Gina Castellano cites a note from a prison psychologist who listened in on phone calls between Ebbers and his daughter in recent weeks.  Joy Ebbers Bourne has said in a sworn declaration that her father has dementia.  “In the calls, he was alert, aware and oriented to person, place, time and situation,” the psychologist is quoted as saying, adding that Ebbers was asking about his daughter’s efforts to get him out of prison.  He is being held at the prison medical center in Fort Worth, Texas....

In a response filed in court Tuesday, Ebbers attorney Graham Carner said the alleged discrepancies can be explained by factors that have nothing to do with fakery.  “It is commonly known that people suffering from dementia (which can have many forms) can experience symptom fluctuation (i.e., ‘good days and bad days’),” Carner wrote.

The response, which notes that cognitive issues have not been the focus of Ebbers’ legal motion, cites other parts of his medical records that Carner says demonstrate Ebbers “has a substantially diminished ability to provide self-care in prison.”  Carner noted that Ebbers has suffered multiple falls, and that according to the medical report, he weighed just 148 pounds last week, down from 200 pounds in July.  “Objective medical findings show that his age and medical condition qualify as extraordinary and compelling reasons for compassionate release,” Carner wrote.

Caproni, a judge on the U.S. District Court for the Southern District of New York, had given the government until Monday to supply the additional medical data, most of which were filed under seal.  In addition to asking for any tests as to whether Ebbers was malingering, or faking his memory loss, the judge asked for information on Ebbers’ rapid weight loss — the former bouncer has reportedly withered to around 160 pounds.  Castellano said an abdominal ultrasound performed late last month found “no definitively worrisome or sonographically acute findings,” but further tests are scheduled next month.

Ebbers has served about 13 years of his 25-year sentence for orchestrating the $11 billion accounting fraud by the defunct telecommunications company. With good behavior, he is scheduled for release in 2028.

Before the FIRST STEP Act, Ebbers' request for compassionate release almost surely would have been rejected by the Bureau of Prisons and that would be the end of the matter. Now, thanks to FIRST STEP, Ebbers' can get a federal judge to consider these matters.

November 20, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 19, 2019

Lots of interesting discussions of FIRST STEP Act (and Jeffrey Epstein) during Senate Judiciary's BOP oversight hearing

This morning, the US Senate Committee on the Judiciary held an hearing titled "Oversight of the Federal Bureau of Prisons" with a single witness testifying.  That witness was Dr. Kathleen Hawk Sawyer, the new Director of the Federal Bureau of Prisons, and the full two-hour hearing can be watched at this link.  

Dr. Hawk Sawyer submitted this lengthy written statement, and it covers a lot of BOP ground.  It also concludes with an extended discussion of FIRST STEP Act implementation efforts, and here is a snippet from that part of the written testimony:

The Bureau has made great progress in implementing the FSA.  We appreciate the considerable work of the Department of Justice (Department) in the implementation process, as well.  In particular, the Department’s National Institute of Justice has been instrumental in collaborating with us as we move forward aggressively to ensure this important criminal justice reform is appropriately and effectively implemented.  We similarly appreciate the ongoing work of the Independent Review Committee as they advise the Attorney General on the new risk and needs assessment systems required under the FSA.

We have listened to the important comments of the many interested stakeholders — from crime victims to a broad array of advocacy groups.  The statutory timelines in the FSA were formidable, and placed before us many challenges, but I am proud to say that the Bureau and the Department rose to that challenge.  And we continue to remain focused on the full, fair, and balanced implementation of the FSA....

With the President signing the FSA into law on December 21, 2018, several provisions became immediately effective. Despite the government shutdown, the Bureau rapidly developed guidance and policies to ensure appropriate implementation.  The retroactive application of sentence reductions under the Fair Sentencing Act resulted in over 2,300 orders for release, with the release thus far of over 1,600 of those inmates.  Staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change.  As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.

Guidance regarding the expanded Reduction in Sentence (RIS or compassionate release) provisions were issued in January 2019. Since the Act was signed into law, 109 inmates have received Compassionate Release.  The re-initiation of the Elderly Offender Pilot from the Second Chance Act of 2008 was issued in April 2019.  We currently have 358 inmates approved for the pilot, with 273 already on Home Confinement. The balance are pending their Home Confinement placement....

In accordance with the FSA, the Attorney General on July 19, 2019, released the Department’s report on the Risk and Needs Assessment System.  The new Risk Assessment system — the Prisoner Assessment Tool Targeting Estimated Risk and Needs or PATTERN — has been developed by the Department and is currently undergoing fine-tuning as we consider feedback from stakeholders.  In the interim, the BOP has conducted extensive training for its staff on the key elements of the tool such that they are prepared to assess inmate risk in accordance with statutory deadlines.  The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.

During the hearing, FIRST STEP Act implementation issues were raised by a number of Senators. And lots and lots of other topics were also covered.  This AP article published yesterday, headlined "Federal Prison System Plagued by Abuses," provides a review of the range of BOP management issues were brought up during the hearing.  And this ABC News piece, headlined "Bureau of Prisons director set for grilling on Capitol Hill in wake of Epstein, Bulger deaths," names in its headline some of the high-profile prisoners of concerns to lawmakers.   Not surprisingly, especially with news of charges being brought against two guards for falsifying records, the death of Jeffrey Epstein was raised by a number of Senators.

As criminal justice nerd, I enjoyed all the issues raised throughout the entire oversight hearing, and I was encouraged by both the questions raised by many Senators and the answers provided by Dr. Hawk Sawyer.  And I especially enjoyed the surprising discussion during the early part of the hearing (starting just before minute 34) of Senator Lindsay Graham asking about "reinstituting parole in the federal system."  I am not sure why Senator Graham is now saying that reinstating parole is "something [Congress] should look at," but I am really intrigued by and supportive of any such efforts.  A couple of years ago, in this article titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," I explained why I thought "parole might serve as an efficient and effective means to at least partially ameliorate long-standing concerns about mandatory minimum statutes and dysfunctional guidelines" and why sentencing reformers "ought to think about talking up the concept of federal parole anew."  Here is hoping Senator Graham might become a full-throated champion of giving serious consideration to bringing parole back to the federal system.

November 19, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 18, 2019

Interesting look at a federal sentencing judge (and claims of judge shopping) in college admissions scandal cases

This new Los Angeles Times article, headlined "In sentencing Del Mar father, key judge in admissions scandal offers insight into future decisions," provides an interesting behind-the-scenes looks at one of the judges now at the center of upcoming sentencing in the Varsity Blues case. And toward the end of the piece there is an interesting discussion of purposed efforts to "judge shop." Here are excerpts:

It was a sentencing hearing for Toby Macfarlane, a Del Mar insurance executive who will spend six months in prison for conspiring to have his children admitted to USC as bogus athletic recruits. But on Wednesday, all eyes were on U.S. District Judge Nathaniel M. Gorton, who is also overseeing the cases of 15 other parents who’ve maintained their innocence in an investigation of fraud, graft and deceit in the college admissions process.

Lori Loughlin’s legal fate will be decided in Gorton’s courtroom. So, too, will those of many other high-profile names embroiled in the scandal, among them Loughlin’s husband, fashion designer Mossimo Giannulli, and Bill McGlashan, a San Francisco Bay Area financier.

Six attorneys for other parents charged in the scandal filled a bench in Gorton’s third-floor courtroom, taking notes and trying to gain insight into how the 81-year-old jurist views the allegations of fraud and bribery the government has brought against clients of William “Rick” Singer, the Newport Beach consultant who oversaw a scheme to defraud some of the country’s most elite universities with rigged entrance exams, fake athletic credentials and bribes.

They got their answer. In Gorton’s first sentencing in the case, he delivered a withering dressing-down and a penalty to match. Macfarlane’s conduct — paying Singer $450,000 to slip his son and daughter into USC as phony athletes — was “devastating,” Gorton said. Macfarlane’s crimes may have been possible because of his wealth, Gorton said, but his actions were no different than those of “a common thief.”

Gorton doubled the sentencing range recommended by the court’s probation department, and committed Macfarlane to prison for six months — the longest sentence handed down in a scandal that erupted in March....

While he didn’t agree with the prosecution’s argument that the high-dollar amount of Macfarlane’s payment should lengthen his sentence, Gorton said Macfarlane’s crimes were nonetheless “serious and caused real harm,” deserving of a harsher sentence than the range recommended by the probation department....

In a sign that defense attorneys see Gorton as handing down harsher sentences than his peers at the courthouse, lawyers for 17 parents charged in the scandal wrote an unusual letter in April to Patti B. Saris, the chief judge for the district of Massachusetts, protesting the government’s intent to add their clients to an indictment that had already been assigned to Gorton.

Calling it “a clear form of judge shopping,” the attorneys said prosecutors so wanted to try their cases before Gorton that they had circumvented the process that assigns cases to judges at random. They qualified their complaint by saying, “To be sure, we deeply respect Judge Gorton.”

But Andrew Lelling, the U.S. attorney for Massachusetts, said in a letter of his own that what those attorneys “fail to say — but of course mean — is that they want a different judge because they perceive Judge Gorton as imposing longer sentences in criminal cases than other judges in this district.” Such a gripe, Lelling said, was a “hail Mary by people who know better.” The parents whose attorneys signed the letter were not, in the end, reassigned to a different judge.

Gorton will sentence four parents early next year who reversed their not-guilty pleas last month: Douglas Hodge, the former chief executive of bond giant Pimco; Michelle Janavs, a philanthropist whose family created the Hot Pocket; Manuel Henriquez, a Bay Area financier, and Henriquez’s wife, Elizabeth. The four changed their pleas after coming under pressure from prosecutors, who warned they could be charged with an added felony count of bribery if they didn’t plead.

U.S. District Judge Indira Talwani, who determined punishments for 11 of the 12 parents sentenced before Macfarlane, handed down sentences ranging from no time at all for Peter Sartorio, a Menlo Park, Calif., frozen foods entrepreneur, to five months in prison for Agustin Huneeus, a Napa, Calif., vintner.

A third judge, Douglas P. Woodlock, sentenced Jeffrey Bizzack, a Solana Beach entrepreneur and the longtime business partner of surfer Kelly Slater, to two months in prison.

November 18, 2019 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (2)

"Movements in the Discretionary Authority of Federal District Court Judges Over the Last 50 Years"

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

From my vantage point, judges’ individual control over their courtrooms remains largely stable.  Updated but similar versions of the problems encountered (and created) by Judge Julius Hoffman now confront our newer, younger, and perhaps better qualified judges.  While federal judges may be less likely to encounter radical, overtly political defendants and government officials trying to wrest control (and public opinion) from them in court, they are more likely to see minority defendants along with accompanying “courtwatchers” who want inequities in the criminal justice system noticed in individual cases.  I will first describe the Chicago Eight (soon to become the Chicago Seven) trial and then explain the new courtwatchers in Part I.

I have witnessed federal judges having lost, primarily since the mid-1980s, much of their earlier control over the criminal justice process in general, but in particular over charging and sentencing decisions.  Judicial discretion and control over a criminal trial is obviously less important when 97.2 percent of federal felony sentences are imposed by the district judge pursuant to a guilty plea negotiated between the government and the defendant, and only 2.8 percent of the sentences that judges impose are after a jury or bench trial.  The power players in the criminal justice system are the folks who determine whether to offer a plea and what plea terms to include.  We live in a world of guilty pleas controlled by prosecutors.  Federal prosecutors determine whom to investigate, whom to charge, and how much punishment to impose.  However, the pendulum has begun to swing back, and federal district judge discretion over criminal sentencing is now on the rise.  I will support these observations, as well as offer some good sentencing news post-Booker, in Part II.

Finally, in Part III, I will raise a relatively new phenomenon — federal district court judges imposing nationwide temporary restraining orders against the federal government. Though this last trend is not limited to or primarily about criminal trials, I think it fairly covered by the topic for today — most of these injunctions involve controversial policies that can, like with the Deferred Action for Childhood Arrivals case, lead to criminal charges.  This legal device allows a single federal judge in a single judicial district to determine federal policy for the entire country, at least until the matter can be resolved by the Supreme Court.  This is one of the few areas where I have seen federal district judicial authority expand over the last few decades.  The Supreme Court has taken very recent notice of this trend, and will likely have something to say about the matter soon.

November 18, 2019 in Booker in district courts, Who Sentences | Permalink | Comments (0)

Sunday, November 17, 2019

Texas Court of Criminal Appeals issues stay of execution so trial court can examine Rodney Reed's "Brady, false testimony, and actual innocence claims"

As noted in this prior post, many questions have been raised about the guilt of Texas death row inmate Rodney Reed, who had been scheduled to be executed on November 20.  But, as this Hill piece reports, that execution was stayed late Friday:

The Texas Court of Criminal Appeals ruled Friday to stay indefinitely the upcoming execution of Texas inmate Rodney Reed, who had been convicted in a 1996 slaying.

Citing an appeal filed by Reed’s attorney’s this week that claimed, among other things, that the state provided false testimony, the court ruled to halt the execution scheduled for Wednesday “pending further order of this Court.”

The decision came shortly after the Texas Board of Pardons and Paroles on Friday unanimously recommended delaying Reed’s execution.

The developments come amid national scrutiny over Reed’s case, as supporters of the inmate say newly uncovered evidence raises serious doubts about his guilt in the case of the killing of 19-year-old Stacey Stites.

Prosecutors accuse Reed of raping and strangling Stites in Bastrop, Texas, more than 20 years ago. However, in an application for clemency, Reed’s attorneys wrote that new evidence has “contradicted and, in all key respects, affirmatively disproven, every aspect of the State’s expert-based case against Mr. Reed” and implicates Stites’s then-fiance.

Efforts to stop the execution have been aided by high-profile calls from celebrities including Beyoncé, Kim Kardashian West, Oprah Winfrey, Rihanna, Questlove and more.

The TCCA's oder is available at this link, and here is a key passage:

On November 11, 2019, Applicant filed the instant subsequent writ application in the convicting court.  Applicant raises four claims in this application: (1) that the State suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) that the State presented false testimony in violation of due process; (3) that Applicant’s trial counsel were ineffective; and (4) that Applicant is actually innocent.

After reviewing the application, we find that Applicant’s Brady, false testimony, and actual innocence claims satisfy the requirements of Article 11.071 § 5.  Accordingly, we remand those claims to the trial court for further development.

November 17, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, November 16, 2019

Another District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A)

I am pleased to be able to report on a great new district court ruling granting a sentence reduction using 18 U.S.C. § 3582(c)(1)(A) in order to under the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  (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)(A) without awaiting a motion by the Bureau of Prisons.  I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.)

This new ruling comes in US v. Urkevich, No. 8:03CR37, 2019 WL 6037391 (D. Neb. Nov. 14, 2019). In this case, Judge Camp begins by noting that because of the severe stacking rules in place at the time of the crime, Urkevich's sentence "(848 months) is forty years longer than the sentence he likely would have received (368 months) if he were sentenced under the law (18 U.S.C. § 924(c)(1)(C)) as it now exists." Then, after noting that the "Government does not dispute that Urkevich has demonstrated post-offense rehabilitation, and the Government does not argue that he poses a current danger to the safety of any other person or to the community," Judge Camp concludes:

If this Court reduces Urkevich’s sentences on Counts III and V to 60 months each, consecutive, he will not be eligible for immediate release.  His sentence would total 368 months, and he would have served somewhat more than half that sentence.  Nonetheless, the Court does not consider the Motion premature.  A reduction in his sentence is warranted by extraordinary and compelling reasons, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed. A reduction in the sentence at this juncture will help Urkevich and the Bureau of Prisons plan for his ultimate release from custody and may assist him in his pending efforts to seek clemency from the Executive Branch.  This Court will not intervene in that process.

After consideration of all the factors set forth in 18 U.S.C. § 3553(a), especially § 3553(a)(2)(A) (“the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”) and § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”), as well as applicable Sentencing Commission policy statements, the Court finds extraordinary and compelling reasons for a reduction of the Defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  The Court further concludes that the Defendant has demonstrated that he poses no current danger to the safety of any other person or to the community. Accordingly, the Defendant’s sentences on Counts III and V of the Indictment will be reduced to 60 months each, consecutive.

The statement above by Judge Camp that the sentence reduction motion here is not premature is a reference to (and disagreement with) the reasoning of Judge Pratt in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), a similar case noted and lamented in this post.  In Brown, the court seemed to essentially conclude that the movant had demonstrated extraordinary and compelling reasons for a sentence reduction and seemed to conclude the 3553(a) factors justified such a reduction, but the court rejected the motion for a reduced sentence seemingly because conforming a reduced sentence based on the terms of current statutory law would not lead to the defendant's immediate release.  I am quite pleased that this Urkevich case recognizes why a congressionally-authorized sentence reduction that is statutorily justified is always timely.

Some prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

November 16, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Prez Trump grants clemency to three military men subject to various war crime prosecutions

As reported in this Military Times piece, "President Donald Trump on Friday granted clemency to three controversial military figures embroiled in charges of war crimes, arguing the moves will give troops 'the confidence to fight' without worrying about potential legal overreach."  Here is more about these grants:

Army 1st Lt. Clint Lorance, convicted of second degree murder in the death of three Afghans, was given a full pardon from president for the crimes.  Army Maj. Mathew Golsteyn, who faced murder charges next year for a similar crime, was also given a full pardon for those alleged offenses.  Special Warfare Operator Chief Edward Gallagher, who earlier this fall was acquitted of a string of alleged war crimes, had his rank restored to Chief Petty Officer by the president.

All three cases had been championed by conservative lawmakers and media personalities as an overreaction to the chaos and confusion of wartime decisions.  But critics have warned the moves could send the message that troops need not worry about following rules of engagement when fighting enemies abroad.

“The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted,” the White House said in a statement. “For more than 200 years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history.”

Pentagon leaders privately had expressed reservations about the moves, but Defense Secretary Mark Esper has declined comment on the rumored actions in recent days. Last week, he said that he had a “robust” conversation with Trump about the proposed pardons and clemency and that “I do have full confidence in the military justice system and we’ll let things play out as they play out.”

The Army announced it will implement Trump’s pardons.... In the wake of Trump’s decision, the official twitter account of Rear Adm. Charles Brown, the Chief of Naval Information, indicated that Navy leaders “acknowledge his order and are implementing it.”

While Gallagher was acquitted of murder and obstruction of justice charges in July, a panel of his peers recommended he be reduced in grade for posing with the body of a detainee, a crime he never denied.

Lorance’s case dates back to a 2012 deployment to Afghanistan, when he ordered his soldiers to fire on three unarmed men riding a motorcycle near their patrol. Members of his platoon testified against him at a court-martial trial, describing Lorance as over-zealous and the Afghans as posing no real threat. He was sentenced to 19 years in prison at Fort Leavenworth, Kansas. In recent years, Lorance and his family had waged a long campaign against his sentence, and found a receptive ear in Trump.

Golsteyn’s case had not yet been decided. He was scheduled for a December trial on charges he murdered an alleged Taliban bomb maker, and burned his remains in a trash pit during a 2010 deployment with 3rd Special Forces Group. Trump’s action effectively puts an end to that legal case before any verdicts were rendered....

Trump overturned a decision by Chief of Naval Operations Adm. Mike Gilday announced on Oct. 29 that preserved Gallagher’s demotion to petty officer first class. Gallagher’s legal team had urged the four-star to show mercy for a highly decorated SEAL whose case was plagued by allegations of corruption inside the Judge Advocate General’s Corps and the Naval Criminal Investigative Service. Gallagher’s court-martial trial for murder and other alleged war crimes collapsed and a panel of his peers convicted him on the sole charge of positing for a photo next to a dead Islamic State detainee, a charge he never denied.

Before the trial kicked off, a military judge booted Cmdr. Christopher Czaplak, the lead prosecutor, for his role in a warrantless surveillance program cooked up with NCIS to track emails sent by defense attorneys and Navy Times. Prosecutors and agents also were accused of manipulating witness statements; using immunity grants and a bogus “target letter” in a crude attempt to keep pro-Gallagher witnesses from testifying; illegally leaking documents to the media to taint the military jury pool; and then trying to cover it all up when they got caught.

In a prepared statement sent to Military Times by attorney Phil Stackhouse, Golsteyn’s family said they were “profoundly grateful” that the president ended the soldier’s prosecution. Stackhouse said Golsteyhn spoke with the president by telephone “for several minutes” on Friday.

“We have lived in constant fear of this runaway prosecution," Golsteyn said in the statement. "Thanks to President Trump, we now have a chance to rebuild our family and lives. With time, I hope to regain my immense pride in having served in our military. In the meantime, we are so thankful for the support of family members, friends and supporters from around the nation, and our legal team.”...

Trump has exercised his pardoning powers often during his administration, including in the case of another soldier earlier this year. Former 1st Lt. Michael Behenna had been paroled from Leavenworth in 2014, after receiving a 15-year sentence for murdering an alleged al-Qaida operative in Iraq in 2009.

And in 2018, he pardoned former Machinist’s Mate 1st Class Kristian Saucier, who spent a year in jail after pleading guilty in 2016 to taking cell phone photos of his work space on board the attack submarine Alexandria ― prohibited, as the entirety of a submarine is considered a classified area.

This official statement from the White House about these clemency grants discusses the cases further and concludes with this paragraph:

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted.  For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country.  These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

November 16, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 15, 2019

SCOTUS grants cert on yet another ACCA case and also on statute of limitation on military rape charges

Via this new order list, the Supreme Court has added four new cases to its merits docket.  The big one of the bunch is a case involving Google and copyright issues concerning computer code, but the others are criminal cases.  One has SCOTUS focused on the application of the Armed Career Criminal Act yet again, and two combined others deals with statutes of limitation.  Here are descriptions of the new criminal cases via this post at SCOTUSblog (with paragraphs rearranged): 

In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets — which Walker had found while cleaning the rooming house that he managed — when responding to reports of drug sales at the house.  Walker argues that the ACCA should not apply to his case. He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.

The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

The justices also granted two requests by the government to weigh in on the statute of limitations for old rape charges against members of the armed forces.  The question arises in the case of Michael Briggs, a captain in the U.S. Air Force who in 2014 was charged with the 2005 rape of a member of his squadron.  Under the version of the Uniform Code of Military Justice that was in effect when Briggs was charged, there is no statute of limitations for rape.  At his court-martial proceeding, Briggs was found guilty, but an appeals court later ordered that the charge be dismissed.  It reasoned that under a 2018 ruling by the same court, the five-year statute of limitations for the version of the UCMJ in effect in 2005 applied to Briggs’ offense.  The court also ruled that a 2006 law that specifically provides that there is no statute of limitations for rape does not apply to rapes committed before 2006.

The government filed a separate petition for review in the case of two other members of the Air Force.  Richard Collins was an instructor at an Air Force base in Texas.  In 2016 he was found guilty of the August 2000 rape of a student in his course.  As in Briggs’ case, an appeals court reversed Collins’ conviction, pointing to a 2018 decision by the same court.  Humphrey Daniels was convicted in 2017 of the 1998 rape of a civilian near the North Dakota Air Force base where he was stationed; his conviction was also reversed.

The government appealed to the Supreme Court, asking the justices to grant both petitions.  The government told the justices that sexual assault is “devastating to the morale, discipline, and effectiveness of our Armed Forces, but also difficult to uncover.”  The request was supported by a “friend of the court” brief by Harmony Allen and Tonja Schultz — the victims of Collins and Daniels. Today the justices agreed to take up the case.

November 15, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

You be the federal judge: what sentence for Roger Stone after his conviction on all seven counts including obstruction, witness tampering and making false statements to Congress?

The question in the title of this is prompted by this criminal justice news emerging from a federal courthouse in DC today: "Roger Stone, an ally of President Donald Trump, was found guilty Friday of lying to Congress and obstructing an investigation into Russia to protect Trump and his presidential campaign."  Here is some more about the case and convictions:

The jury's verdict came after about eight hours of deliberation.  Stone, a fixture in GOP politics, has worked on campaigns stretching back to Richard Nixon's.  Stone is the latest Trump ally to be found guilty in cases sprouting from a special counsel's investigation into Russia's interference in the 2016 election.

The verdict, reached by a jury of nine women and three men, comes amid an impeachment inquiry into allegations that Trump sought to pressure Ukraine into investigating a political rival....  Trump took to Twitter shortly after the verdict was announced. He decried a "double standard" and said law enforcement officials lied, including Robert Mueller, the special counsel who headed the Russia investigation.

Stone's trial ends after a week marked with Nixon quotes, references to the Mafia movie "The Godfather" and a colorful witness who offered to do a Bernie Sanders impression before an unamused federal judge.  The proceedings attracted the attendance of controversial figures, including alt-right firebrands Milo Yiannopoulos and Jacob Wohl.

Michael Caputo, a former Trump campaign adviser who attended the trial, said he was escorted out of the courtroom by a federal marshal for turning his back on the jurors as they walked out.  "Normal Americans don’t stand a chance with an Obama judge and a Washington jury," he tweeted.

U.S. District Judge Amy Berman Jackson allowed Stone to go home as he awaits his sentencing, scheduled for Feb. 6.  A gag order preventing him from talking about the case remains in effect. He and his attorneys did not comment as they left the courthouse....

The proceedings revealed information about the Trump campaign's efforts to seek advance knowledge of emails stolen from the Democratic National Committee, which hurt Democratic presidential candidate Hillary Clinton when Trump was trailing in the polls.  Testimony indicated these efforts involved the candidate himself.

Stone, 67, stood trial on accusations that he repeatedly lied to Congress about his back-channel efforts to push for the release of those emails. He was accused of urging a possible congressional witness to either lie or scuttle his testimony.

"Roger Stone lied … because the truth looked bad for the Trump campaign and the truth looked bad for Donald Trump," Assistant U.S. Attorney Aaron Zelinsky told jurors.

Defense attorneys urged jurors to focus on Stone's state of mind, arguing he did not willfully mislead Congress.  The claim that Stone lied to protect the Trump campaign was "absolutely false," Bruce Rogow told jurors.  "It makes no sense," Rogow said, adding that the campaign was long over and Trump was already president when Stone testified before Congress in 2017. "Why would Stone lie, why would he make stuff up? ... There is no purpose, there is no reason, there is no motive."

Stone was found guilty of seven charges: one count of obstruction of an official proceeding, five counts of false statements and one count of witness tampering. The maximum penalty for all counts totals 50 years in prison, though first-time offenders generally receive significantly lower sentences.

Jurors heard from five government witnesses and saw dozens of emails and text messages that prosecutors said proved Stone lied.  His defense attorneys did not call any witnesses, and Stone, known for his flamboyance and combativeness, did not testify.  The charges stemmed from Stone's interactions with the Trump campaign in the summer of 2016, around the time that WikiLeaks, an anti-secrecy group, began publishing troves of damaging emails about the Democratic National Committee and Clinton.

Prosecutors said Stone lied to the House Intelligence Committee about his efforts to push for the release of those emails.  They said he lied about the identity of the person who tipped him off about WikiLeaks' plans — his so-called intermediary.  They said he falsely denied talking to the Trump campaign about what he learned and falsely told Congress he did not have text messages and emails in which he talked about WikiLeaks.

Prosecutors said Stone sought to silence a witness who could expose these lies by using threatening references from "The Godfather" movie.  Stone urged the witness in multiple emails to follow the steps of Frank Pentangeli, a character in "The Godfather II" who lied to Congress to avoid incriminating Mafia boss Michael Corleone.

In some settings, I would be inclined to predict that an elderly nonviolent first(?) offender is quite unlikely to get a lengthy prison term or even any prison time at all.  But these days and in these kinds of high-profile case, I am never quite sure what to expect or predict.

So, dear readers, what sentence do you think you would be inclined to impose?

November 15, 2019 in Booker in district courts, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (5)

New Jersey commission releases big report recommending numerous big sentencing reforms

As reported in this local article from New Jersey, an "advisory panel that was reinvigorated by Gov. Phil Murphy to study racial and ethnic disparities in the state criminal justice system issued its report Thursday, calling for the elimination of mandatory sentences for those convicted of nonviolent drug and property crimes." Here is more:

The 13-member New Jersey Criminal Sentencing and Disposition Commission — chaired by retired state Supreme Court Justice Deborah Poritz — also recommended that those still incarcerated under such sentences be allowed to apply for early release. In addition, the group is urging lawmakers to adopt a new mitigating sentencing factor for young offenders, as well as a “compassionate release” program for those sentenced to terms of 30 years or more as juveniles.

The commission, which includes designees of senior lawmakers on both political parties, reached its conclusions unanimously, according to the report. “The Commission’s recommendations … reflect a consensus-driven, policy making process that incorporates a wide range of perspectives, including those of judges, prosecutors, defense attorneys, community stakeholders, corrections officials, faith organizations, and victims’ rights advocates,” the report reads.

Murphy on Thursday hailed the work of the commission, and urged the Legislature to put the reforms into bills during the current lame duck session, noting that he will sign them. “This is a comprehensive set of reforms. They will ensure the criminal justice system not only works, but works better and for all communities,” he said. “They meet the call of justice but also our broader goal of fairness.”  State Senate President Steve Sweeney called the recommendations in the report “a long-time overdue.”...

The commission was initially created by Gov. Jon Corzine a decade ago, but his successor, Chris Christie, never made any appointments and the group did not meet. Murphy jump-started the effort in February of last year, a month after he took office, noting that New Jersey “has the nation’s worst disparity in the rates of incarceration between black and white offenders” and that, “We can and must do better.”

The report also recommends a loosening of sentencing restrictions for two more serious crimes, second-degree robbery and second-degree burglary, which currently fall in a classification alongside offenses like murder, carjacking and aggravated arson. According to the report, both offenses are frequently charged even though they incorporate a broad range of conduct, including that which results in no physical injury to the victim.

Under the commission’s recommendation, the period of parole ineligibility for those convicted of such crimes would be reduced to half the sentence, down from the current 85%. The commission said it hoped its recommendations would “replicate the success” of the state’s recent bail reform initiative, in which monetary bail was largely replaced by an assessment of whether someone charged with a crime was likely to show up in court or be a danger to the community if released.

This press release from the Office of Gov Murphy includes supportive quotes from all sorts of state political and criminal justice leaders. I am eager to believe that the widespread support for the work of this state commission increases greatly the likelihood that some or all of its recommendations will become law.

The NJ commission's full report is available at this link, and it is a worthwhile read in full.  Here is the report's "Summary of Recommendations":

1. Eliminate mandatory minimum sentences for non-violent drug crimes.

2. Eliminate mandatory minimum sentences for non-violent property crimes.

3. Reduce the mandatory minimum sentence for two crimes – second degree robbery and second degree burglary – that previously have been subject to penalties associated with far more serious offenses.

4. Apply Recommendations #1, #2 and #3 retroactively so that current inmates may seek early release.

5. Create a new mitigating sentencing factor for youth.

6. Create an opportunity for resentencing or release for offenders who were juveniles at the time of their offense and were sentenced as adults to long prison terms.

7. Create a program, called “Compassionate Release,” that replaces the existing medical parole statute for end-of-life inmates.

8. Reinvest cost-savings from reductions in the prison population arising from these reforms into recidivism reduction and, to the extent available, other crime prevention programs.

9. Provide funding to upgrade the Department of Corrections’ existing data infrastructure to better track inmate trends and to develop partnerships with academic institutions to analyze this data.

November 15, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, November 14, 2019

"Is it me, or is the government releasing less data about the criminal justice system?"

Delayed_bjs_dataThe question in the title of this post is the title of this notable new posting by Wendy Sawyer over at Prison policy Initiative.  I recommend the full extended posting, and here is part of its start and conclusion:

We’ve heard this question from a few advocates and journalists who, like us, depend on the Bureau of Justice Statistics (BJS) and other government data sources for timely information about the justice system.  And while monitoring changes in federal data collections isn’t a core part of our work, we have observed a troubling trend: Since 2017, data releases are slowing down.

We aren’t the only ones who have noticed.  Last month, a coalition representing thousands of academic and nonprofit researchers and advocates wrote to the Office of Justice Programs with questions about missing and delayed data releases as well.

I probably don’t have to convince our regular readers that timely data is essential for identifying both social problems and effective policy solutions — and that it’s especially important in the context of criminal justice, where the human costs are so high.  And admittedly, it’s not news that government justice data has long been less well-funded, less timely, and less comprehensive than, say, labor statistics.

Even so, these publications have slowed even further — and even been curtailed — under the current administration.  To see the extent of this trend, I went through the BJS’ list of publications since 2000 and compared the time between the data collection reference dates and the corresponding report publication dates for six annual report series. I found that there has indeed been a dramatic change in the past several years....

The reasons behind these decisions and delays are unclear — is it funding problems?  Staff shortages?  Changes in leadership?  It could well be any, or all, of these problems.

BJS has been “flat funded” for years, despite the massive growth in the number and size of the correctional agencies they survey, and despite increasing demands for justice system data under laws mandating annual data collection, like the Prison Rape Elimination Act and the Deaths in Custody Reporting Act.  A National Academies publication explains that this has been a problem under both Democratic and Republican administrations, going back decades.

The Crime and Justice Research Alliance and COSSA — the coalition that wrote the October letter to the DOJ I mentioned earlier — suggest that staffing problems may explain the delays.  They write, “[M]any in the criminal justice research community have heard of an alarming decline in the number of BJS staff as a consequence of hiring freezes, staff attrition, and failure to replace departing staff and experts.”  Again, this is an agency that has been chronically underfunded and understaffed relative to the herculean task of collecting and analyzing the nation’s decentralized justice system data.

And then there is the issue of leadership.  With its mandate to produce reliable, large-scale studies with national, state, and local policy implications, effective leadership at BJS requires “strong scientific skills, experience with federal statistical agencies, familiarity with BJS and its products, [and] visibility in the nation’s statistical community,” among other qualities.  That’s according to four former BJS Directors and the President of the American Statistical Association, who wrote to former Attorney General Sessions in 2017 to encourage the appointment of an experienced research director to head up BJS.

That didn’t happen.  Instead, since late 2017, the Bureau of Justice Statistics has been under the leadership of Jeffrey Anderson, whose only prior statistical experience appears to be the co-creation of a college football computer ranking system in 1992.  On criminal justice, all I could find in his history were a handful of 2015-2016 articles in which he argues against criminal justice reform.  In a National Review article, he called Obama-era Washington “tone-deaf on crime,” despite the widespread bipartisan support of criminal justice reform.  Sadly, the problems we’re seeing with data delays and politicized language suggest that the current leadership may not agree about the importance of the agency they lead.

November 14, 2019 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

Tales of extreme state drug mandatory minimums (and non-retroactive reforms) from Florida

The Miami Herald has this lengthy article discussing an array of extreme sentences resulting from Florida's (now somewhat reformed) mandatory minimum drug laws.  The piece is headlined "Hundreds languish in Florida prisons under outdated mandatory minimum drug sentences, " and I recommend it in full.  Here is a taste:

It’s not enough that Jomari DeLeon calls every day, asking her 8-year-old daughter about school and reminding her that “mommy misses you.” The child still asks when she’s coming home, believing her mom’s been gone all these years because of a stint in the military. That would explain the barbed wire surrounding the compound that she visits every month.

In reality, DeLeon is four hours away in this privately run women’s prison in the Panhandle town of Quincy, serving the third year of a 15-year sentence. If she had committed her drug crime in 2016, rather than eight years ago, she would be free by now. Up to 1,000 Florida inmates find themselves in the same legal purgatory....

[DeLeon was involved in two small non-violent drug] deals — a grand total of 48 pills for $225.... Under Florida law in 2013, the possession or sale of about 22 hydrocodone pills — less than one prescription’s worth — would trigger a trafficking sentence of 15 years...

Similar drug cases were playing out across the state. In Orange County in 2009, a man named William Forrester was handed a 15-year sentence for oxycodone trafficking after he was caught falsifying prescriptions to support his habit....

In 2010, a woman named Nancy Ortiz asked an Osceola judge that rehabilitation be included in her sentence to ease her addiction to crack. She had sold two bottles of hydrocodone pills to an undercover cop. Instead, the judge sentenced her to 25 years. “I take no pleasure in imposing this sentence,” the judge told Ortiz. “But I don’t have any discretion in the matter.”

For years, people caught with prescription painkillers in Florida received tougher penalties than those with the same weight in street drugs. In some cases, they received five times the sentence because that’s what the law required....

[P]ublic defenders from around the state went to Tallahassee to lobby the Legislature to change the law .. [and] even the state prosecutors’ association — those pursuing convictions for drug crimes — joined the public defenders in pursuit of lighter sentences for those selling prescription pills. MO<Finally, lawmakers listened. Sen. Rob Bradley, R-Fleming Island, a former prosecutor, sponsored a bill in 2014 that increased the number of hydrocodone or oxycodone pills needed to trigger the lengthy mandatory sentences. To get 15 years for hydrocodone, for example, would now take about 77 pills, rather than about 22....

The Legislature’s 2014 law could not apply to DeLeon’s sentence because, at the time, the Florida Constitution explicitly prohibited changes in sentencing laws to apply retroactively.... [That was changed in 2018 when] voters approved Amendment 11 last year.

At Gadsden Correctional Facility, it was cause for celebration. Another prisoner serving 15 years, also for hydrocodone, told DeLeon that the change in Florida’s Constitution could mean their freedom. “This is exactly what’s going to help us get out of here,” she told DeLeon. DeLeon’s family was so excited for her re-sentencing hearing, they started preparing for her to come home, buying canvasses for her to paint.

In July, however, the judge explained his hands were tied. Her motion for a new sentence was denied because state lawmakers first need to lay out a framework for judges to follow. It’s unclear when, or if, lawmakers will do so.

Earlier this year, lawmakers again increased the number of hydrocodone pills required to trigger mandatory sentences. Bradley, the state senator who sponsored the 2014 drug sentencing change, said he would be open to easing sentences for old drug cases. But he said he doesn’t consider it a priority....

Hundreds of people like DeLeon are in prison serving outdated sentences for hydrocodone or oxycodone trafficking that would not have been handed down if they committed the same crimes today.

One analysis by the Crime and Justice Institute, a nonpartisan group that’s done policy analysis for the Florida Senate, found that up to 640 current inmates fall into this category, while researchers with the Project on Accountable Justice housed at Florida State University found up to 935 inmates. Both estimates have not been previously published.

For one year, it costs Florida $20.7 million to incarcerate 935 people, according to “full operating cost” data from the Department of Corrections. Multiply that expense over their entire sentences, and the cost to taxpayers balloons to more than a hundred million dollars.

November 14, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, November 13, 2019

Attorney General Barr announces "Project Guardian" as part of plan to reduce gun violence

As reported in this Hill piece, the "Department of Justice (DOJ) on Wednesday unveiled a program that aims to reduce gun violence including through the creation of guidelines to prosecute those who make false statements while trying to get a gun." Here is more:

The five-point plan includes coordinated prosecution, enforcing the background check system, improved information sharing, a coordinated response for mental health denials, and crime gun intelligence coordination, according to a DOJ statement.

The department seeks to coordinate prosecution under the "Project Guardian" program by considering federal prosecution for those who were arrested for possessing a firearm, are believed to have used a firearm while committing violence or drug trafficking, or who is suspected of actively committing violent crimes in connection with a criminal organization.

To enforce background checks, attorneys general, in connection with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will create or renew guidelines for prosecuting those who make false statements while trying to get a firearm. Those who have been convicted of violent felonies and domestic violence misdemeanors, among others, will be given special emphasis....

Attorney General William Barr said in a statement that the plan shows the DOJ's commitment to reducing gun violence. "Project Guardian will strengthen our efforts to reduce gun violence by allowing the federal government and our state and local partners to better target offenders who use guns in crimes and those who try to buy guns illegally,” he said.

He also said during a press conference in Memphis, Tenn., that the program would be applied with exceptional "vigor" in areas with high levels of gun violence. "We're going to apply it with special vigor where gun violence is the highest, in places like Memphis," he said....

The attorney general said Wednesday that the administration came up with a series of related legislative proposals, but added they could not move forward due to the probe into the president's dealings with Ukraine. “Unfortunately, our discussions on the legislative aspects of this have been sidetracked because of the impeachment process on the Hill and so we are going forward with all of the operational steps,” Barr said.

“We certainly are always willing to pursue legislative measures that will enhance the fight against violent crime but right now it does not appear to things in Washington are amenable to those kinds of negotiations and compromises,” he added.

Gun violence prevention group March for Our Lives, which was founded after a mass shooting at a school in Parkland, Fla., criticized the program as a "racialized" tough-on-crime plan. "We’ve seen racialized ‘tough on crime’ plans before. It doesn’t work," the group tweeted. "We ought to be tough on injustice, economic oppression and inequality. Our country has a gun violence problem. It’s sources vary, but the common factor is easy access to guns."

I cannot help but wonder if, among the shelved legislative proposals, was some follow up on the talk from a few months ago of draft legislation to expedite the death penalty as part of package response to mass shootings. Even without legislative proposals, the announced "Project Guardian" initiative (set forth in this press release with this linked DOJ guidance memo) provides plenty to wonder about in terms of coming prosecutions and sentencings in the federal system.

As noted in this post, just this past Friday Deputy Attorney General Jeffrey Rosen highlighted in a speech that the current Justice Department has "increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration."  I presume that this uptick in firearm prosecutions will continue and perhaps even accelerate as a result of "Project Guardian."  I would welcome comments from anyone working "on the ground" in the federal criminal justice system about whether and how they think  "Project Guardian" could prove consequential.

UPDATE: The Justice Department has released the text of Attorney General William Barr's remarks in Memphis at the launch of Project Guardian. Here is a snippet:

What we are trying to do is take those Triggerlock principles that were successful in the past and revamp this program, resuscitate it, and double down on it nationwide.

This is a national program.  It will be in every district.  The idea is to use our existing gun laws to incapacitate the most dangerous and violent offenders.  As most of you know, with Project Safe Neighborhoods, which is one of the flagship programs of the Department of Justice, we do go after the armed felons.  But that program is regionally based; we go after particular areas.

Project Guardian is a national initiative to comprehensively attack gun violence through the aggressive enforcement of existing gun laws.

This will be implemented nationwide in every federal district.  We are going to apply pressure with vigor where gun violence is the highest in places like Memphis. Local agencies will be involved, but ATF will be leading this effort.  It will involve all federal law enforcement agencies working closely with our state and local colleagues.

November 13, 2019 in Gun policy and sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

"Defending Progressive Prosecution"

The title of this post is the title of this new book review by Jeffrey Bellin now available via SSRN.  Here is its abstract:

“Progressive prosecutors” are taking over District Attorney’s Offices in cities across the nation, with a mandate to reform the criminal justice system from the inside.  Emily Bazelon’s new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal justice.

This Book Review Essay highlights the importance of Charged to modern criminal justice debates, and leverages its concrete framing of the issues to offer a generally applicable theory of prosecutor-driven criminal justice reform.  The theory seeks to reconcile reformers’ newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous accumulation of prosecutorial power.  It also offers the potential to broaden the movement’s appeal beyond progressive jurisdictions.

November 13, 2019 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

"Usual Cruelty The Complicity of Lawyers in the Criminal Injustice System"

Usual_cruelty_finalThe title of this post is the title of this notable new book authored by former public defender, Alec Karakatsanis.  The publisher, The New Press, provides this accounting of the book: 

From an award-winning civil rights lawyer, a profound challenge to our society’s normalization of the caging of human beings, and the role of the legal profession in perpetuating it.

Alec Karakatsanis is interested in what we choose to punish.  For example, it is a crime in most of America for poor people to wager in the streets over dice; dice-wagerers can be seized, searched, have their assets forfeited, and be locked in cages. It’s perfectly fine, by contrast, for people to wager over international currencies, mortgages, or the global supply of wheat; wheat-wagerers become names on the wings of hospitals and museums.

He is also troubled by how the legal system works when it is trying to punish people.  The bail system, for example, is meant to ensure that people return for court dates. But it has morphed into a way to lock up poor people who have not been convicted of anything.  He’s so concerned about this that he has personally sued court systems across the country, resulting in literally tens of thousands of people being released from jail when their money bail was found to be unconstitutional.

Karakatsanis doesn’t think people who have gone to law school, passed the bar, and sworn to uphold the Constitution should be complicit in the mass caging of human beings — an everyday brutality inflicted disproportionately on the bodies and minds of poor people and people of color and for which the legal system has never offered sufficient justification. Usual Cruelty is a profoundly radical reconsideration of the American “injustice system” by someone who is actively, wildly successfully, challenging it.

This Amazon page about the book provides a "look inside" that includes the introduction explaining that the book is primarily the collection of three notable essays by Alec Karakatsanis that have been previously published.  This recent Intercept piece has an interview with the author that gets set up this way:

Alec Karakatsanis's “Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System” should be assigned reading for every first-year law student.  Published last month by The New Press, the book is an unusually blunt takedown of a system the author never once refers to as a criminal “justice” system.  Litigated with the intellectual vigor of someone who has won a number of landmark fights in federal court, “Usual Cruelty” clearly lays out a case for why our criminal legal system is not broken, but doing exactly what it was designed to do.

At a time when talk of justice reform has become mainstream but risks becoming hollow, and phrases like “progressive prosecutor” contribute to the deception that we are, in fact, making progress, Karakatsanis is clear-eyed about the bigger picture. But while “Usual Cruelty” is ultimately an abolitionist book that calls on people to imagine a world with fewer laws and in which jails and prisons aren’t the default response to all social problems, Karakatsanis is also keenly aware of how lawyers can use the law’s tools to fight the law’s harm.  At Civil Rights Corps, the nonprofit he founded, Karakatsanis takes on cases challenging systemic injustices in the legal system — like cash bail and the systems of fines and fees that keep poor people in jail — which he says have become so “normalized and entrenched” they barely give us pause.

November 13, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, November 12, 2019

Lots of victims/families and former officials urge Trump Administration not to move forward with federal executions

The Washington Post has this notable new article headlined "Hundreds of victims’ relatives, ex-officials ask Trump administration to halt federal executions."  Here are excerpts:

Hundreds of relatives of murder victims, current and former law enforcement officials and former judges have signed letters urging the Trump administration to call off its plans to resume federal executions next month.  The letters, which are signed by a wide range of current and former officials across the justice system as well as 175 people whose loved ones were slain, plead with President Trump and Attorney General William P. Barr to stop the executions.

These messages offer several explanations and requests. The relatives of murder victims — the largest single group to sign the letters — call for an end to the death penalty, denouncing the process as wasteful and something that only extends their grieving.  “We want a justice system that holds people who commit violence accountable, reduces crime, provides healing, and is responsive to the needs of survivors,” they write.  “On all these measures, the death penalty fails.”

Barr announced over the summer that the Trump administration would carry out the first federal executions since 2003, scheduling them to resume on Dec. 9.  The move breaks with recent declines in both death penalty activity nationwide as well as public support for the practice.  “The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr said in a July statement declaring that executions would resume.  The Justice Department said five executions were scheduled for December and January and promised that more would follow.

The letters asking Barr and Trump to stop the executions — intended to arrive at the White House and Justice Department on Tuesday — contain pleas from victims’ families as well as current and former prosecutors, police chiefs, attorneys general, judges and corrections officials, all citing their experiences and perspectives in arguing against resuming executions as scheduled.

Copies of the letters were shared with The Washington Post before they were submitted. A spokesman for the White House did not immediately respond to a message seeking comment Tuesday.  A Justice Department spokesman declined to comment on the letters and referred a reporter to Barr’s earlier statement announcing the resumption of executions.

In one letter, current and former prosecutors and other law enforcement officials express fears about innocent people being convicted, the financial cost of death penalty cases and racial disparities. “We are deeply concerned that the federal government plans to proceed with executions despite serious questions about the fairness and reliability of the system that condemned them,” they write.

The current and former officials — a group including some of the “progressive prosecutors” who won district attorney jobs after campaigning for criminal justice reforms — note that they include a mix of people who support and oppose the death penalty. Rather than calling for an end to capital punishment, they ask for “a comprehensive review of the system” before any federal executions can occur.  “It’s too big a risk and there’s nothing to be gained,” Jim Petro, a Republican and a former Ohio attorney general who signed the letter, said in an interview....

In the letter signed by murder victims’ relatives, they argue that the death penalty “exacerbates the trauma of losing a loved one,” wastes money, does not deter crime and, due to the lengthy appeals process that keeps the cases going, delays the healing process.  Gail Rice — whose brother, Bruce VanderJagt, was a Denver police officer slain in 1997 by a man who killed himself — said she became an active death-penalty opponent after his death. Rice, who signed the letter to Trump and Barr, said her years working in prison and jail ministries showed her that justice is not fairly administered. “I’ll be praying for them,” she said of relatives of victims in the cases that led to the scheduled federal executions. “I would certainly tell them … please don’t listen to judges or prosecutors or legislators that are going to tell you this is wonderful, it brings closure, it brings healing. Because believe me, it doesn’t.”

The message in the letter from victims’ relatives echoes a plea from Earlene Peterson, who has separately asked the Trump administration not to kill Daniel Lewis Lee, the first federal inmate scheduled to be executed.  The Justice Department said Lee killed a family of three, among them an 8-year-old-girl and her mother — Sarah Powell and Nancy Mueller, Peterson’s granddaughter and daughter.  “I can’t see how executing Daniel Lee will honor my daughter in any way,” Peterson said in a video statement released last month. Peterson, noting that she voted for Trump and plans to do so again, said she wants the president to know: “I don’t want this to happen.”

November 12, 2019 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Why are bureaucrats undermining the president on criminal justice?"

The question in the title of this post is the headline of this notable new Hill commentary authored by Holly Harris.  The piece laments developments, previously reported here and here, relating to the implementation of one part of the FIRST STEP Act.  Here is are excerpts:

Justice Department bureaucrats have been quietly working to undermine President Trump and Congress by obstructing federal criminal justice reforms.  It is not surprising, and it is not the first time.  But it is a shame....

The Justice Department, according to various reports, is inexplicably spending taxpayer resources trying to find ways of bringing some of the prisoners released under the First Step Act back into federal custody.  An investigation by Reuters found dozens of instances in which the Justice Department argued against releasing these prisoners early, usually basing their new cases on some technicality like “the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.”

It is no secret that the Justice Department zealously opposed the First Step Act, but I remained hopeful when its officials promised to fully and faithfully implement the law.  I applauded when they had issued progress reports on each of the provisions of the First Step Act.  But never once in these reports nor anywhere else did the Justice Department publicly disclose their plan to direct prosecutors to oppose release petitions.

Fortunately, most of those attempts to keep these individuals behind bars, or to reincarcerate them after the fact, have been struck down by federal judges.  But that is not stopping obstructionists within Justice Department ranks from continuing to thwart the will of President Trump, the will of Congress, and the will of the people to implement the First Step Act.

The Justice Department has long acted on an island, separate from the administration and accountable to no one.  The surreptitious obstruction of First Step is just the latest in a long line of unilateral actions aimed at undermining badly needed reforms to our broken criminal justice system.  Others questionable federal actions include reopening for profit prisons, directing prosecutors to charge all defendants with the highest provable offenses, and eliminating the investigations of police departments that repeatedly violate the civil rights of those they are sworn to protect.

Predictably, the latest obstruction of the popular First Step Act is not sitting well with leaders on both sides of the aisle. Democratic Senator Richard Durbin of Illinois told Reuters, “The notion that the Department of Justice is just going to keep nagging at them and appealing these cases is not what we have ever had in mind.”  Republican Senator Mike Lee of Utah likewise told the Washington Post, “It would be a shame if the people working under the president failed to implement the bill as written.”...

In the face of this obstruction, Congress may finally be willing to push back hard against Justice Department attempts to act as a fourth branch of government.  Too many are invested in the success of the First Step Act to overlook attempts to undermine it.  I urge the leaders in the House and Senate to vigorously exercise their oversight authority over an institution that has operated on an island for far too long, and ensure that their own groundbreaking efforts to restore some justice to a broken system is not thwarted by the very officials who pledged to faithfully implement it.

Prior related posts:

November 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 11, 2019

"Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness"

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

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems.  But the conventional understanding of Strickland as a problem for ineffectiveness claims gives Strickland too much prominence, because it treats Strickland as the test for all such claims. That is a mistake.  Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two-pronged test applies to only one of the four.  If litigants and courts would notice the complexity and relegate Strickland to its proper place, it would pave the way for meritorious ineffectiveness claims of the other three kinds.  This Article disaggregates strands of Sixth Amendment doctrine that others have jumbled together so as to enable courts and litigants to confine Strickland to its proper domain and use more appropriate analyses elsewhere.

The Article also explains why additional disaggregation is necessary within the category of cases where Strickland rightly applies.  Implicitly, the Supreme Court has created not one but three tests for assessing deficient performance within that domain, and it has indicated a willingness to soften the outcome-determinative prejudice prong as well.  Failure to recognize these different forms of Strickland ineffectiveness has made the test seem much harder for defendants to satisfy than needs to be true.  Recognizing these complexities, and applying the right test in the right case, is necessary if individual defendants are to be treated fairly and systemic constitutional problems in the provision of indigent defense services are to be addressed.

November 11, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Ironies abound as Deputy AG complains about "whole categories of drug crimes ... being ignored and not enforced" by prosecutors

I just had some time today to review this notable speech delivered this past Friday by Deputy Attorney General Jeffrey Rosen at the Wake Forest School of Law.  As always, I recommend the speech in full because there is too much in the DAG's remarks for me to reprint and engage them all here.  But, as I read though the speech's laments about the failure to enforce drug laws, I could not help but wonder if the DAG gave any thought to DOJ's own persistent disinclination to prosecute the many thousands of (federally illegal) recreational marijuana businesses that operate openly in nearly a dozen US states.  This thought was among the many ironies I saw as DAG Rosen in this speech praises federal crime fighting efforts while criticizing the work of some local prosecutors. Here are some extended excerpts followed by a bit more commentary:

At the Department of Justice, reducing violent crime is one of our top priorities....  So let me start this discussion about violent crime with this simple observation: To understand what works in combating crime, one need look no further than the highly successful efforts of state and federal law enforcement over recent decades.  In the early 1990s, crime reached an all-time high.  Violent crime and murder rates in particular had steadily increased over the preceding decades. Many major American cities and communities were not safe places to live or work.

In response to this troubling trend, legislatures increased penalties for gun offenders, prosecutors pursued stiff penalties for violent criminals, and the Department of Justice did its part by launching a series of nationwide initiatives to stem the tide of rising crime.  For instance, in 1991, the Department created Project Triggerlock, a highly successful program that vigorously pursued firearms cases by targeting the most-violent offenders.  A decade later, the Department launched Project Safe Neighborhoods or “PSN.”  As a crime reduction strategy, PSN focuses federal and state resources on the most pressing violent crime problems in our communities, and each district develops comprehensive solutions to address them....

After reaching a peak around 1993, crime steadily declined for the next 20-plus years.  Violent crime was cut in half.  A study published in 2009 concluded that PSN successfully reduced violent crime with case studies showing reductions as high as 42 percent in certain locations.

Unfortunately, after decades of improvement, a reversal took place, with stunning increases in violent crime in 2015 and 2016.  Homicides alone increased by more than 20 percent.  Concerned that we were at risk of losing ground, the incoming Trump Administration and the Justice Department snapped into action and returned to tried-and-true strategies for reducing crime.

In his first month in office, President Trump issued a series of executive orders “designed to restore safety in America.”  In response, the Attorney General announced the reinvigoration of Project Safe Neighborhood as a centerpiece of the Administration’s strategy to reduce violent crime.  In October 2017, Attorney General Sessions directed all 93 U.S. Attorneys to implement enhanced violent-crime reduction programs and to reinvigorate partnerships with state, local, and tribal law enforcement.... Since redoubling our efforts in this way, we have increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration. The joint state-and-federal efforts have worked, and the objective statistics prove it.

The FBI recently released its annual crime statistics for 2018, and, for the second consecutive year, the number of violent crimes decreased nationwide.  In 2018, the violent crime rate decreased 3.9 percent from 2017, and the rate for nearly every type of violent crime decreased as well....

Unfortunately, a dangerous trend is emerging that threatens to blunt the progress we’ve made in reducing crime.  Despite the obvious successes, a small but increasing number of state and local district attorneys have vowed not to enforce entire categories of core criminal offenses as part of a misguided experiment in social justice reform.  From Philadelphia in the East to Dallas in the middle and Seattle in the West, a curtain of non-enforcement policies has descended on some unfortunate cities and counties.

It’s a problem Attorney General Barr highlighted in a speech to the Fraternal Order of Police in August.  There, he spoke of “the emergence in some of our large cities of District Attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.”

The radical decriminalization policies these social-reform DAs have publicly announced and implemented are truly shocking when they are made transparent.  Despite a decade of record-level drug overdose fatalities, whole categories of drug crimes, including several distribution offenses, are being ignored and not enforced.  Likewise, criminals who commit theft below certain thresholds, such as below $500, are given a free pass.  In several jurisdictions, reform DAs have effectively decriminalized prostitution, making it more difficult to fight human trafficking.  If those weren’t surprising enough, social-reform DAs have announced that the categories of malicious destruction of property, and shoplifting, will go unprosecuted.  The same with regard to criminal threats.  Even offenders who resist arrest and assault law enforcement officials are skating prosecution under these DAs’ non-enforcement policies.

At the Justice Department, we emphasize working closely with our state and local law enforcement colleagues.  But I am concerned that these social reform DAs are falling down on the job.  A prosecutor’s duty is straightforward — enforce the law fairly and impartially and keep the public safe.  By refusing to prosecute basic offenses, social reform DAs are failing to fulfill that vital obligation.  No society can have justice when stealing has been effectively licensed, open-air drug markets are allowed to flourish, and neither victim nor police officer trust that those who break the law will be held accountable....

Not only will these non-prosecution strategies inevitably make communities less safe, they also undermine our constitutional system of separation of powers.  It doesn’t take a law degree from a fine institution like Wake Forest to understand the principle that the legislative branch writes the law; the judicial branch interprets the law; and the executive branch enforces the law. District attorneys, of course, are part of the executive branch, responsible for enforcing the law. By refusing to prosecute broad swaths of core criminal offenses, social-reform DAs are ignoring duly-enacted laws in favor of their own personal notions of what they think the law should be....

Now, with regard to these DA’s personal policy preferences, let me turn briefly to the issue of prosecutorial discretion. There is no question that prosecutors have discretion to decide what cases to prosecute and how to spend their limited resources.  But these DAs are not making individualized decisions based on the facts and circumstances of particular cases. They are predetermining whole categories of offenses for non-enforcement.  They are effectively legislating through inaction.  And the offenses they are unilaterally striking from the books are not antiquated or rare; they are basic criminal laws directed at maintaining public safety.  These DAs’ decriminalization strategies go far beyond prosecutorial discretion and fly in the face of the fundamental concept that no one part of the government exercises total control of our legal system. If you believe in the rule of law, that is a problem....

Some have argued that recent criminal justice reform legislation like the First Step Act represents a repudiation of historical law enforcement practices.  Not so. There was wide bi-partisan support for the First Step Act.  Among other things, that legislation focuses on reducing recidivism, to help prevent future crimes. The Department of Justice and our Bureau of Prisons have made implementing that legislation a priority, as Attorney General Barr and I have both emphasized.

Let me give you a few illustrations: In addition to sentence reductions that have resulted in the release of more than 4,700 inmates, we have updated policies for inmates to obtain “compassionate release,” and since the Act was signed into law, 107 inmates have received compassionate release, compared to 34 in 2018.  We launched a pilot program that has allowed over 260 elderly or terminally-ill inmates to transition to home confinement.  We have further individualized drug-treatment plans, so about 16,000 inmates are now enrolled in recovery programs.  And to reduce recidivism, we are advancing re-entry programming to help past offenders find work and relaunch their lives.

But here is the key point about these improvements from the First Step Act: It is only because of the success of the law enforcement approaches of the last several decades that we had the opportunity to consider and implement these improvements to the criminal justice system. And a key part of fighting crime and protecting victims is helping to make sure that when these prisoners are released — as many of them will be, after serving their sentences — we give them the best possible chance at not re-offending. It’s about public safety, plain and simple....

Finally, let me address one other aspect of the non-enforcement policy problem.  Some defenders of reform DAs claim that the non-prosecution strategies merely reflect the will of the communities that elected them.  If that were so, one wonders why those communities’ legislators would not simply change the laws to reflect their constituents’ views. Indeed, one reason greater transparency about these non-enforcement policies is warranted is that it is far from clear that the public knows and wants prosecutors to tolerate crimes like burglary and theft without enforcement.

Do you think Americans really want prosecutors who won’t enforce whole categories of laws?  It can be hard to overlook that some of these social reform DAs were elected in low-turnout primaries backed by unusual funding from out-of-state ideological advocates.  But elections are up to voters, so I do not mean to address any individual jurisdiction or any particular DA; my question is what kind of system will we have if our laws are simply to be ignored?  And I am especially focused on the problem that non-enforcement policies present to the goal of continuing to reduce violent crime and make our communities safer.

I find jarring that this speech starts with an emphasis on making the reduction of violent crime a priority and then assails local DAs for giving less attention to non-violent crimes. It seems deeply misguided to say in blanket terms that "non-prosecution strategies inevitably make communities less safe" when the non-prosecution policy involves, say, low-level marijuana offices.  Of course, the biggest irony here is that the federal government for the last decade has been pursuing various "non-prosecution strategies" with respect to state-compliant federal marijuana offenses.  Notably, the range of non-enforcement policies adopted by the feds have obviously not undermined "the goal of continuing to reduce violent crime and make our communities safer."  But apparently, in the view of DAG Rosen, what is good for the (essentially unelected) federal prosecutors in terms marijuana non-enforcement is no good for the (locally elected) state prosecutors.

Adding to the ironies here is DAG Rosen's praise and commitment to the FIRST STEP Act.  I am so very pleased to see DAG Rosen praise the reduction of thousands of federal sentences, the early releases to home confinement, the individualized drug-treatment plans, and other efforts to advance re-entry programming to help past offenders.  But I surmise that this work is in much harmony with what progressive prosecutors are committed to doing: finding alternatives to excessive prison terms, addressing public health problems like addiction outside the criminal justice system, and helping offenders "find work and relaunch their lives."  I also think progressive prosecutors would generally acknowledge that low crime rates help provide "the opportunity to consider and implement these improvements to the criminal justice system."  In other words, I believe progressive prosecutors are concerned about "public safety, plain and simple," but they reasonable believe that they can achieve that end without turning to law enforcement and the prison system to address every societal issue.

November 11, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Friday, November 08, 2019

Spotlighting again how the Justice Department is resisting broad applicability of certain FIRST STEP Act provisions

In this post from July, I noted this Reuters article on some of the court skirmishes over the crack sentencing retroactivity provisions of the FIRST STEP Act.  That piece carried this headline: "As new U.S. law frees inmates, prosecutors seek to lock some back up."  Now the Washington Post has this lengthy piece in a similar vein under this headline: "Trump boasts that his landmark law is freeing these inmates. His Justice Department wants them to stay in prison." I recommend the piece in full, and here are excerpts:

The gathering in April was a triumphant celebration of the First Step Act, the most sweeping overhaul of the federal criminal justice system in a generation. Since its passage nearly a year ago, the law has led to the release of more than 3,000 inmates — including [Gregory] Allen, who was convicted of cocaine trafficking in 2001.

The Justice Department, though, had never wanted to let Allen out of prison. In fact, even as he and Trump shared a joyous embrace on television, federal prosecutors were trying to persuade a judge to put Allen back behind bars.

The president has repeatedly pointed to the First Step Act as one of his administration’s chief bipartisan achievements and one for which he is personally responsible. But cases like Allen’s expose a striking rift between the White House allies who supported the law and the Justice Department officials now working to limit the number of inmates who might benefit from it.

“DOJ is pushing against the will of the people, the will of Congress, the will of the president,” said Holly Harris, a conservative activist and leader of the Justice Action Network who worked with Congress and the White House to pass the law. Harris noted that, before the law’s passage, then-Attorney General Jeff Sessions was a vocal critic of reducing prison sentences. His successor, William P. Barr, expressed similar reservations before his appointment.

The First Step Act aims to lessen long-standing disparities in punishment for nonviolent drug offenses involving crack cocaine. Having five grams of crack, a form of cocaine that is more common among black drug users, used to carry the same mandatory minimum sentence as having 500 grams of powder cocaine, which is more common among white drug users.

But federal prosecutors are arguing in hundreds of cases that inmates who have applied for this type of relief are ineligible, according to a review of court records and interviews with defense attorneys. In at least half a dozen cases, prosecutors are seeking to reincarcerate offenders who have been released under the First Step Act.

The department has told federal prosecutors that when determining whether to challenge an application for early release, they should consider not the amount of crack an inmate was convicted of having or trafficking — but rather the amount that court records suggest they may have actually had, which is often much larger.

A Justice spokesman, Wyn Hornbuckle, defended that interpretation, though he declined to discuss the department’s guidance to prosecutors or to say when it was disseminated. He did not respond to questions about the split between the department and the White House allies who pushed for the law. Hornbuckle said that in years past, prosecutors could secure lengthy prison sentences without having to prove an offender had large amounts of drugs. Under today’s laws, he said, those same offenders would probably be charged with crimes involving larger quantities. “The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” Hornbuckle said. “This is a fairness issue.”

In the vast majority of cases reviewed by The Washington Post, judges have disagreed with the Justice Department’s interpretation. Some of the people involved in writing the legislation also disagree, including Brett Tolman, a former U.S. attorney in Utah. He and other supporters of the law note that the text of the legislation does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had. “This is not a faithful implementation of this part of the First Step Act,” said Tolman, who was appointed by President George W. Bush. “At some point, they figured out a way to come back and argue that it wouldn’t apply to as many people.”

Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee, accused the Justice Department at a congressional hearing last month of “trying to sabotage” the law by interpreting it in this way. Sen. Mike Lee of Utah, a key Republican sponsor of the law, declined to comment on the department’s stance on inmate eligibility but told The Post he had concerns about how other aspects of the law are being implemented. “It would be a shame if the people working under the President failed to implement the bill as written,” Lee said in a recent statement to The Post....

“The people that did the deal, including President Trump, wanted to help guys like me,” said Allen, 49, whose case was mentioned in a Reuters story in July about efforts by some prosecutors to clamp down on First Step Act relief. “But on the flip side, you have federal prosecutors who wake up every day trying to keep guys like me locked up.”...

The First Step Act was championed by a bipartisan coalition that spanned the political spectrum, from the conservative megadonor Koch brothers toracial-justice activist Van Jones. The legislation forbids federal jailers from shackling pregnant inmates and grants judges new powers to free sick and elderly prisoners. One of the most consequential parts of the law was the provision allowing federal inmates such as Allen to apply for early release. The mandatory sentencing policies those offenders faced are among the factors that have led the United States to incarcerate more people than any other nation, experts say....

Trump has made criminal justice reform a chief talking point in recent months, and several of his advisers — including Kushner — believe it could play an important role in his reelection bid, said Doug Deason, a prominent donor to the Trump campaign. A senior campaign official added that the Trump campaign plans to tout the First Step Act in the hopes of attracting black voters in key states such as North Carolina and Florida.

The legislation has earned Trump goodwill from unlikely corners, something he craves amid an impeachment inquiry. Last week, he beamed onstage in Columbia, S.C., as he was presented with an award from a bipartisan advocacy group of black elected officials. “I told him, ‘You ought to go and get that award,’” Sen. Lindsey O. Graham (R-S.C.) said in an interview. “There ain’t many people giving you an award these days.”

Backstage, Trump talked up the idea of another such law, asking Steve Benjamin, the city’s mayor, whether he should call it the Second Step Act, the mayor recalled. Yet even as Trump toasts himself for the legislative victory, defense attorneys and advocates are frustrated that the White House is not doing more to ensure that the law is implemented as intended.

“The irony of this administration working against itself is mind-boggling,” said Brittany Barnett, a defense attorney who has worked on several of the First Step Act cases championed by Kardashian. “Especially with lives on the line.”

In the weeks after the bill became law, many federal prosecutors allowed inmate petitions for early release to go unchallenged. Then, at the direction of officials in Washington, prosecutors began to reverse course, court records show. In March, Assistant U.S. Attorney Jennifer Bockhorst asked federal judges in West Virginia to place a hold on more than two dozen applications for relief — some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the Justice Department.

In a brief phone interview, Bockhorst said the government shutdown that began soon after the bill passed and lasted until late January delayed the guidance from Washington. “We didn’t have the benefit of any kind of coordinated position,” she said. Similar reversals took place in New York, where prosecutors agreed in April that certain inmates were eligible — only to change their position in May. In one case, a judge found the reversal striking enough to ask what prompted it.

Prior related post:

November 8, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, November 07, 2019

Any "hot takes" on how a Trump judiciary might be changing sentencing law and practice?

The question in the title of this post is prompted by milestones reached and celebrated by the Trump Administration yesterday.  This Bloomberg article, headlined "Trump Boasts of GOP Success Confirming His Judicial Nominees," provides some background:

President Donald Trump celebrated Republicans’ record on confirming federal judges on Wednesday, saying his administration has done better than any other in terms of “quality and quantity” of judges appointed to the bench....

The president’s comments came as the U.S. Senate is set to confirm Trump’s 45th circuit judge this week.  With that vote, he will have appointed about a quarter of all appeals court judges.

Trump has won confirmation of a total of 158 federal judicial nominees, including Supreme Court justices Brett Kavanaugh and Neil Gorsuch.  The president, who on Wednesday named 10 additional judges he intends to nominate, is likely to see more win approval this year than during the first two years of his presidency combined.

The pace of confirmation far exceeds those of his immediate predecessors, a fact that Trump routinely notes in public comments.  The GOP’s Senate majority leader, Mitch McConnell, has leveraged his party’s control of the chamber to flood the federal courts with Trump’s picks.

The appointments have led to the Third Circuit Court of Appeals -- which hears cases from Pennsylvania, New Jersey and Delaware -- flipping from a majority of judges appointed by Democratic presidents to a majority appointed by Republicans.  By the end of the year, similar changes are likely in the Second Circuit, which includes New York, Connecticut and Vermont, and the Eleventh Circuit, which covers Alabama, Florida and Georgia.

During President Barack Obama’s second term, McConnell held up nominees -- including a Supreme Court vacancy created by Justice Antonin Scalia death in 2016 -- leaving 86 district court vacancies and 17 circuit court vacancies for Trump to fill.  Trump has repeatedly mocked Obama for leaving the positions unfilled....

“Nobody has done more to change the court system in the history of our country than Donald Trump,” McConnell said Monday at a rally in his home state of Kentucky with the president. “And Mr. President, we’re going to keep on doing it.  My motto is: Leave no vacancy behind.”

Because "the court system" plays a fundamentally central role in federal sentencing decision-making, if Prez Trump's nominees are dramatically changing the court system in our country then one might expect to also see a dramatic change in sentencing law and practice.  But I do not sense there has been major change in this arena (though I do not follow lower court rulings in this space quite as closely as I did in the immediate post-Booker days).

Of course, the jury is still out on how Justices Gorsuch and Kavanaugh will impact SCOTUS sentencing jurisprudence as replacements from Justices Scalia and Kennedy.  But SCOTUS decides so few sentencing cases while the circuit courts decide so many, and district judges do all the actual sentencing.  And so I keep gravitating to the idea that a Trump judiciary might well be changing sentencing law and practice.  But does anyone think the Trump judges actually are making a big difference?

November 7, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

"Taking a second look at life imprisonment"

The title of this post is the headline of this notable new Boston Globe commentary authored by Nancy Gertner and Marc Mauer. Here are excerpts:

While there has been a great deal of attention in recent years to the impact of the drug war on growing prison populations, in fact, the main drivers of the prison system now are excessive sentences for violent offenses.

The statistics are troubling.  There are as many individuals [in Massachusetts] serving life sentences as the entire state prison population in 1970, and more than half are black or Latino. Of the 2,000 lifers in the state, about half are not eligible for parole.  Barring executive clemency, they will die in prison after spending decades behind bars.

Since 90 percent of lifers nationally have been convicted of serious violent crimes, supporters of lifelong incarceration argue that incapacitating such people is an effective crime-control mechanism.  In fact, it is the opposite: It is counterproductive for public safety.

Criminologists know that individuals “age out” of crime.  Any parent of a teenager understands that misbehavior, often serious, is all too common at this stage.  FBI arrest data show that the rate of arrest for teenage boys rises sharply from the mid-teen years through the early 20s but then declines significantly. Arrests for robbery, for example, peak at age 19 but decline by more than half by age 30 and by three-quarters by age 40. The same is true for other violent crimes.

The reason is clear.  As teenage boys enter their 20s, they lose their impulsivity, get jobs, find life partners, form families, and generally take on adult roles.  Violent behavior becomes less attractive.

For public safety purposes incarcerating people past age 40 produces diminishing returns for crime control; less and less crime is prevented by incapacitation each year.  This impact is magnified by resource tradeoffs.  National estimates for the cost of incarcerating an elderly person are at least $60,000 a year, in large part due to the need for health care.  With finite public safety resources, these costs are not available to invest in family and community support for the new cohort of teenagers, for whom proactive initiatives could lower the risk of antisocial behavior.

Legislation introduced by Representative Jay Livingstone of Boston and Senator Joe Boncore of Winthrop, along with 34 cosponsors, would help to ameliorate this problem in Massachusetts.  Under the bill’s “second look” provision, individuals serving life without parole would be eligible for a parole review after serving 25 years....

Recently, there has been a bipartisan critique of the effects of mass incarceration, particularly on low-income communities of color.  State policy makers across the country are exploring ways to reduce excessive prison populations without adverse effects on public safety.  The proposed “second look” provision offers one significant alternative.  It should be passed.

November 7, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 06, 2019

Notable Wall Street Journal commentaries decry injustices highlighted by college admission scandal prosecutions

I have blogged a lot about the college admission scandal prosecutions because they provide a high-profile setting for shinning a bright light on some ugly features of criminal justice in America.  The Wall Street Journal editors this week have been eager to do such light-shinning as evidenced by these two notable new commentaries in its pages:

Authored by William McGurn, "Free Lori Loughlin: The feds are treating the actress as if she and her husband were Bonnie and Clyde." Some excerpts:

If convicted of all the charges federal prosecutors have piled up against them, Ms. Loughlin and her husband could be sentenced to as much as 45 years in prison.  This is nuts.

The same operation that caught Ms. Loughlin also snared dozens of other high-powered people, including CEOs, lawyers and venture capitalists.  They too are accused of paying fixer William “Rick” Singer either to cheat on their kids’ college entrance exams, to present them fraudulently for college admission as athletes, or both.  But Ms. Loughlin’s celebrity status has ensured that she and fellow actress Felicity Huffman remain the face of the scandal for most Americans.

With this difference: While Ms. Huffman pleaded guilty, apologized profusely and served out her sentence (14 days, but released after 12 because it was a weekend) at the Federal Correctional Institution in Dublin, Calif., Ms. Loughlin and Mr. Giannulli are insisting, perhaps unwisely, on taking their case to a jury.  Meanwhile, in the same way the sans-culottes jeered Marie Antoinette on her way to the guillotine, today’s equivalent — Twitter mobs and gossip sheets — are thirsting to see this icon of Tinseltown wealth and privilege cut down to size by a stint in federal prison.

Now, it may well be standard procedure for prosecutors to add new charges when their targets refuse to plead. But does anyone else think it a stretch to argue that two California residents bribing their children’s way into a private California university are committing a crime against the federal government? Or that the statutes she’s accused of violating, such as bribery or money laundering in connection with a program that receives federal funding, were really intended to go after people such as Ms. Loughlin?

All of which has yours truly hoping Ms. Loughlin and her husband prevail. Not because they are innocent. But because the case reeks of overreach, as well as my unease with the idea that the FBI and Justice are the vehicles to deliver fairness in college admissions....

There are many ways to punish Ms. Loughlin. Some of them have already happened even without a conviction: The Hallmark Channel severed all ties; Netflix will film the last season of the reboot “Fuller House” without her; and her daughters were forced to leave USC under humiliating circumstances.  Ms. Loughlin, remember, is a nonviolent first-offender.  By all means, stick her with a fat fine and community service. But it’s just overkill for federal prosecutors to be devoting so much of their time and resources to make sure this woman goes to prison.

Authored by Alan Dershowitz, "Most Plea Bargains Are Unconstitutional: Harsh punishments for defendants who exercise their right to trial violate the Sixth Amendment." Some excerpts:

When is a constitutional right not a right? When you’re punished for exercising it.  If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say.  Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual — even by the Supreme Court.

In my own practice I’ve seen cases in which defendants declined a plea bargain, were convicted, and received sentences more than 10 times as severe as prosecutors had offered them.  A doctor was offered one year if he pleaded guilty to Medicaid fraud and received 11 years at trial.  He rejected the plea offer because he believed he was innocent and had expert testimony to back him up.  In another case, two businessmen accused of financial fraud were offered sentences of seven years and sentenced to 80 years after a trial....

Or consider two actresses charged in the college-admissions scandal. Felicity Huffman received 14 days after waiving a trial. Lori Loughlin could face as long as 45 years (although likely less) if she exercises her right to go to trial. The prosecutor has been clear: “If it’s after trial, we would ask for something substantially higher. If she resolves it before trial, something lower than that.”

In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.”  Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial.  As the Supreme Court put it: “We cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State” (emphasis added).

Yet imagine if the government, instead of directly punishing disfavored speech, accomplished the same objective in a roundabout way by offering a tax rebate for people who waive their First Amendment rights.  Any judge would see through the maneuver.  So why do the courts invoke the same meaningless distinction when it comes to the right to trial?

Because more than 90% of defendants waive the right to trial, usually for fear of the trial penalty.  If the penalty were held unconstitutional, it could overwhelm the system.  But is that a good enough reason to trample a constitutional right?  Under America’s Constitution, rights are the absolutes to which practical considerations must adapt.  We can build more courthouses and appoint more judges and prosecutors to accommodate the right to trial.  We can also decriminalize many actions that are today treated as crimes, beginning with drug use....  

The time has come to end the unconstitutional trial penalty.

November 6, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

"Acquitted Conduct Should Not Be Considered At Sentencing"

The title of this post is the title of this notable recent Law360 commentary authored by Robert Ehrlich, the former governor of Maryland. I recommend the full piece, and here are excerpts:

John Adams famously declared, “Representative government and trial by jury are the heart and lungs of liberty." Indeed, given the role the jury trial plays in our modern criminal justice system.

The jury trial was designed as an indispensable structural check on government. A safeguard the framers of the Constitution considered so paramount to a free people that it was enshrined in the Sixth Amendment.

Trial by jury is essential to preserving liberty because it protects individuals from arbitrary use of government power by allowing the people to act independently of the state. Accordingly, upholding the people’s role in the administration of justice is foundational to upholding the purpose of this procedural guarantee.

Against this background, U.S. Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, recently introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019. The bill seeks to address the insidious practice known as acquitted conduct sentencing, wherein a judge enhances a sentence based on conduct underlying charges for which a defendant has been acquitted by a jury.

You read that correctly. Under current law, federal judges are permitted to sentence individuals based on charges for which a jury found them not guilty....

Lower standards of proof at sentencing — in conjunction with 18 U.S.C. Section 3661, legal precedent and application of the guidelines — means that federal judges may consider a wide array of relevant conduct in determining a defendant’s sentence, including conduct for which underlying charges have been acquitted by a jury. While the Supreme Court determined acquitted-conduct sentencing did not violate the double jeopardy clause in Watts, the court has never addressed whether the Sixth Amendment right to a trial jury prohibits the practice....

The bottom line: Acquitted-conduct sentencing effectively divests individuals of their Sixth Amendment right to trial-by-jury by divesting citizens of their historical and constitutional role in the administration of criminal justice.

While a defendant remains “not guilty” on paper, the sentencing judge’s veto of the jury’s verdict renders the acquittal meaningless for all practical purposes. Consideration of acquitted conduct at sentencing effectively eliminates the democratic role of the jury in the criminal justice system, inverting the power structure to allow government to limit the people rather than people to limit the government.

Acquitted-conduct sentencing is an affront to individual liberty, and judicial or legislative action would be welcome responses to the unconstitutional practice. The Prohibiting Punishment of Acquitted Conduct Act would amend 18 U.S.C. Section 3661 to explicitly preclude federal courts from considering acquitted conduct at sentencing, except as a mitigating factor. Congress should advance this simple reform to restore the Constitution’s basic guarantees of due process and the right to trial by jury.

A few of many recent and prior related posts on the acquitted conduct:

November 6, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, November 05, 2019

Very different looks on criminal justice reform for governors in Oklahoma and New York

As spotlighted in prior posts here and here and here, Oklahoma this week saw a series of interesting and important criminal justice reform efforts culminate in the release of more than 400 prisoners as part of the largest mass commutation in U.S. history (details here).  Thanks to Twitter, I saw this video clip of persons being released from the Eddie Warrior Correctional Center.  Notably, in addition to being greeted by friends and families, the released individuals also saw Governor Kevin Stitt and First Lady Sarah Stitt awaiting their release to congratulate them.

Not long after I saw this video and the heartening involvement of Oklahoma Governor Stitt in this historic criminal justice reform story, I saw this press article discussing the disheartening work of New York Governor Cuomo is a much more discouraging criminal justice story.  The piece is headlined "Gov. Cuomo's Program for More Clemency Applications Appears to Stall, As Prisoners Wait and Hope for a Second Chance," and here are excerpts:

Governor Andrew Cuomo’s program to help more prisoners apply for clemency in New York State appears to be stalled and the Governor’s office is declining to explain why.

In 2017, Cuomo asked lawyers to volunteer to help identify prisoners worthy of his mercy, and assist them in making their best case for a shortened sentence. More than two hundred lawyers stepped up. But two years and thousands of pro bono hours later, Governor Cuomo has neither approved nor denied any of the 107 clemency applications filed through the program.

“It’s discouraging. We’ve put a lot of resources into it.” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, which partnered with Families Against Mandatory Minimums and the State at the Governor’s request. “We put people away for ridiculous amounts of time, often for mistakes they made when they were very young,” Reimer added.

Lawyers involved in the NACDL/FAMM project tell News 4 because there has been no action in these cases, they are reluctant to take on new prisoners. More than 1,600 prisoners are currently waiting to be assigned attorneys through the project. “The idea that you can’t find a single one of those to grant is inconceivable to me. There’s just no greater feeling than giving somebody freedom,” said NYU Law Professor Rachel Barkow and author of "Prisoners of Politics."

The power to commute a prisoner’s sentence rests solely with the Governor. NACDL says the Cuomo administration has been highly cooperative, producing records and helping to vet cases.

Cuomo administration insiders familiar with the clemency review process say the problem is not that these cases are being ignored. Sources with first hand knowledge say the cases submitted by NACDL/FAMM were carefully reviewed by a team of attorneys inside the office of the Counsel to the Governor. They say the team identified a group of worthy candidates for a possible mid-year clemency grant this past Spring, but the Governor did not act.

Timing, they speculated, may have played a role, citing pushback from some law enforcement groups for Cuomo’s role in the early release of Judith Clark in May 2019. Clark was the getaway driver in the deadly 1981 Brink’s robbery and the Governor commuted her sentence to make her eligible for early parole. One person who has discussed the project at length with the Governor’s senior staff described a sense that politically speaking, “the bang was not worth the buck.”

Several sources familiar with the internal review process say the Governor’s office may have been taken aback by the large number of applications lawyers submitted on behalf of prisoners who committed violent felonies. These cases are more politically sensitive for a governor, because it is not uncommon for district attorneys, law enforcement groups and family members of victims to oppose early release.

But Norman Reimer says if the severity of the crimes is the reason for Cuomo’s inaction, that’s not how the governor’s office promised to approach this process. “What I like about Governor Cuomo’s initiative is he didn’t limit it based on the nature of the crime," said Reimer. "We pressed that issue and it was an affirmative decision by them to let the person’s record of rehabilitation speak the loudest, even in violent crimes.”

Governor Cuomo’s office did not respond to repeated requests for an explanation for his inaction on the NACDL/FAMM cases, nor for a breakdown of the clemency grants he has issued. According to public reports, Cuomo has commuted at least 18 sentences in almost nine years, including three in 2018.

Barkow says compared with some other Democratic governors, Cuomo has used his executive clemency powers sparingly. Gavin Newsom of California commuted the sentences of 23 prisoners since September of this year, including prisoners involved in violent felonies....

In last year's primary, the progressive wing of the Democratic party hammered Cuomo for what they considered insufficient criminal justice reforms. “The people who care about these issues want to see real results,” said Professor Barkow. “They want to see that people are walking the walk and not just kind of throwing talk out there.” As for Cuomo’s record on justice issues like clemency and marijuana legalization, Barkow added “It seems like the pattern is to wait and just make sure where the political winds are blowing.”

November 5, 2019 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Opportunities for law students interested in prison law and prisoners’ rights

Sharon Dolovich, Professor of Law and Director of the Prison Law & Policy Program at the UCLA School of Law, asked if I could post this year's edition of the UCLA Prison Law Summer Job Search Guide.  As Sharon explained to me: "The guide is intended for current law students around the country interested in summer positions working on behalf of incarcerated people. The guide gives the students a one-stop shop of what organizations are hiring."

Download UCLA Prison Law Summer 2020 Job Search Guide

Sharon wisely also suggested I also use this opportunity to note anew Prison Law JD for a new crop of young prisoners’ rights advocates.  Again, from Sharon: "Prison Law JD is the national listserv for current law students or recent law grads who are interested in this field. The purpose is to disseminate information about job and fellowship opportunities, conferences, etc. and also to help build a community of the next generation of prisoners’ rights lawyers.  Students who want to join can email me directly at dolovich @ law.ucla.edu ."

I am so grateful for Sharon's terrific work on these important issues.  I am hopeful this message gets widely shared in all networks so that all law students know of these great resources and opportunities.

November 5, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, November 03, 2019

Giving Oklahoma its criminal justice reform due

Regular readers will not be surprised to hear more about red-state Oklahoma's interesting and important criminal justice reform efforts, as I have tried to highlight here repeatedly the more-than-okay news from the OK state.  But with record-setting clemency developments (first noted here), the mainstream media is catching up as evidence by these recent pieces:

From the Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"

From US News, "Oklahoma Focuses on Criminal Justice Reform"

From the Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

UPDATE: Here are a few more new pieces from the national media:

From CNN, "462 Oklahoma inmates will be released today in the largest commutation in US history"

From USA Today, "Hundreds of Oklahoma inmates to be freed, the largest mass release in US history"

November 3, 2019 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

"Criminal Justice Reform Is About People, Not Posturing"

The title of this post is the title of this recent Real Clear Politics commentary authored by John Koufos.  I recommend the full piece, and here are excerpts:

It’s a shame that Sen. Kamala Harris sought to politicize a celebration of the historic First Step Act at Benedict College in South Carolina last week.  Criminal justice reform has benefited millions of Americans — most especially the minorities the Democratic presidential candidate says she advocates for.  This reform restores victims, redeems former prisoners and rebuilds communities....

According to the U.S. Sentencing Commission, the First Step Act has overwhelming helped remedy historic injustice to minorities; African Americans make up more than 91% of those released.  It is no secret that minority communities were hurt most by the 1994 Clinton crime bill, which was originally drafted by Sen. Joe Biden.  At Benedict College, the president demonstrated his support for a “second step” of criminal justice reform....

Perhaps the greatest legacy of the First Step Act is its effect on state policy.  States are following the national criminal justice reform trend led by the White House. The president identified recent reforms in Arizona, Florida, Louisiana, Mississippi, Missouri, Michigan, Nevada, Oklahoma, Oregon, and Tennessee, which can be expected to lead to safer streets, increased employment and opportunity, and restored dignity and self-worth.

Goals — and results — like these should not be politicized.  I have seen the commitment of the president and White House first-hand, as part of a bipartisan coalition working on criminal justice reform.  I had the privilege of being in the Oval Office when the First Step Act was signed, and was humbled when the president asked me to speak about criminal justice reform at the White House.  I witnessed Jared Kushner’s leadership, and the commitment of Republican and Democrat legislators.  As I work with governors and state leaders across the country, I see the excitement for criminal justice reform regardless of party.

Criminal justice reform is a nonpartisan idea whose time has come.  President Trump summed it up best at Benedict College when he said: “I knew criminal justice reform was not about politics.  I’m … not sure that what I did was a popular thing or an unpopular thing, but I know it was the right thing to do.”

November 3, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)