Friday, March 22, 2019

California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions

This Los Angeles Times piece, headlined "Gov. Newsom may prohibit new death sentences, setting up possible conflict with Becerra," it appears that the Governor of California may not be content with just delaying all possible executions during his time in office.  Here are some details:

A week after issuing an executive order imposing a blanket moratorium on the execution of California death row inmates, Gov. Gavin Newsom said he is considering a plan to prohibit any new death sentences in local criminal cases.

Newsom’s pronouncement could create conflict with another top Democratic leader, state Atty. Gen. Xavier Becerra, who has supported capital punishment, even though the governor said he wants to work collaboratively with the attorney general.

Newsom reiterated his desire to abolish the death penalty and said he hopes to work with Becerra and others to determine whether, as governor, he can act “on behalf of the people in this state to no longer prosecute death.”

“There is a protocol of death and an administration of death in the state of California, and it consumes the court’s time, it consumes the criminal justice system, it exhausts the soul and the pocketbook,” Newsom said during a conference call with reporters from ethnic news outlets Tuesday. “I would ultimately like to shut down that system of death.”

Though it is not entirely clear how Newsom would carry out such an order, he could either have Becerra direct local district attorneys not to seek the death penalty or order Becerra to not defend appeals. Both approaches would probably face legal challenges....

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Asked whether the attorney general will stop defending death sentences on appeal or direct county prosecutors to stop seeking death sentences, a Becerra spokeswoman said he is reviewing what role his office will play.  “The Department of Justice will work with Governor Newsom and his team as he implements his executive order and will continue to hold criminals accountable,” spokeswoman Bethany Lesser said.

After the Times published this story, Becerra requested an opportunity to clarify his position on the death penalty. In a telephone interview Thursday, he declined to answer if he supported or opposed capital punishment. He said only that, as attorney general, it was his duty to enforce the laws in California, the death penalty among them.  “Where I stand personally on it, I have real reservations about the death penalty. I think there is ample proof that it has not worked the way we would want when it comes to undertaking the most severe form of punishment that’s not reversible,” Becerra said....

The U.S. 9th Circuit Court of Appeals in San Francisco on Monday asked the attorney general’s Department of Justice to indicate whether the governor’s moratorium will affect a death penalty case involving Martin Kipp, who was convicted in the 1983 slaying of Antaya Yvette Howard of Huntington Beach, a former basketball star at Marina High School.  “The Office of the Attorney General is in the process of determining the full effect of the Executive Order on death penalty cases,” the state Department of Justice told the court in a letter.

Even if Becerra disagrees with Newsom, he might not have a choice if the governor decides to force the issue. Because the California Constitution gives the governor “supreme executive power” over the executive branch, Newsom could order Becerra to take action that could suspend all death penalty prosecutions across the state. “In California’s executive branch, the governor has the final word,” said David A. Carrillo, executive director of the California Constitution Center at Berkeley Law.

In 1981, the California Supreme Court ruled that the governor’s constitutional powers give him direct authority over the attorney general. “The constitutional pattern is crystal clear: if a conflict between the Governor and the Attorney General develops over the faithful execution of the laws of this state, the Governor retains the ‘supreme executive power’ to determine the public interest,” the court decision stated....

The constitution also states that the attorney general, as the state’s chief law enforcement officer, has direct supervision over every county district attorney “in all matters pertaining to the duties of their respective offices” — opening up the possibility that he could order locally elected prosecutors to cease seeking the death penalty in murder trials.

Any attempt by the attorney general to dictate how a county district attorney can handle murder prosecutions would almost assuredly be unconstitutional and challenged in court, said Assemblyman Jordan Cunningham (R-Templeton), a former deputy district attorney. District attorneys serve independent of the attorney general, he said. “There’s a lot of D.A.s who I have spoken to, who I know, who aren’t happy with the moratorium that we have now,” Cunningham said. “We don’t live in a system where one person gets elected governor and they get to do what they want by executive fiat.”

Prior related post:

March 22, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Philly DA looking to curtail duration of probation and parole

Many years ago, I heard an academic a lot smarter than me say that the US would never make a serious dent in mass incarceration if and while we still had an even more massive number of persons subject to criminal justice supervision. He suggested that it was unavoidable that some percentage subject to community supervision would end up going back to prison, and so to reduce incarceration levels we had to also reduce supervision levels.

This story is salient this morning because of this notable new press report from Philadelphia headlined "Philly DA Larry Krasner: We took on mass incarceration. Now we’re addressing mass supervision." Here are the basics (with this from the original):

Over his first year in office, Philadelphia District Attorney Larry Krasner rolled out a series of internal policies described as “an effort to end mass incarceration": seeking shorter sentences, diverting low-level offenses from the justice system, and charging crimes at a lower level. 

Now, he’s looking to the next step. “One of our big priorities this year," he said, "is to try to address mass supervision — which, of course, would be both probation and parole.”

Philadelphia counted 42,000 people on county supervision at the end of 2017, or one in 22 adults. Statewide, Pennsylvanians are under correctional control at the second-highest rate in the nation, behind Georgia, and has the highest rate of parolees.

“I think people instinctively believed too much supervision is not enough. But it turns out too much supervision is too much. ... It does tremendous harm, and it costs a fortune,” Krasner said in an interview outlining policies to be announced Thursday. Nationally, about 40 percent of people on probation are reincarcerated, making community supervision a major driver of incarceration. About 40 percent of Philadelphia’s jail population is being held on a detainer for a violation of probation or parole.

His plan? To put his office’s weight behind a push to drastically curtail terms of supervision, which can stretch on for years or even decades, long after prison and jail sentences have been concluded.

Under the new policy, on top of any sentence of incarceration for a felony, assistant district attorneys will seek community supervision terms averaging 18 months, with a ceiling of three years. For misdemeanors, they’ll seek probation or parole terms around six months, not to exceed one year of combined community supervision.

March 22, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, March 21, 2019

Might the US Sentencing Commission provide some real-time updates on the implementation of the FIRST STEP Act?

The question in the title of this post first came to mind when I first came across this local article a couple weeks ago reporting that "so far, 14 Rhode Islanders convicted under stiff mandatory-sentencing laws have gained early release under the newly enacted federal law called the First Step Act."  More recently, I saw this extended piece from the Indiana Lawyer with this interesting data report:

Already in the Southern District of Indiana, some 15 offenders have been released from federal prison pursuant to the First Step Act, and another 15 to 20 releases are expected soon.  Though Northern District judges have not yet reduced any sentences under the act, federal defender Jerry Flynn expects reductions and releases to begin in his district soon.

These reports of prison releases from Indiana and Rhode Island appear to be a function of the initial implementation of Section 404 of the FIRST STEP Act, the retroactive application of Fair Sentencing Act of 2010 which lowered crack mandatory minimums.  And these reports have me already wondering about (1) which districts may (or may not) be doing a particularly good job implementing the latest round of crack retroactivity, and (2) whether most defendants now benefiting from crack retoractivity are securing immediate release from prison or are just getting long sentences reduced a bit.

To its credit, the US Sentencing Commission has a long and impressive track record of keeping track of guideline retroactivity and producing lots of good data and analysis of who benefits from retroactivity.  So I am pretty confident the USSC will eventually produce good data on how this crack retroactivity part of the FIRST STEP Act gets implemented.  But, of course, there are many more part of the new Act that may (or may not) be getting implemented effectively right now, and I am less confident that the USSC is tracking or planning to report on developments in these other areas.

To again credit important and helpful work already done by the USSC, the Commission has published an Overview & FAQs (updated Feb. 15, 2019) and a Prison & Sentencing Impact Analysis (published Jan. 18, 2019) on the FIRST STEP Act.  But these documents do not even discuss some facets of the Act that concern matters related to sentencing and the work of federal judges.  I am thinking particularly about sentence modification under 18 U.S.C. § 3582(C)(1)(A) (often called compassionate release).  As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction."  As noted in this prior post, the press is reporting on some sentence modification motions are being granted.

I think it would be a great service to the federal criminal justice community if the US Sentencing Commission would give focused attention to reporting on FIRST STEP Act implementation.  Indeed, because the USSC has only two active commissioners and seems unlikely to have any more anytime soon, the Commission cannot formally do much more these days than produce research and data.  Today happens to make the three-month anniversary of the FIRST STEP Act being signed in to law, and I think data always makes a great anniversary present.

March 21, 2019 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Wednesday, March 20, 2019

Post-Johnson litigation creates intricate procedural debates in Eleventh Circuit

Thanks to this post at How Appealing, I just saw that the Eleventh Circuit yesterday needed just one sentence to deny rehearing en banc in US v. St. Hubert, a case concerning vagueness challenges to two federal firearm convictions under 18 U.S.C. § 924(c).  But judges of the court had a lot to say thanks to the enduring constitutional and procedural mess created by the Johnson case and its progeny and their potential impact on federal prisoners serving all sorts of lengthy mandatory minimum sentences. 

The six distinct opinions concurring and dissenting from the en banc denial, which collective run 88 pages, defy easy summary.  But if anyone thinks they are really, really, really interested in post-Johnson litigation and all its echoes and challenges (both substantively and procedurally), the Eleventh Circuit has provided an extra law-nerd slice of March Madness with St. Hubert.

March 20, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Rounding-up some news and commentary as SCOTUS hears argument on latest round of capital insanity

InsanityAlbert Einstein is generally credited with the aphorism that "the definition of insanity is doing the same thing over and over again, but expecting different results." That quote came to mind as I was thinking about the Supreme Court's consideration this morning of a Batson claim in Flowers v. Mississippi. Here is a brief accounting of just some of the backstory of this case (with emphasis added) from this SCOTUSblog post when cert was granted:

[T]he justices will once again review the case of Curtis Flowers, who was sentenced to death for an infamous quadruple murder at a furniture store in Winona, Mississippi.  Flowers was tried six times.  During the first four trials, prosecutor Doug Evans was twice found to have violated the constitutional ban on racial discrimination in selecting jurors: He had struck all 10 of the potential African-American jurors, while he used all of his strikes to remove African Americans from the jury pool in the third and fourth trials.  Flowers’ fifth trial deadlocked, but at his sixth trial, Evans allowed the first African-American juror to be seated but then struck the remaining five African-American jurors. 

Reviewing my blog archives, I noticed that it was nine years ago(!) that I blogged here about a local article and asked "Will sixth time be the charm in capital trial(s) of Curtis Flowers?"

Here are a few up-to-date discussions of and commentary on the case as it now comes before the US Supreme Court on the issue of whether the Mississippi Supreme Court properly applied Batson v. Kentucky in this version of the case:

March 20, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, March 19, 2019

Important new empirical work on expungement realities in Michigan

Via this great new post at the Collateral Consequences Resource Center, I see that Sonja Starr and J.J. Prescott have this great new article titled "Expungement of Criminal Convictions: An Empirical Study."  Here is the article's abstract:

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity.  This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable.  We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients.

We offer three key sets of empirical findings.  First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility.  Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.”  Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population — a finding that defuses a common public-safety objection to expungement laws.  Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.

The CCRC posting about this article highlights that the good news in the form of positive outcomes for those who get records expunged are dimmed by the bad new of low rate of expungement. The CCRC posting goes on:

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.” 

March 19, 2019 in Collateral consequences, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case

I learned last night of a remarkable new four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019) (available for download below).  Chad Marks' case has been followed for years by clemency advocates like Amy Povah, and this CAN-DO profile page has lots of background materials about his case, his requests for clemency, and all the positive work he has done since being sentenced many years ago to 40 mandatory prison years due to extreme recidivist stacking § 924(c) firearm charges. 

As informed readers know, the FIRST STEP Act eliminated the provisions of federal law that had required multiple § 924(c) firearm mandatory-minimum sentences to be stacked to include recidivist 25-year terms.  But it did not make this change retroactively applicable to offenders like Mr. Marks' who were subject to its severe terms in prior years.  This new order by US District Judge David Larimer speaks to this reality, and here is part of what it has to say:

Although the First Step Act and the Guideline changes referenced in it benefit many, it does not appear that Marks would benefit directly because the changes to Section 924(c) do not appear to be retroactive. One option now is for those in the system to say to Mr. Marks, “too bad, the changes don’t apply to you and you must serve the lengthy remainder of your 40-year term, and perhaps die in jail.”

Chad Marks has now filed a pro se motion (Dkt. #491) requesting this Court, in part, to request the United States Attorney for the Western District of New York, James P. Kennedy, Jr., to consent to vacating one of Marks’ Section 924(c) convictions, which would, in effect, remove the draconian, mandatory 25-year consecutive sentence.

Admittedly, this is not a typical request. Marks makes this request, though, relying on several cases from other districts throughout the country where the U.S. Attorney did precisely what Marks seeks here. Marks relies principally on the case of U.S. v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014). That thoughtful opinion is annexed to Marks’ motion as Exhibit A. In the Holloway case, the defendant was convicted of three Section 924(c) violations for three separate car jackings over a two-day period. He received a mandatory sentence of 57 years. In Holloway, District Judge John Gleeson remarked that such a stacking sentence “would be laughable if only there weren’t real people on the receiving end of them.”

Prosecutors spend their days seeking convictions and appropriate sentences. What is sought here is different, but in his decision in Holloway, Judge Gleeson praised the U.S. Attorney for the Eastern District of New York for agreeing to vacate a prior conviction in that particular and unusual case. He noted that prosecutors can and should use their vast power to remedy injustices in an appropriate case.

So, what to do?  Does this defendant, Chad Marks, deserve this remedy? In my more than 30 years as a district court judge, I have never known a prisoner to do more to make changes in his life while incarcerated. Marks’ acts and accomplishments while incarcerated for the last decade are truly extraordinary. Marks has obtained a college degree, participated in about 100 rehabilitative programs, has received numerous awards and citations, is engaged as a GED teacher and has mentored other inmates. Marks has recounted many of these accomplishments in his motion (Dkt. #491, page 7). The record reflects extraordinary accomplishments.

Extraordinary cases require extraordinary care and sometimes extraordinary relief.  I urge all to review Judge Gleeson’s thoughtful decision in the Holloway case. The criminal “justice” system is about justice and fairness ultimately.  Chad Marks was convicted of serious crimes, but I believe that Marks is not a danger and is not now the person convicted of these charges in 2008, which involved a rather small-scale drug case.  All of Marks’ co-defendants have completed their sentences.

I request that the United States Attorney for the Western District of New York, James P. Kennedy, Jr., carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions.  This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of “stacking.”

To facilitate that review, I request that Marks’ appointed counsel, Jillian S. Harrington, Esq. provide a filing listing in detail the many, many accomplishments, awards and other matters involving Marks while he has been incarcerated. In addition, counsel should list the scores of rehabilitative programs that Marks successfully completed.  Marks has described many of his accomplishments in his pending motion, but I leave it to counsel to provide a detailed supplement to assist the U.S. Attorney’s review as well as this Court’s.

Download 3-18-19 LARIMER ORDER

I am so very pleased to see this federal judge enter this formal order urging the US Attorney to vacate a charge in order to do justice in this extraordinary and compelling case.  However, I keep using the term "extraordinary and compelling" in this post because I do not think the federal judge here has to rely on the US Attorney to do justice in this case now that the FIRST STEP Act has changed the process around judicial consideration of sentence modifications under 18 U.S.C. § 3582(C)(1)(A).

As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction." This is what gets described often as the "compassionate release" provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find "extraordinary and compelling reasons warrant such a reduction." As I read this new Marks order, I think Judge Larimer has already essentially made such a finding.

That all said, even though I think Judge Larimer has authority to do justice for Mr. Marks without awaiting action by the local US Attorney, I still think it strategically wise to see the prosecution's involvement in his effort to do justice. With the buy-in by the local prosecutor and vacating of a one of Mr. Marks' 924(c) convictions, there would likely be no appeal and likely no impediment to a Mr. Marks getting released in short order. If Judge Larimer were to act on his own using § 3582(C)(1)(A), however, the feds could possibly appeal and seek to block any early release.

March 19, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 18, 2019

"Don't Overlook First Step Act Pilot Programs"

The title of this post is the title of this notable new Law360 commentary authored by By Addy Schmitt and Ian Herbert.  I recommend the piece in full, and here are excerpts (with footnotes omitted):

Much attention has been paid to the provisions in the law designed to address systemic issues for defendants in drug cases.... The First Step Act also includes numerous changes to address quality-of-life issues for current inmates and to help individuals transition back to society following their incarceration....

However, two programs are particularly notable because of the potential they hold to reduce prison sentences for certain prisoners by up to one-third.  The first is a pilot program that will allow the Bureau of Prisons to release to home confinement inmates over 60 years old who have served at least two-thirds of their sentences.  The second is a recidivism reduction program that will allow prisoners to earn credit worth up to one-third of their sentences for participation in programming designed to reduce recidivism.

Both programs have their faults and come with caveats.  As others have written, Congress gave the attorney general great power to decide how to implement the programs, which could hamper their effectiveness.  But combined, the two programs have the potential to offer substantial reductions in sentences, particularly to elderly and nonviolent prisoners....

One of the most profound changes that the First Step Act makes for currently incarcerated individuals is to reauthorize and expand a pilot program that allows for early release to home confinement for elderly, nonviolent prisoners.

The pilot program was created by the Second Chance Act of 2007, but it contained some important restrictions that reduced the impact of the program.  First, it was not required at all BOP facilities.  Second, it only applied to prisoners over 65 years old who had served the greater of 75 percent of their sentence or 10 years in prison.  Third, prisoners who were serving life sentences or who had been convicted of crimes of violence, sex offenses or terrorism-related offenses were ineligible, as were prisoners who attempted to escape.

The First Step Act changed the first two of these restrictions (though it left the requirements in the third).  The First Step Act directed the attorney general to make the program available at all BOP facilities, reduced the eligibility age to 60 years old, reduced the amount of time that a prisoner had to serve before being eligible from 75 percent to two-thirds of his or her sentence, and, most importantly, removed the requirement that the prisoner must serve at least 10 years prior to becoming eligible.

The result of these changes is that nonviolent prisoners over 60 could serve as much as one-third of their prison sentence in home confinement rather than in a BOP facility.

Unfortunately, these substantial reductions in terms of imprisonment are not yet guaranteed.  Though the law says that the attorney general “shall conduct a pilot program” in all facilities, it does not require release of anyone, saying only that the attorney general “may release some or all eligible elderly offenders” to home confinement.

However, while the attorney general is not required to release any prisoners under the pilot program, a separate provision of the First Step Act mandates that the BOP shall “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted” under the law.  Thus, the elderly release pilot program, coupled with the directive to move low-risk prisoners to home confinement, sends a clear signal that Congress intended for the attorney general to utilize the benefits of home confinement.

The pilot program began with the start of fiscal year 2019, and the attorney general is given authority to release eligible offenders upon written request from the BOP or prisoners who meet the criteria described above.  For that reason, nonviolent prisoners over 60 years old who have served more than two-thirds of their sentence should request to take part in the program immediately.

March 18, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

SCOTUS takes up Miller retroactivity, unanimous juries, the insanity defense and criminal preemption in latest order list!

The Supreme Court is back in action this morning and today's order lists includes a list of four cases in which certioriari is granted.  Four criminal grants would enough to warm a chilly morning for me, but all four cases involve fairly "big ticket" concerns.  With the help of SCOTUSblog, here is the list of granted cases: 

Mathena v. Malvo18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding — in direct conflict with Virginia’s highest court and other courts — that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

 

Ramos v. Louisiana18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

 

Kahler v. Kansas18-6135

IssueWhether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

 

Kansas v. Garcia, 17-834

Issue: Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications.

With so many Graham and Miller follow-up cases in the pipeline, I am not especially thrilled to see the Justices now decide to take up the Malvo case involving a government appeal of a (high-profile) defendant's win on a Miller retroactivity issues. Still, in the wake of the interesting mess that was Montgomery (see my little commentary, "Montgomery's Messy Trifecta), and the addition of two new Justices since then, I am grateful that these enduringly important issues are getting any at all.

Meanwhile, as the Malvo case might only cover a little issue, Ramos, Kahler and Garcia all cover big issues on a big canvas (though the result in Ramos seems easy to predict).  And, as always, I welcome reader input on what to expect or look forward to in these arenas.

March 18, 2019 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, March 15, 2019

Rounding up some commentary on Gov Newsom's formal halting of executions in California

Given that there were no executions in California during the second term of Gov Arnold Schwarzenegger or during the two terms of Gov Jerry Brown, I was not expecting to see California's execution chamber suddenly getting a lot of use once Gavin Newsom took over.  But, as reported here, just two months into office, Gov Newsom formalize matters by ordering an "executive moratorium ... in the forms of a reprieve for all people sentenced to death in California."  Here is a smattering of commentary about this move:

March 15, 2019 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Thursday, March 14, 2019

"The Source of the Stink: A Private Delegation Framework for Recidivism Risk Assessment"

The title of this post is the title of this recent paper authored by Andrea Nishi now available via SSRN. Here is its abstract:

This paper explores the use of privately developed risk assessment algorithms in criminal sentencing, arguing that these tools are developed in a way that hinders the enforcement of constitutional protections and gives private algorithm developers undue influence in sentencing determinations.  Using the private delegation doctrine, which limits Congress's ability to delegate to private actors, the paper aims to strengthen the state statutory frameworks that govern the use of these tools to restore accountability to the sentencing process.

March 14, 2019 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Wednesday, March 13, 2019

New California Gov to order moratorium on executions in his state

As reported in this local piece, headlined "Gov. Gavin Newsom to stop death penalty in California, giving reprieves to 737 death row inmates," there is big death penalty news from the Golden State.  Here are the details:

Gov. Gavin Newsom is putting a moratorium on the death penalty in California, sparing the lives of more than 700 death-row inmates.  Newsom plans to sign an executive order Wednesday morning granting reprieves to all 737 Californians awaiting executions – a quarter of the country’s death row inmates.

His action comes three years after California voters rejected an initiative to end the death penalty, instead passing a measure to speed up executions.

Newsom says the death penalty system has discriminated against mentally ill defendants and people of color. It has not made the state safer and has wasted billions of taxpayer dollars, according to prepared remarks Newsom plans to deliver Wednesday morning when he signs the order.

“Our death penalty system has been – by any measure — a failure,” Newsom plans to say. “The intentional killing of another person is wrong. And as governor, I will not oversee the execution of any individual.”

California has not executed anyone in more than a decade because of legal challenges to the state’s execution protocol. But executions for more than 20 inmates who have exhausted their appeals could have resumed if those challenges were cleared up, and Newsom has said he worried that it could happen soon.

Newsom has been a longtime opponent of the death penalty. While campaigning for a measure to repeal the death penalty in 2016, he told The Modesto Bee editorial board he would “be accountable to the will of the voters,” if he were elected governor. “I would not get my personal opinions in the way of the public’s right to make a determination of where they want to take us” on the death penalty, he said.

The moratorium will be in place for the duration of Newsom’s time in office, the governor’s office said. After that, a future governor could decide to resume executions.

California is one of 31 states with capital punishment.  In recent years, other states have abolished the death penalty and several other governors have placed moratoriums on executions. The California Constitution gives the governor power to grant reprieves to inmates, providing he reports his reasoning to the Legislature.

But Newsom’s action will anger death penalty proponents. “The voters of the State of California support the death penalty.  That is powerfully demonstrated by their approval of Proposition 66 in 2016 to ensure the death penalty is implemented, and their rejection of measures to end the death penalty in 2016 and 2006, said Michele Hanisee, president of the Association of Deputy District Attorneys, in a statement late Tuesday.  “Governor Newsom, who supported the failed initiative to end the death penalty in 2006, is usurping the express will of California voters and substituting his personal preferences via this hasty and ill-considered moratorium on the death penalty.”

Preventing executions through a blanket action is an abuse of the governor’s power, death-penalty supporter Kent Scheidegger told The Bee in an interview earlier this month. The governor’s clemency powers are designed to correct individual cases of injustice, said Scheidegger, legal director for the Criminal Justice Legal Foundation.  “It’s not supposed to be a weapon for blocking the enforcement of the law that the people have passed just because the governor disagrees with it,” Scheidegger said.

In addition to the moratorium, Newsom’s order will also withdraw California’s legal injection protocol and close the execution chamber at San Quentin, where all death row inmates are imprisoned.  Those on death row will remain in prison under the order.

I suspect this moratorium order may be challenged in court, but I doubt there is functionally much that can be done to undo this moratorium given that there has been de facto moratorium in place for more than a decade already.

UPDATE: Over at California Correctional Crisis, Hadar Aviram has this lengthy posting about the moratorium and its implications under the title "Moratorium!!! What Does It Mean?"

ANOTHER UPDATE: This press release from Governor Newsom's office provide a link to this official executive order which orders, inter alia, the "executive moratorium ... in the forms of a reprieve for all people sentenced to death in California."  And I have now seen that Prez Trump had this tweet about this development this morning: "Defying voters, the Governor of California will halt all death penalty executions of 737 stone cold killers. Friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!" 

March 13, 2019 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Tuesday, March 12, 2019

"Prosecutors and Frequent Utilizers: How Can Prosecutors Better Address the Needs of People Who Frequently Interact with the Criminal Justice and Other Social Systems?"

The title of this post is the title of this new publication from the John Jay College of Criminal Justice's Institute for Innovation in Prosecution emerging from its series on Reimagining the Role of the Prosecutor in the Community. This paper is authored by John Choi, Bob Gualtieri, Jeremy Travis, and Allison Goldberg, and here is part of the start of this document:

Criminal justice involvement is often the culmination of unmet needs, according to an increasing body of research, testimony, and other evidence.  For many individuals who are arrested and charged, a combination of challenges — including mental illness, substance use, poverty, and trauma — can lead to frequent stays in the local jail, emergency room, and homeless shelter.  But very few of these stays lead to adequate care or address long-term needs.  Rather, social systems — criminal justice, health, and housing, for example  — traditionally exist in silos and operate on an “event-by-event basis,” with little coordination between them about how to address the overlapping populations they serve.  For those who cycle between these systems, often referred to as “frequent utilizers,” these stays offer few off-ramps from the criminal justice system or long-term resources.

For jurisdictions, this results in an ineffective use of public funds and an inadequate response to the needs of frequent utilizers and their communities.  While practitioners, policymakers, academics, and people directly impacted have described this cycle for years, innovations in data and technology offer new avenues to better understand and address the needs of those who frequently interact with the criminal justice and other social systems.  Through collaboration between criminal justice stakeholders, service providers, community organizations, and researchers, jurisdictions across the country are harnessing the power of data to develop new strategies to combat this cycle, invest in long-term solutions, and better meet the needs of frequent utilizers and their communities....

This paper grapples with how prosecutors can develop and implement responses that better meet the needs of frequent utilizers in ways that are also consistent with the prosecutor’s broader responsibilities.

March 12, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, March 11, 2019

Making (belated) case for a Prez to "choose nominees who will help dismantle mass incarceration"

James Forman has this notable new New York Times op-ed about Supreme Court nominations and the field of potential challengers to Prez Trump under the full headline "The Democratic Candidates Should Tell Us Now Who They’ll Put on the Supreme Court. And they should choose nominees who will help dismantle mass incarceration."  I recommend the piece in full, and here are excerpts:

In a country that locks up more of its citizens than any other, we should demand that candidates for president have a plan for how they will confront mass incarceration and repair the harms it has caused.  While most of the action in our criminal system takes place at the state and local level — almost 90 percent of prisoners are incarcerated in state, county, or local prisons or jails — the federal government still has an important role to play.

As Rachel Barkow, a law professor at N.Y.U., argues in her important new book, “Prisoners of Politics: Breaking the Cycle of Mass Incarceration,” judicial appointments are one of the most powerful ways that a president can influence criminal justice policy. Federal judges make rules that govern nearly every aspect of our system, from police at the beginning of the criminal process to sentencing and prison at the end.

Over the past 50 years, those rules have facilitated mass incarceration.  Judges have held that the Fourth Amendment doesn’t prohibit police from racially profiling drivers during traffic stops, that the Sixth Amendment permits trials with underfunded defense lawyers who present little evidence or argument, and that the Eighth Amendment is no bar to outrageous sentences like life without parole for drug possession.

How did our legal landscape become this anti-defendant?  In part because so many federal judges are former prosecutors. Ms. Barkow reports that 43 percent of federal judges have been prosecutors, while 10 percent have been public defenders.

A judge’s career background doesn’t always predict her rulings — Justice Sonia Sotomayor, a former prosecutor, often stands up for the accused.  But she is the exception.  Federal judicial opinions typically read as if their authors have given little thought to how an excessively punitive criminal justice system can ruin lives, decimate families and lay waste to entire communities.

To upend this dynamic, Democratic presidential candidates must commit themselves to appointing federal judges who will work to challenge mass incarceration.  This will mean going beyond anything President Barack Obama attempted. When Mr. Obama wrote a 55-page law review article on what a president could do to push criminal justice reform, he made no mention of judicial appointments.  Worse, his appointments displayed almost the same pro-prosecution bias as his predecessors’: About 40 percent of his judicial nominees had worked as prosecutors, while some 15 percent had been public defenders.

Democratic candidates should promise to eliminate this bias by reshaping the federal bench so that it has as many former public defenders as it does former prosecutors.  The Supreme Court is a good place to start.  Remember when Donald Trump courted the conservative right by announcing the names of possible nominees several months before the 2016 election?  Any Democratic candidate who wants to win the votes of a Democratic electorate increasingly focused on criminal justice reform should make a similar announcement — and populate the list with lawyers who have seen the criminal system from the standpoint of the accused.

There is no shortage of quality names.  High on my list would be Bryan Stevenson, a career death penalty opponent, consummate Supreme Court litigator and founder of the Equal Justice Initiative in Alabama.  Or Michelle Alexander, former law clerk for Justice Harry Blackmun, civil rights lawyer and author of the canonical “The New Jim Crow.” (Ms. Alexander is also an opinion columnist for The New York Times.)  Or Sherrilyn Ifill, a voting rights expert and head of the NAACP Legal Defense Fund, the civil rights firm founded by Thurgood Marshall in 1940.

These aren’t the names that typically appear on Democratic short lists. They aren’t sitting judges, and unlike many who now serve on the federal bench, they’ve taken unpopular stands, sometimes at great risk.  As a result, my list might sound unconventional, even outlandish, to those accustomed to the traditional approach to judicial selection.  But it shouldn’t.  With impeccable credentials, unassailable legal acumen and a fierce determination to take down mass incarceration, these are the future nominees whose names should start rolling off the tongues of Democratic candidates who want to be taken seriously as criminal justice reformers.

I am very pleased to see this issue getting attention as the 2020 race starts to heat up. But, as long-time readers know, I think this issue should have been a focal point for reformers for more than a decade and should lead to distinctive analysis of the work of recent Presidents. I am pleased to see some very justified criticisms of Prez Obama on this front (though the failure to mention the Garland appointment blunder is telling), but how about also criticizing Hillary Clinton for not creating a nominee list to compete with the one put out by candidate Trump? How about noting, though this does not play to political bases, that Justice Neil Gorsuch had a smidgen of defense lawyering experience in law school and he has already show a willingness to vote for more defendants' rights than his conservative colleagues?

I could go on and on, but I mostly want to praise Prof Forman for elevating these issues, issues that I hope all the Prez candidates feel bound to engage.

March 11, 2019 in Campaign 2016 and sentencing issues, Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Saturday, March 09, 2019

"Criminal-Justice Apps"

The title of this post is the title of this interesting essay authored by by Adam Gershowitz recently posted to SSRN.  Here is its abstract:

In recent years, lawyers, activists, and policymakers have introduced cell phone applications -- “criminal justice apps” -- that are very slowly beginning to democratize the criminal justice system.  Some of these apps -- such as DWI apps -- teach citizens about the law, while also connecting them with lawyers and bail bondsman.  Policymakers have created apps to help defendants navigate confusing court systems.  Still other apps are grander in purpose and seek to bring systemic changes to the criminal justice system.  For instance, the ACLU has designed an app to fight wrongful seizures and police brutality by recording police interactions. A non-profit has created an app to aggregate spare change and use it to post bail for the indigent.  This essay explores the universe of criminal justice apps and considers how they are likely to result in modest improvements to the criminal justice system.

March 9, 2019 in Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, March 08, 2019

Senator (and Prez candidate) Cory Booker introduces "Next Step Act of 2019" with wide array of sentencing and criminal justice reforms

As set forth in this press release, "U.S. Senator Cory Booker (D-NJ), a member of the Senate Judiciary Committee, and Congresswoman Bonnie Watson Coleman (D-NJ) today introduced a sweeping criminal justice bill — the Next Step Act  — that would make serious and substantial reforms to sentencing guidelines, prison conditions, law enforcement training, and re-entry efforts."  Here is more about this new (lengthy) legislative proposal from the press release:

The Next Step Act is the most comprehensive criminal justice bill to be introduced in Congress in decades. "It's been 75 days since the First Step Act was signed into law, and already, it's changing lives," Booker said.  "But the First Step Act is just as its name suggests — it is one step on the long road toward fixing our broken criminal justice system. There's more that remains to be done so that our justice system truly embodies those words etched onto our nation's highest court â?“ 'equal justice under law.' That's exactly what the Next Step Act does. It builds off the gains of the First Step Act and pushes for bolder, more comprehensive reforms, like eliminating the sentencing disparities that still exist between crack and powder cocaine, assisting those coming out of prison with getting proper work authorization and ID documents, reducing the barriers formerly incarcerated individuals face when they try to find jobs, and ending the federal prohibition on marijuana."...

Specifically, the Next Step Act would:

  • Reduce harsh mandatory minimums for nonviolent drug offenses: the 20-year mandatory minimum would be reduced to 10 years, the 10-year mandatory minimum would be reduced to 5 years, and the 5-year mandatory minimum would be reduced to 2 years.

  • Eliminate the disparity between crack and powder cocaine sentences (currently it is 18:1)

  • End the federal prohibition on marijuana, expunge records, and reinvest in the communities most harmed by the War on Drugs.

  • "Ban the Box" by prohibiting federal employers and contractors from asking a job applicant about their criminal history until the final stages of the interview process, so that formerly incarcerated individuals get a fairer, more objective shot at finding meaningful employment.

  • Removing barriers for people with criminal convictions to receiving an occupational license for jobs, such as hair dressers and taxi drivers.

  • Reinstate the right to vote in federal elections for formerly incarcerated individuals (blacks are more than four times as likely than whites to have their voting rights revoked because of a criminal conviction).

  • Create a federal pathway to sealing the records of nonviolent drug offenses for adults and automatically sealing (and in some cases expunging) juvenile records.

  • Ensure that anyone released from federal prison receives meaningful assistance in obtaining a photo-ID, birth certificate, social security card, or work authorization documents.

  • Improve the ability of those behind bars to stay in touch with loved ones, by banning the practice of charging exorbitant rates for phone calls (upwards of $400-$500 per month) and ensuring authorities take into consideration where someone's kids are located when placing them in a federal facility, a circumstance that acutely impacts women since there are far fewer women's prisons than men's prison.

  • Provide better training for law enforcement officers in implicit racial bias, de-escalation, and use-of-force.

  • Ban racial and religious profiling.

  • Improve the reporting of police use-of-force incidents (currently the Department of Justice is required to report use-of-force statistics to Congress, but states and local law enforcement agencies are not required to pass that information on to federal authorities, creating a significant gap in data that could be used to improve policies and training).

The Next Step Act is an effort to build upon the momentum of the First Step Act, which was signed into law late last year and which represents the biggest overhaul to the criminal justice system in a decade.  Booker was a key architect of the bill — he was instrumental in adding key sentencing provisions to the package after publicly opposing the House-passed version of the First Step Act first released in May 2018.  Booker also successfully fought to include provisions that effectively eliminated the solitary confinement of juveniles under federal supervision and banned the shackling of pregnant women.

The Next Step Act is based upon a number of individual bills Booker has authored, co-authored, or co-sponsored since arriving to the Senate in 2013, including the Marijuana Justice Act, the Fair Chance Act, the REDEEM Act, the Ending Racial Profiling Act, the Smarter Sentencing Act, the Dignity for Incarcerated Women Act, the Democracy Restoration Act, and the Police Reporting Information Data and Evidence Act.

I would be quite excited by a number of the substantive provisions in this bill if it had any chance of moving forward in any form.  But, for a host of political and practical reasons, this bill really serves more as Senator Booker's statement of aspirations rather than as a serious attempt to get something specific passed by Congress in the coming months.  Nevertheless, I am inclined to compliment the Senator for having so many big criminal justice reform aspirations, and the introduction of this bill will help ensure that Senator Booker keeps attention on criminal justice reform as he moves forward with his presidential campaign.

March 8, 2019 in Campaign 2020 and sentencing issues, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

"3 more steps to make 'First Step Act' work"

The title of this post is the headline of this recent Hill commentary authored by Jessica Jackson. Here are excerpts:

The First Step Act aims to transform the federal prison system, prioritize rehabilitation over punishment, and reform some of our nation’s harshest prison sentences — remnants of the outdated War on Drugs.  While getting any meaningful legislation signed into law is worthy of celebration, in most cases it is just the beginning of a much longer battle. The hard work — the part that goes mostly unnoticed — is turning intentions into actual programs, procedures and outcomes for real people. To meet those goals, the Trump administration and Congress must follow through and implement the law quickly, fully and fairly.

Some of the most important provisions have taken effect immediately....  A total of four sentencing reforms began to take effect in courtrooms across the country the day after the bill was signed. In total, they will impact 25,000 defendants every year.

But challenges to fully implementing other provisions have been significant.  Just hours after President Trump signed the First Step Act into law, the federal government entered what would become the longest partial shutdown in history.  Key employees at the Department of Justice and White House were furloughed.  To add to the chaos, the Senate had not yet confirmed an attorney general.  The Bureau of Prisons has not had a permanent director since May 2018, when Mark Inch resigned.

Because of the lack of permanent leadership and the heated battle over border security funding, the first deadline laid out in the First Step Act came and went without effective action.  By Jan. 21, the Department of Justice was supposed to form an Independent Review Committee, which would be responsible for working with the Bureau of Prisons to create a new Risk and Needs Assessment across the federal prison system. One of the most critical components of the new law, the Risk and Needs Assessment System is relied upon by other key provisions.  The Review Committee has not yet been formed and further delays could significantly derail implementation efforts....

Now that leaders in Congress have reached a budget deal to fund the government through September and Attorney General William Barr has taken his oath of office, implementation of the First Step Act must pick up the pace and make up for lost time.

First, Attorney General Barr should nominate a permanent Director of the Bureau of Prisons and establish a credible and committed leader to steer the Bureau into a better future....

Second, Congressional Appropriations committee members must continue the bipartisan spirit that carried the First Step Act onto President Trump’s desk.  They can do so by fully funding the bill in Fiscal Year 2020.  This funding will allow for the valuable programming that will help people change their lives and earn time off the amount of time they have to serve behind the prison bars.

In fact, appropriators gave BOP $200 million more than the president’s budget requested, leaving ample flexibility to begin to implement the bill’s provisions.  As passed, First Step will require $75 million a year for five years to fund the expansion of prison programming and reentry preparedness.  This funding will become necessary after the Risk Assessment system is completed.  It will also allow people inside the prisons to take valuable, life-changing classes to prepare them to come home job-ready.

Finally, Congress must wield its oversight powers to ensure that implementation moves forward effectively and efficiently.  It is important to note that I am not calling for partisan hearings where House Democrats can score political points beating up on the administration’s failings.  Nor am I calling for opportunities for hard-line Senate Republicans to continue to trumpet the alleged dangers of being “soft on crime.”

Now that the First Step Act is the law of the land, both parties have good reason to keep a close watch. President Trump championed this bill as a rare bipartisan win for his administration.  Democrats vying for their party’s nomination have campaigned on the impact the bill will have on our justice system.  Nobody wins and everybody loses (most of all people in prison and their loved ones) if the First Step does not live up to its promise.

March 8, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Thursday, March 07, 2019

Ohio Governor officially postpones three more scheduled executions

As reported here a few weeks ago, the new Governor of Ohio has imposed something of a de facto moratorium on executions because of concerns over the state's(historically troubled) lethal injection protocol.  This new local article, headlined "DeWine delays three more executions due to lethal drug concerns," reports on the last official manifestation of this unofficial execution moratorium:

After urging from a federal judge, Ohio Gov. Mike DeWine delayed three more executions today.

DeWine has said he doesn’t want to carry out another execution until the judge’s concerns with Ohio’s current method are addressed. He has directed the state Department of Rehabilitation and Correction (DRC) to come up with a new protocol after federal Magistrate Judge Michael Mertz said the “current three-drug protocol will certainly or very likely cause (the one being executed) severe pain and needless suffering.”

David Stebbins, assistant federal public defender who is involved in Ohio death penalty cases, called the governor’s move “a commendable first step.” But the defense lawyer noted Ohioans still have “no indication of what the new protocol will be, when it will be made public, or what kind of litigation schedule may ensue. On the current schedule, there is no guarantee that proper vetting can occur before the first execution in September.

In January, DeWine issued a reprieve of execution to Columbus killer Warren Henness, who had been scheduled to die Feb. 13.

So this morning DeWine delayed the death dates for Cleveland Jackson, who was scheduled to be executed May 29, to Nov. 13; Kareem Jackson, set for July 10, moved to Jan. 16, 2020; and Gregory Lott, slated for Aug. 14, now scheduled for March 12. This was not the first delay for Lott, a Cuyahoga County killer; he originally was scheduled for execution on Nov. 19, 2014.

DeWine’s office said the reprieves were granted “because it is highly unlikely that the state’s new execution protocol, which is still in the process of being developed by DRC, would have time to be litigated by scheduled execution dates. Governor DeWine is also mindful of the emotional trauma experienced by victims’ families, prosecutors, law enforcement, and DRC employees when an execution is prepared for and then rescheduled.”

A few (of many) prior recent related posts:

March 7, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Any bold predictions for Paul Manafort's (first) sentencing hearing?

As reported in this Reuters piece, "President Donald Trump’s former campaign chairman Paul Manafort will be sentenced by a U.S. judge in Virginia on Thursday for bank and tax fraud uncovered during Special Counsel Robert Mueller’s investigation into Russia’s role in the 2016 election."  Here is more reporting setting the basic context:

U.S. District Judge T.S. Ellis could deliver effectively a life sentence to Manafort, 69, if he follows federal sentencing guidelines cited by prosecutors that call for 19-1/2 to 24 years in prison for the eight charges the veteran Republican political consultant was convicted of by a jury in Alexandria last August. The sentencing hearing is scheduled for 3:30 p.m....

Manafort was convicted after prosecutors accused him of hiding from the U.S. government millions of dollars he earned as a consultant for Ukraine’s former pro-Russia government. After pro-Kremlin Ukrainian President Viktor Yanukovych’s ouster, prosecutors said, Manafort lied to banks to secure loans and maintain an opulent lifestyle with luxurious homes, designer suits and even a $15,000 ostrich-skin jacket.

Manafort faces sentencing in a separate case in Washington on March 13 on two conspiracy charges to which he pleaded guilty last September. While he faces a statutory maximum of 10 years in the Washington case, U.S. District Judge Amy Berman Jackson potentially could stack that on top of whatever prison time Ellis imposes in Virginia, rather than allowing the sentences to run concurrently. Jackson on Feb. 13 ruled that Manafort had breached his agreement to cooperate with Mueller’s office by lying to prosecutors about three matters pertinent to the Russia probe including his interactions with a business partner they have said has ties to Russian intelligence. Jackson’s ruling could impact the severity of his sentence in both cases....

Mueller’s charges led to the stunning downfall of Manafort, a prominent figure in Republican Party circles for decades who also worked as a consultant to such international figures as former Angolan rebel leader Jonas Savimbi, former Philippine President Ferdinand Marcos and Yanukovych.

Defense lawyers have asked Ellis to sentence Manafort to between 4-1/4 and 5-1/4 years in prison. They are expected to tell the judge Manafort is remorseful and that the sentencing guidelines cited by prosecutors call for a prison term disproportionate to the offenses he committed. “The Special Counsel’s attempt to vilify Mr. Manafort as a lifelong and irredeemable felon is beyond the pale and grossly overstates the facts before this court,” his lawyers wrote in their sentencing memo.

Prosecutors have not suggested a specific sentence. Mueller’s office, in court filings, said that only Manafort is to blame for his crimes, that he has shown no remorse and that his lies to prosecutors after his guilty plea should be taken into account. “The defendant blames everyone from the Special Counsel’s Office to his Ukrainian clients for his own criminal choices,” prosecutors wrote.

Manafort will be sentenced by a judge who faced criticism by some in the legal community for making comments during the trial that were widely interpreted as biased against the prosecution. Ellis repeatedly interrupted prosecutors, told them to stop using the word “oligarch” to describe people associated with Manafort because it made him seem “despicable,” and objected to pictures of Manafort’s luxury items they planned to show jurors. “It isn’t a crime to have a lot of money and be profligate in your spending,” Ellis told prosecutors.

In my very first post on this case back in October 2017 right after Paul Manafort was indicted, I noted the guideline calculations that would likely mean he was going to be facing at least 10 years of imprisonment if he were convicted of any of the most serious charges against him.  Now, roughly a year and half later, I am tempted to set the "over-under" prediction on his sentence slightly below 10 years.  Though it is hardly a bold prediction, I will here predict that Judge Ellis will impose a sentence somewhere around 100 months.  

Anyone else have predictions or prescriptions for today's high-profile federal sentencing?

Some prior related posts:

March 7, 2019 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Wednesday, March 06, 2019

Norfolk prosecutor appealing to Virginia Supreme Court after circuit judges denied effort to dismiss marijuana cases on appeal

In this post a few weeks ago, I report on an interesting tussle over low-level marijuana prosecutions in Norfolk, Virginia under the post title "Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?".  What gives this story a bit of a "man-bites-dog" quality is the fact that a local prosecutor is seeking to dismiss a bunch of marijuana possession cases, but the local judges are refusing to do so.  Consequently, we get this week's fighting news under the headline "Norfolk's top prosecutor says he's taking fight over pot cases to state Supreme Court":

The city’s chief prosecutor said he will ask the state Supreme Court to force local judges into dismissing misdemeanor marijuana cases, effectively de-criminalizing the drug in Norfolk.  Commonwealth’s Attorney Greg Underwood on Friday sent a letter to the chief judge of the city’s highest court [available here], letting him and the seven other Circuit Court judges know that Underwood would appeal their collective decision to deny motions prosecutors have made over the past two months to abandon those cases.

Two months ago, Underwood announced he would undertake several efforts to achieve what he called criminal justice reform, including no longer prosecuting misdemeanor marijuana appeals.  But since then, at least four judges have denied prosecutors’ requests to dismiss marijuana charges. The tug-of-war adds to the confusion about whether it’s OK to have a small amount of weed in the city.  Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them.

Both Underwood and the judges believe the other side is violating the state constitution’s division of powers, which mandates that “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others.”

Several, including Judge Mary Jane Hall, have said they believe the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws.  In turn, Underwood said the judges are preventing him from exercising the executive power voters gave him when they elected him the city’s top prosecutor.  Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources....

Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, Underwood has said.  In 2016 and 2017, more than 1,560 people in Norfolk were charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi said during a hearing last month. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black.

This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

The judge, Hall, admitted Fatehi made an “extremely compelling case” with his statistics on racial disparities, but said he should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said.  “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Until there’s a resolution, Underwood said in his letter, prosecutors will not handle misdemeanor marijuana appeals when simple possession is the only charge. Instead, the arresting officers will testify against the defendant without the guidance of a prosecutor — akin to the way traffic cases are heard.  This is a common practice in the lower District Court and something the Circuit Court judges have suggested. But circumventing the commonwealth’s attorney’s role in the long term would keep marijuana possession cases alive in Norfolk, thwarting Underwood’s criminal justice reform.

Prior related post:

March 6, 2019 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Spotlighting how credit score concern should be part of criminal justice reform agenda

Students in my classes, as well as long-time readers of this blog, know of my tendency to see and say that every societal issue is in some way a sentencing and criminal justice issue. The latest exhibit is this interesting new Hill commentary by Carlos Fernando Avenancio-León spotlighting how credit scores should be a concern for the ever-growing ranks of serious criminal justice reformers. The astute piece is headlined "Without access to credit, ex-cons may return to lives of crime," and here are excerpts:

Every week, more than 10,000 prisoners are released from U.S. prisons and begin the long process of reintegrating into society. For many, a successful reintegration will occur only if they can access the types of credit commonly used by all American citizens, such as credit cards and auto loans. For those unable to borrow, prospects for successful re-entry fall and recidivism risks rise. That’s bad for all of us....

Some estimates suggest a majority of former inmates engage in criminal activity after their release. An oft-cited reason is the hard time former inmates have in finding employment. That is no doubt a serious problem and one that must be addressed. However, special attention needs to be paid to a challenge that receives little: the hurdles they face in obtaining credit.

The crux of the issue for former inmates is that getting locked up typically hurts their credit scores. It’s not that credit bureaus specifically knockdown scores due to incarceration. The problem is, for obvious reasons, it’s difficult to repay loans or satisfy other debts while behind bars, so credit defaults and delinquencies pile up.

The negative financial effects continue even after release, as former inmates face severe discrimination in the labor market. Consequently, former inmates face significant impediments to accessing credit. But here is the paradox: Without credit, such individuals face myriad financial difficulties, from not being able to afford transportation or a place to live to falling victim to predatory lending and even homelessness.

Under such conditions, it is harder to get a job or make positive societal contributions. And more worrisome, such former inmates risk backsliding into criminal conduct.

In a recent study, my coauthor and I found that former inmates are much less likely to have mortgages or auto loans than non-incarcerated individuals (14 and 24 percentage points lower, respectively), and their average credit scores are about 50 points lower. Moreover, within the former inmate population, those experiencing sharper drops in credit availability are more likely to engage in future criminal activity: For each thousand dollars of available credit card limit lost, recidivism increases by 1.4 percentage points.

Accordingly, a history of incarceration and lack of access to credit creates credit-driven crime cycles for this population. Yet, after accounting for credit history and income, former inmates are less likely to default on loans than individuals who have never been incarcerated.

Because former inmates present lower credit risks, lenders extend former inmates slightly more loans, albeit not nearly enough to overcome a lending contraction driven by low credit scores. This does not mean that instances of discrimination in lending against former inmates do not happen. These, however, appear to be the exception rather than the rule....

Unfortunately, reductions in credit scores caused by lower income and defaults while in jail or prison are not easily remedied. Lenders cannot readily distinguish the real reason behind a default. Proper solutions to this dilemma need to be developed together with the affected communities and the organizations that help foster re-entry.

These solutions could include a combination of providing re-entry support and education to formerly incarcerated borrowers, deferments similar to those provided in student loans or during natural disasters, shorter times for defaults to be erased from credit files or even freezing-up their credit while incarcerated.

Carefully considering credit within the discussion of criminal justice reform may provide an important avenue for improving former inmates’ chances of successfully re-entering our society — all of which can help reduce the overall rate of crime. That makes banking on former inmates a worthy investment for all of us.

March 6, 2019 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, March 05, 2019

FAMM sends letter to BOP and DOJ to urge full implementation of key provisions of the FIRST STEP Act

FAMM President Kevin Ring today sent this letter to Deputy AG Rod Rosenstein and Acting BOP Director Hugh Hurwitz urging them to work to fully implement key provisions of the FIRST STEP ACT. Here are a few passages from the start of the three-page letter:

Seventy-four days ago, President Donald J. Trump signed the First Step Act, bipartisan legislation to reform federal sentencing laws and prison policies.  The new law includes provisions to establish an elderly offender home detention program, require the Bureau of Prisons (BOP) to keep incarcerated individuals closer to their families, and increase the amount of good time from 47 days to 54 days per year, among others.  We are writing to urge you to implement these changes as expansively and quickly as possible.

FAMM is a national sentencing and prison reform organization with deep ties to people who are incarcerated and their loved ones.  FAMM regularly writes to nearly 40,000 federal prisoners and their families and loved ones with news about legal, legislative, and policy developments that could affect them.  And, we hear from many prisoners about their experiences.

We have heard from dozens of individuals who believe their incarcerated loved ones qualify for home detention under the Elderly Offender/Terminally Ill Offender Pilot Program. Section 603 of the First Step Act reauthorized and expanded the pilot program initially provided for in Section 231(g) of the Second Chance Act.  Under this program, certain elderly and elderly terminally ill prisoners may be released from prison early if they are at least 60 years old, have served two-thirds of their sentences, and meet various other requirements.  We believe Congress intended that this program take effect immediately upon passage of the First Step Act and be available in all BOP institutions.

To date, however, we are not aware that anyone has been released or even that the program has been established.  This delay stands in sharp contrast to the Bureau's timely release of program guidance for the expanded compassionate release program, also a product of the First Step Act.  The failure to implement the law in this area has been extremely frustrating for families who are anxious to welcome their elderly and terminally ill loved ones home to serve their sentences.  We urge you to immediately begin implementing Section 603 in all BOP facilities.

March 5, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

"The Case for a Trial Fee: What Money Can Buy in Criminal Process"

The title of this post is the title of this interesting new article by Darryl Brown now available via SSRN. Here is its abstract:

Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty” — harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement.  States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights.  Additionally, defendants can pay for optional advantages.  Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide.  Paying bail yields pretrial liberty.  Diversion programs, for a fee, can supplant ordinary prosecution.  Some defendants can choose their sentence — a fine or jail.  But these opportunities are not available to all; their costs need not match one’s ability to pay.

To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee.  Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas.  In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain.  The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth.  Yet the trial fee also promises positive effects.  It would reduce prosecutors’ most-criticized bargaining tactics — excessively harsh trial penalties — without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes.  And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place

March 5, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Georgia Supreme Court unanimously declares state's approach to lifetime GPS monitoring for sex offenders violates Fourth Amendment

The Supreme Court of Georgia issued a notable unanimous opinion yesterday in Park v. Georgia, No. S18A1211 (Ga. March 4, 2019) (available here), declaring unconstitutional the state's lifetime GPS monitoring requirement for certain sex offenders. The opinion for the court authored by Chief Justice Melton starts this way:

We granted an interlocutory appeal in this case to address Joseph Park’s facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator – but who is no longer in State custody or on probation or parole – wear and pay for an electronic monitoring device linked to a global positioning satellite system (“GPS monitoring device”) that allows the State to monitor that individual’s location “for the remainder of his or her natural life.” Id. at (e). For the reasons that follow, we conclude that OCGA § 42-1-14(e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the extent that it does so.

Notably, a concurring opinion by Justice Blackwell seems interested in helping the state legislature find a work around to this ruling. His opinion starts this way:

The General Assembly has determined as a matter of public policy that requiring some sexual offenders to wear electronic monitoring devices linked to a global positioning satellite system promotes public safety, and it enacted OCGA § 42-1-14(e) to put that policy into practice. The Court today decides that subsection (e) is unconstitutional, and I concur fully in that decision, which is driven largely by our obligation to faithfully apply the principles of law set forth by the United States Supreme Court in Grady v. North Carolina, ___ U.S. ___ (135 SCt 1368, 191 LE2d 459) (2015).  I write separately, however, to emphasize that our decision today does not foreclose other means by which the General Assembly might put the same policy into practice.

Our decision rests in significant part on the fact that subsection (e) requires some sexual offenders to submit to electronic monitoring even after they have completed the service of their sentences.  But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.

March 5, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge denies request by Philly DA to vacate state death sentence

As reported in this local article, headlined "Judge denies Krasner office’s request to vacate death penalty in 1984 double murder," an effort by the current Philadelphia District Attorney to undo some work by prior DAs hit a federal snag. Here are the interesting details:

A federal judge on Monday denied a request by the Philadelphia District Attorney’s Office to vacate the death penalty for a Philadelphia man convicted of the 1984 strangulation and drowning deaths of a prominent pastor’s son and daughter-in-law in their East Mount Airy home.

U.S. District Judge Mitchell Goldberg wrote that for three decades, the DA’s Office had “consistently and zealously opposed” inmate Robert Wharton’s efforts to overturn his conviction and death sentence. Early last month, the office informed the judge it would no longer fight the appeal. Max Cooper Kaufman, supervisor of the federal litigation unit under District Attorney Larry Krasner, wrote that the decision came after the office reexamined the case and communicated with the victims’ family.

In his written opinion, Goldberg described the deaths of Bradley Hart, 26, and his wife, Ferne, 31, as “particularly horrific” and noted the DA’s Office didn’t explain the reason behind what he called "this complete reversal of course.” He ordered both parties to submit briefs explaining their positions.

Krasner, a former criminal defense lawyer who took office last year, campaigned on a platform of never seeking the death penalty. His spokesperson, Ben Waxman, said by email Monday that the office had no comment on Goldberg’s ruling “except to say that we are reviewing the opinion and considering next steps in the case." The Federal Community Defender Office, which is representing Wharton, did not immediately respond to a request for comment.

Wharton’s co-defendant, Eric Mason, was sentenced to life in prison. Both men, construction workers from Germantown, were 20 at the time of the murders. Now 56, Wharton is on death row at the State Correctional Institution-Phoenix in Montgomery County.

According to evidence in the case, on the night of Jan. 30, 1984, Wharton and Mason went to the Harts’ home, tied up the couple, and separated them. Wharton choked Ferne Hart with a necktie and drowned her in a bathtub. Mason denied killing anyone, but was accused by Wharton of killing Bradley Hart by forcing his face in water and strangling him with an electrical cord....

In April 1992, the Pennsylvania Supreme Court partially granted Wharton’s appeal, ordering a new sentencing hearing. That December, a second Philadelphia jury reimposed the double-death sentence for Wharton. In December 2002, then-Gov. Mark Schweiker signed his death warrant, but the execution was stayed after Wharton appealed to federal court.

Goldberg in 2012 denied his petition, but an appellate court sent it back to the district judge on just one claim — whether his lawyer was ineffective for failing to tell the jury about Wharton’s adjustment to prison. That was the claim the District Attorney’s Office last month said it would not fight. The DA’s Office also asked the judge to grant summary relief by taking the death penalty off the table and said that if the judge did so, prosecutors wouldn’t seek a new death sentence in state court.

Krasner has received pushback by the judiciary in at least one other case in which his office tried to throw out a death sentence. In October, Pennsylvania Supreme Court Justice Christine Donohue wrote in a majority opinion that a jury had approved the death penalty for Lavar Brown, and the DA’s Office couldn’t change that result “based upon the differing views of the current office holder.”

Pennsylvania’s death penalty has been used just three times since it was reinstated by the state in 1978. Gov. Tom Wolf imposed a moratorium on its use in 2015. Wolf’s spokesperson said Monday that the governor believes the moratorium should continue in light of a June 2018 report by a bipartisan legislative task force and advisory committee, which found various problems concerning the death penalty.

Because I have not yet had time to find Judge Goldberg's opinion, I am disinclined to comment on the specifics yet. But the case presents a fascinating set of issues concerning finality, prosecutorial discretion and the interplay of federal and state authority over capital prosecutions. And, as it always the case when I learn about long-running capital cases, I cannot help but wonder what litigation over the death penalty has cost (and will continue to cost) state and federal taxpayers here.

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

Monday, March 04, 2019

Third Circuit panel rules sex offenders subject to registration laws in Pennsylvania are "in custody" for habeas purposes

Last week, a unanimous panel of the Third Circuit issued what seems to be a groundbreaking ruling about habeas jurisdiction. In Piasecki v. Court of Common Pleas, No. 16-4175 (3d Cir. Feb 27, 2019) (available here), the Third Circuit distinguished a variety of contrary rulings from other circuits to hold that a registered sex offender in Pennsylvania is “in custody” for purposes of having jurisdiction to bring a habeas corpus challenge. Here is how the opinion starts and ends:

We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction.  We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.  Accordingly, we will reverse the District Court and remand for further proceedings.....

The writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”  The scope of the writ has grown in accordance with its purpose — to protect individuals against the erosion of their right to be free from wrongful restraints upon their liberty.  SORNA’s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally.  The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction.  For all of the reasons set forth above, the order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

March 4, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, March 03, 2019

Reviewing the modern reality of robust conservative support for criminal justice reform

Long-time readers know I have been talking for a very long time about a possible "new right" on a range of sentencing and corrections issues.  This post way back in January 2005 asked "Is there a 'new right' on criminal sentencing issues?" and this article in December 2008 explained why principled modern conservatives should be troubled by mass incarceration, and this post in November 2010 wondered "When and how will state GOP leaders start cutting expensive criminal justice programming?". 

But, happily, it is no longer cutting-edge to be talking about folks on the right supporting criminal justice reform.  Three years later, it bears recalling that a majority of the GOP candidates for President in 2016 had a record of support for criminal justice reform.  And, remarkably, the one 2016 GOP candidate with arguably the worst record on these criminal justice reform issues (Donald Trump) went on sign the most significant federal criminal justice reform bill in a generation in the form of the FIRST STEP Act.  And, before and since the 2016 election, many conservative leaders in many red states have been actively advocating and securing significant state-level criminal justice reforms.  

These political realities have found interesting expression in recent days, in part because the annual Conservative Political Action Conference (CPAC) that took place last week had more than its share of notable criminal justice programming.  Here are some new articles and commentaries resulting from that conference and the broader realities that its programming reflects:

March 3, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Notable new materials from the Drug Policy Alliance on drug decriminalization in Portugal

There is no shortage of talk about trying to move from a criminalization approach to a public health model in response to drug use and misuse, but there often is a shortage of resources examining efforts to make this move. Thus, I am very pleased to see that the Drug Policy Alliance (DPA) has some terrific new resources on this topic.  This DPA press release, titled "DPA Releases New Briefing Paper & Video, Drug Decriminalization in Portugal: Learning From a Health and Human-Centered Approach," provide a link, background and some details:

The Drug Policy Alliance is releasing a new video and briefing paper examining the human impact and lessons to be drawn from Portugal’s removal of criminal penalties for the possession of drugs for personal use.
 
In March 2018, DPA led a delegation of advocates from 35 racial justice, criminal justice, and harm reduction organizations across the U.S. to Portugal to learn from its health and human-centered approach to drug use.  The group included individuals and organizations representing those hit hardest by the drug war — from those who have been incarcerated for drug offenses to those who have lost loved ones to an overdose. 

Since Portugal enacted drug decriminalization in 2001, the number of people voluntarily entering treatment has increased significantly, overdose deaths and HIV infections among people who use drugs have plummeted, incarceration for drug-related offenses has decreased, and rates of problematic and adolescent drug use has fallen....

By contrast, in the United States, the dominant approach to drug use is criminalization and harsh enforcement, with 1.4 million arrests per year for drug possession for personal use — that makes drug possession the single most arrested offense in the United States. Disproportionately, those arrested are people of color: black people are three times as likely as white people to be arrested for drug possession for personal use.  In addition to possible incarceration, these arrests can create devastating barriers to access to housing, education and employment that systematically oppress entire populations.  Meanwhile, 72,000 people are dying every year of overdose in the United States....
 
While several other countries have had successful experiences with decriminalization — including the Czech Republic, Spain and the Netherlands — Portugal provides the most comprehensive and well-documented example. The success of Portugal’s policy has opened the door for other countries to rethink the practice of criminalizing people who use drugs.  Delegation participants generally agreed that it’s time for the United States to do so as well.
  
“I really would love to see the public health community step up and really demand that the criminal justice system separate themselves,” said Deon Haywood, executive director of New Orleans-based Women With A Vision, who joined DPA’s delegation.  “They need to divest from each other. Addiction should be handled as a public health issue.  Drug use should be handled as a public health issue.  The criminal justice system needs to let go.” 
  
As detailed in a recent DPA report, It’s Time For the U.S. to Decriminalize Drug Use and Possession, there’s an emerging public, political, and scientific consensus that otherwise-law-abiding people should not be arrested simply for possessing an illegal drug for personal use.  A broad range of stakeholders — from the American Public Health Association & World Health Organization to the Movement for Black Lives & NAACP — have taken positions in favor of drug decriminalization.

March 3, 2019 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Saturday, March 02, 2019

Spotlighting the role of prosecutors as the death penalty fades away in Pennsylvania

Mc-1551374127-s7rtr2h4xf-snap-imageThis lengthy local article, headlined "Death penalty has fallen out of favor with Pennsylvania prosecutors," reports on the steady decline in capital prosecutions and death sentences in the Keystone state in recent decades. Here are excerpts:

Pennsylvania’s death penalty is, by all accounts, embattled.  There hasn’t been an execution in two decades, even before Gov. Tom Wolf imposed a moratorium on them in 2015. The courts have long scrutinized death sentences, throwing out scores of them at appeal.  And juries have become more hesitant to impose the state’s ultimate punishment.  A long-awaited legislative study recently called for a host of reforms.

But a surprising factor is quietly contributing to the death penalty’s decline in Pennsylvania: Prosecutors are increasingly reluctant to pursue capital murder charges, given the high financial cost and lengthy legal battles they guarantee, and the improbability the sentences will ultimately be carried out.

In 2004, 40 percent of murder convictions in Pennsylvania started as death-penalty cases, according to a review of state data by The Morning Call.  By 2017, that number had dropped more than threefold, to 12 percent of murder convictions, the lowest rate in 14 years....

The Morning Call’s figures offer a first accounting of the waning frequency with which the state’s 67 elected district attorneys pursue capital punishment, data that state government does not track.  For its analysis, the newspaper reviewed 4,184 murder convictions in Pennsylvania from 2004 to 2017, using docket sheets, appellate court records and local media accounts to determine whether they were ever listed as capital cases....

The findings showed that in 2004, there were 309 murder convictions statewide, of which 123 started as death-penalty prosecutions.  In 2017, there were 271 murder convictions, of which 33 saw the filing of capital charges.

The downward trend held generally year to year, though there were occasional bumps.  It was driven by Philadelphia, which has long dominated Pennsylvania’s death-penalty cases, but was also seen in the rest of the state, though some individual counties such as Bucks, Chester and Lancaster saw little or no change.  And the numbers should only fall further in the coming years, amid the tenure of Philadelphia District Attorney Larry Krasner, a self-described progressive who took office in 2018 vowing to never pursue the death penalty....

Death sentences are falling across the nation, said Robert Dunham, a former federal public defender in Pennsylvania who now heads the Death Penalty Information Center, a Washington, D.C., nonprofit.  “Pennsylvania reflects that pattern,” Dunham said. “What we’re seeing is that prosecutors have realized these cases are likely to not result in a death sentence.”...

Amid that, the governor’s moratorium remains in effect, with little movement in the Legislature to take up capital punishment.  Wolf tied his decision to a Senate-commissioned report on the death penalty, a long-delayed study that was released in June after seven years of preparation.  The report offered a raft of potential reforms, including calls for a state-funded capital defender’s office, and more protections to prevent the execution of the mentally ill and intellectually disabled.

Wolf will continue blocking executions until the death penalty’s problems are corrected, said J.J. Abbott, a spokesman for the governor.  “He looks forward to working with the General Assembly on their plans to address the report and its recommendations for legislative changes, all of which he believes should be debated and considered,” Abbott said in a prepared statement.

Whether there is momentum to take up the death penalty — either to repeal it or to fix it with an eye to resuming executions — remains unclear.

State Rep. Rob Kauffman, the chairman of the House Judiciary Committee, said he is open to re-examining capital punishment, considering its cost to taxpayers and the lack of executions.  But he said it just isn’t a big topic in Harrisburg.  “There’s a lot that has been talked about regarding criminal justice reform, but this is not one of those front-burner issues,” said Kauffman, R-Franklin.

In the meantime, the number of inmates on death row continues to fall, as do the number of new death sentences.  In 2018, juries added only one killer to death row in Pennsylvania.

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

Friday, March 01, 2019

"The Lingering Stench of Marijuana Prohibition: People with pot records continue to suffer, even in places where their crimes are no longer crimes."

The title of this post is the title of this great new article by Jacob Sullum at Reason. I recommend the article in full, as it goes through the expungement law of each state which has now fully legalized marijuana for adult use and tells stories of individuals still stuggling with the lingering impact of marijuana prohibition. Here is part of the start of the piece:

Franklin Roosevelt, who took office in the final year of Prohibition, issued some 1,300 pardons for alcohol-related offenses during his first three terms. As a 1939 report from the Justice Department explained, "pardon may be proper" in light of "changed public opinion after a period of severe penalties against certain conduct which is later looked upon as much less criminal, or as no crime at all." The report cited Prohibition as "a recent example."

That logic made sense to governors as well. When Indiana repealed its alcohol prohibition law in 1933, Gov. Paul McNutt (D) issued pardons or commutations to about 400 people who had been convicted of violating it. "If these men were kept in prison after the liquor law is repealed," he said, "they would be political prisoners."

Alcohol prohibition lasted 14 years. Marijuana prohibition has been with us almost six times as long. Police have arrested people for violating it about 20 million times in the last three decades alone. Many of those people were ultimately convicted of felonies that sent them to prison, although the vast majority were charged with simple possession and spent little or no time behind bars. Either way, marijuana offenders have had to contend with the lingering effects of a criminal record, which can shape people's lives long after they complete their sentences.

Depending on the jurisdiction and the classification of the offense, people who were caught violating marijuana laws may lose the right to vote, the right to own a gun, the right to drive a car (for up to a year), the right to live in the United States (for noncitizens), and the right to participate in a wide variety of professions that require state licenses. They may find it difficult to get a job, rent an apartment, obtain student loans, or travel to other countries. They may even be barred from coaching kids' sports teams or volunteering in public schools.

The employment consequences can be explicit, as with state laws that exclude people convicted of felonies from certain lines of work, or subtle, as with private businesses that avoid hiring people who have criminal records, possibly including arrests as well as convictions, because of liability concerns....

Such ancillary penalties seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use. In those places (which so far include 10 states, the District of Columbia, and the Northern Mariana Islands), people convicted under the old regime continue to suffer for actions that are no longer crimes.

California has gone furthest to address that problem. The state's 2016 legalization initiative authorized expungement of marijuana records, and a 2018 law will make that process easier. Demanding expungement as a remedy for injustice, activists in California emphasized the racially disproportionate impact of the war on weed: Black people are much more likely to have pot records than white people, even though they are only slightly more likely to be cannabis consumers.

Other states offer various forms of relief, ranging from generous to nearly nonexistent. All of them put the onus on prohibition's victims to seek the sealing or expungement of their criminal records, a process that can be complicated, expensive, and time-consuming....

People with marijuana records are looking for a way out in every state that has legalized recreational use, as the stories below show.

As some readers may recall, I wrote a paper last year on this topic under the title "Leveraging Marijuana Reform to Enhance Expungement Practices".  I have also covered these issues a whole lot over at Marijuana Law, Policy & Reform, and here is just a small part of that coverage:

March 1, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, February 28, 2019

"Clemency as the Soul of the Constitution"

The title of this post is the title of this notable new article authored by Mark Osler in the latest issues of the Journal of Law & Politics.  Here is part of the piece's introduction:

In this essay, I will not call for the abolition or restriction of the Pardon Power, even as we struggle with the seeming unfairness of some recent grants of clemency.  Instead, I argue that we must embrace what the Pardon Power is, and recognize the true nature of this tool of mercy.  We don’t need to drive a stake through its heart.  Rather, it requires a more consistent and committed public attention than we have given it, which among other things should include a discussion of its use by those who seek the office of president.

Section II below will offer an overview of the more striking employments of the Pardon Power, with a focus on its uses and abuses by more recent presidents.  The controversial aspects of clemency often precisely track the controversial aspects of a president’s personality; that is one reason that we see a discontinuity not only in whether clemency is used or not, but in the way that its use reflects different values in different administrations.

Section III will then look backward at the Constitution’s soul and its roots.  Clemency drew on English precedents, but its core idea of mercy was woven into the culture of the time.  For example, it is a primary theme in Shakespeare’s The Tempest — and George Washington went to see The Tempest during the Constitutional Convention.   At that Constitutional Convention, the Pardon Clause was actively debated, and its final form survived a direct challenge that proposed the power be shared with the legislature.

Finally, Section IV will consider the arguments for and against maintaining the Pardon Power as an unalloyed tool of the president. In the end, the use of clemency has been a net good, in that the positive uses have outweighed the controversies.  The institution continues to connect us to the core value of mercy, maintains the intent of the Framers, and gives hope to those who are incarcerated.  This section closes by considering what we can do when we are dismayed by the exercise of clemency, as will happen when an action follows a conscience not our own.

February 28, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, February 27, 2019

SCOTUS, ruling 6-3, refuses to let appeal waivers impact ineffectiveness claims when attorney improperly fails to appeal

The Supreme Court this morning handed down an opinion in Garza v. Idaho, No. 17-1026 (S. Ct. Feb. 27, 2019) (available here), a case concerning the distinctive Sixth Amendment jurisprudence addressing whether defense counsel has been constitutionally deficient when failing to appeal upon a defendant's instructions.  The ruling in the case is 6-3, with Justice Sotomayor delivering the opinion of the Court, which was joined by the Chief Justice as well as Justices Ginsburg, Breyer, Kagan and Kavanaugh.  Here is how the opinion gets started:

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), this Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” Id., at 484. This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver” — that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.

Justice Thomas filed a dissenting opinion, which Justices Gorsuch joined in full and Justice Alito joined in part. (The last part of the dissent reviews originalist approaches to the Sixth Amendment, and only Justice Gorsuch joined that part). The dissent starts this way:

Petitioner Gilberto Garza avoided a potential life sentence by negotiating with the State of Idaho for reduced charges and a 10-year sentence. In exchange, Garza waived several constitutional and statutory rights, including “his right to appeal.” App. to Pet. for Cert. 44a, 49a.  Despite this express waiver, Garza asked his attorney to challenge on appeal the very sentence for which he had bargained.  Garza’s counsel quite reasonably declined to file an appeal for that purpose, recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain. Yet, the majority finds Garza’s counsel constitutionally ineffective, holding that an attorney’s performance is per se deficient and per se prejudicial any time the attorney declines a criminal defendant’s request to appeal an issue that the defendant has waived.  In effect, this results in a “defendant-always-wins” rule that has no basis in Roe v. Flores-Ortega, 528 U.S. 470 (2000), or our other ineffective-assistance precedents, and certainly no basis in the original meaning of the Sixth Amendment. I respectfully dissent.

February 27, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

"Failure should not be an option: Grading the parole systems of all 50 states"

The title of this post is the title of this new report from the Prison Policy Initiative.  Here is how this report gets started:

From arrest to sentencing, the process of sending someone to prison in America is full of rules and standards meant to guarantee fairness and predictability.  An incredible amount of attention is given to the process, and rightly so.  But in sharp contrast, the processes for releasing people from prison are relatively ignored by the public and by the law.  State paroling systems vary so much that it is almost impossible to compare them.

Sixteen states have abolished discretionary parole, and the remaining states range from a system of presumptive parole — where when certain conditions are met, release on parole is guaranteed — to having policies and practices that make earning release almost impossible.

Parole systems should give every incarcerated person ample opportunity to earn release and have a fair, transparent process for deciding whether to grant it.  A growing number of organizations and academics have called for states to adopt policies that would ensure consistency and fairness in how they identify who should receive parole, when those individuals should be reviewed and released, and what parole conditions should be attached to those individuals.  In this report, I take the best of those suggestions, assign them point values, and grade the parole systems of each state.

Sadly, most states show lots of room for improvement.  Only one state gets a B, five states get Cs, seven states get Ds, and the rest either get an F for having few of the elements of a fair and equitable parole system or a zero — for having passed laws to eliminate the option of release on parole.

February 27, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, February 26, 2019

Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations

Though I have not yet had time to read the full transcript of oral argument in United States v. Haymond, which is now available here, reading Amy Howe's argument analysis at SCOTUSblog suggests the tea-leaves are easy to read after the oral argument. The posting is titled "Court poised to rule for challenger in dispute over constitutionality of sex-offender law," and here are snippets:

This morning the Supreme Court heard oral argument in a dispute over the constitutionality of a federal law that requires convicted sex offenders to return to prison for at least five years – and possibly for the rest of their lives – if a judge finds that they have committed certain crimes. The defendant in the case, an Oklahoma man who served time for possessing child pornography and was then sent back to prison after he violated the terms of his supervised release, argues that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt. Today the justices seemed overwhelmingly likely to agree with him, even if it was not entirely clear how they will remedy the constitutional violation....

Eric Feigin, an assistant to the U.S. solicitor general, defended the law on behalf of the federal government. But he was quickly interrupted by a skeptical Justice Sonia Sotomayor, who asked him whether there was any other area of the law in which the United States allows a defendant to be sent to prison based on the preponderance-of-the-evidence standard.

Feigin responded that both parole and probation operate in a similar way, but Sotomayor dismissed that analogy as comparing “apples and oranges.” With parole, she stressed, the state gives a benefit by cutting a sentence short. Where do we allow more prison time based on the preponderance of the evidence, she repeated?

Justice Brett Kavanaugh echoed Sotomayor’s thinking toward the end of Feigin’s initial stint at the lectern. When the government revokes an inmate’s parole, Kavanaugh suggested, it is simply denying a benefit. But when the government revokes an individual’s supervised release, he continued, that’s more like a penalty: The government is “adding a chunk of time on.”

Several justices also questioned the government’s contention that a jury was not required to find the facts leading to the conclusion that Haymond had violated the terms of his supervised release and the imposition of the new five-year sentence....

Only Justice Samuel Alito seemed to be squarely on the government’s side, warning that a ruling for Haymond could potentially “bring down the entire supervised release system.” As a result, much of the second half of the oral argument focused less on whether the law was unconstitutional and more on what should happen next.

I am not surprised, but I am still pleased, to learn that there may now be eight Justices prepared to extended Apprendi/Blakely rights to supervised release revocation. Now we wiat to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).

Some prior related posts:

February 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New letter urges Prez Trump "to make lasting reforms to the clemency process by removing its administration from the Department of Justice"

A number of notable folks signed on to this new letter urging Prez Trump to make changes to the federal clemency process.  Here are excerpts from the letter:

Last year, you achieved a historic accomplishment when you signed the First Step Act into law.  This new law will reduce the imposition of unjust sentences for thousands of Americans, allowing people who make a mistake the opportunity to make amends and turn their lives around.

The law primarily addresses future sentencing, however, and does little to correct the unjust nature of past sentences that have left many behind bars for far longer than their crimes warranted.  But you can deliver justice for those Americans by making full use of the pardon power for as many deserving individuals as possible and by reforming the structure of the federal clemency process to improve presidential exercise of this important constitutional authority.

During the last administration, former law enforcement officials and criminal justice reform advocates urged President Barack Obama to use his pardon power aggressively.  While President Obama's clemency initiative did lead to hundreds of deserving individuals receiving commutations, he left thousands more behind when he left office.  When President Obama’s term expired, approximately 9,400 clemency petitions remained pending.  Thousands of other individuals saw their petitions denied, despite many of them meeting most or all of the conditions the Obama administration laid out for clemency eligibility.  Furthermore, his administration never even fully considered granting sweeping clemency to broad categories of people who also deserved clemency but may not have known how to obtain an attorney or petition for relief....

[W]e urge you to make lasting reforms to the clemency process by removing its administration from the Department of Justice.  The Constitution grants the clemency power solely to the president.  There is no constitutional or legal requirement that it be overseen by DOJ.  While DOJ should be able to comment on clemency petitions, there is an obvious conflict of interest when the same agency responsible for prosecuting individuals is asked to supervise their petitions for clemency.  By changing the management of the clemency process, you could improve a process not only for your time in office, but also for your successors.  President Obama failed to fix the clemency process and instead opted to for an ad hoc approach, leaving behind thousands of people who otherwise met the stated criteria.  You can succeed where he did not and leave a lasting legacy in this area.

February 26, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Paul Manafort's sentencing memorandum in DC makes pitch for a sentence "significantly below" ten years

As reported in this Politico piece, counsel for "Paul Manafort, the former Trump campaign chairman, pleaded on Monday for a federal judge to spare their 69-year-old client from a sentence that would essentially send him to prison for the rest of his life."  Here is more about the latest sentencing filing:

In a 47-page filing, Manafort’s attorneys described a client who has been “personally, professionally, and financially” broken by special counsel Robert Mueller’s Russia investigation and who deserves a sentence “significantly” below the statutory maximum of 10 years he faces after pleading guilty in Washington to a pair of conspiracy charges.

“Mr. Manafort has been personally and financially devestated [sic] as a result of his conduct and the forfeiture he has agreed to,” his lawyers wrote. “There is no reason to believe that a sentence of years in prison is necessary to prevent him from committing further crimes.”

Manafort’s lawyers added that he “poses no risk to the public, which itself has certainly been generally deterred from engaging in similar conduct based on the widespread negative publicity this case has garnered, as well as his incarceration in solitary confinement.”

Two federal judges are scheduled to sentence Manafort twice next month over criminal charges brought by Mueller’s office, including tax and bank fraud, as well as witness tampering and unregistered lobbying for a foreign government. U.S. District Court Judge T.S. Ellis III is scheduled first in Virginia, on March 8, and U.S. District Court Judge Amy Berman Jackson in Washington goes second, on March 13.

The memo that Manafort’s attorneys submitted Monday aims to rebut Saturday’s filing from Mueller, who told Jackson that the longtime Republican operative “repeatedly and brazenly violated the law” for more than a decade and should be considered for a total sentence in the roughly 17-to-22-year range by stacking her sentence on top of the one Ellis issues.

The full filing is available at this link, and here is an excerpt from its introduction:

Mr. Manafort, who over the decades has served four U.S. presidents and has no prior criminal history, is presented to this Court by the government as a hardened criminal who “brazenly” violated the law and deserves no mercy.  But this case is not about murder, drug cartels, organized crime, the Madoff Ponzi scheme or the collapse of Enron.  Rather, at its core, the charges against the defendant stem from one operable set of facts: Mr. Manafort made a substantial amount of income working as a political consultant in Ukraine, he failed to report to the government the source and total amount of income he made from those activities, and he attempted to conceal his actions from the authorities. He has accepted full responsibility by pleading guilty to this conduct....

Mr. Manafort has been punished substantially, including the forfeiture of most of his assets. In light of his age and health concerns, a significant additional period of incarceration will likely amount to a life sentence for a first time offender.

Some prior related posts:

February 26, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Monday, February 25, 2019

Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?

Tomorrow the Supreme Court has a day of sentencing arguments scheduled, as the Justices will from counsel in United States v. Haymond and Mont v. United States.  Here are the questions presented and argument previews via SCOTUSblog:

United States v. Haymond Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

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

For hard-core sentencing fans, the Haymond case could be the sleeper of the Term because a major ruling on constitutionally required procedures for revocation of supervised release could have profound implications not only for the federal system, but also potentially for some state systems. 

I doubt that oral argument will provide any big indication of just how big a ruling Haymond could produce, but I will be particular eager to see what the newer Justices might have to say about the kind of judicial factfinding that landed Andre Haymond back in prison for a (mandatory) five years after a judge found by only a "preponderance of the evidence" that he had violated the terms of his supervised release.  I think serious originalists should be troubled by the kinds of procedures used to deprive Haymond of his liberty, but the modern tradition of lax procedures at the "back-end" of sentencing systems is considerable.  I am hoping a number of Justices might take big swings with their questions in Haymond, but lately I am thinking I should not be expecting too much from the Justices.

Some prior related posts:

February 25, 2019 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Making the conceptual and statistical case for going well beyond the FIRST STEP Act

UZU3HWQVUVE2JH5FXAH56P5MMMKeith Humphreys has this notable new Washington Post piece headlined "The new criminal justice law will modestly shrink prison populations. Should we go further?".   The piece has an important little chart that speaks interestingly to the reality of federal prison populations,and I recommend this piece in full.  Here are excerpts:

The recently enacted First Step Act reduces criminal sentences and promotes rehabilitative programs within the federal justice system. Combined with earlier reforms implemented during the Obama administration, the law should return the federal imprisonment rate back to what it was a generation ago.  But that would still leave the federal prison system with about seven times as many inmates as it had in 1980.  Could the United States ever return to a federal prison population that small, or would that unleash a horrific crime wave?

Questions about how big or small the federal prison system should be are part of the ongoing debate about mass incarceration. But they also have a unique dimension because even though the Constitution assigns most law enforcement powers to states, the federal role in prosecution and incarceration expanded in recent decades (e.g., to include many white-collar crimes, carjacking, DVD piracy, street-corner drug dealing).  As a result, the federal prison system went from accounting for only 7.4 percent of all imprisonment in 1980 to 12.6 percent of all imprisonment in 2016.  Even a decade before the federal prison system reached its peak size, a bipartisan American Bar Association task force argued that the expansion of federal law enforcement and corrections were “inconsistent with the traditional notion that prevention of crime and law enforcement in this country are basically state functions.”

Sometimes it is helpful in public policy to ask questions about first principles: Why should the federal government ever imprison anyone at all?  A common fear — which some opponents of the First Step Act stoked — is that the United States would be overwhelmed with violent crime if not for federal law enforcement and incarceration.  In reality, virtually every murder, rape, assault and battery is charged under state law and results in imprisonment at the state or local level.  The federal prison system holds only 1.8 percent of U.S. inmates serving time for violent crimes.

Federal law enforcement and imprisonment thus do not serve as the nation’s primary bulwark against violence.  But they are important in three defined contexts.

Combating state and local corruption....

Battling criminal organizations that overwhelm state and local law enforcement....

Punishing crimes specifically against the federal government....

All of the above types of crimes are destructive, and those who commit them and are sent to federal prison do not deserve our sympathy.  But it is implausible that the number of and deserved sentence length for such offenses are seven times greater than they were before the federal prison population exploded.  That reality, combined with the fact that the generational cutback in the size of the federal prison system has caused no evident problems, suggest the First Step Act should be considered just that — a first step.  The extremely broad coalition that supported the First Step Act can reasonably aim higher in its next round of proposed reform, returning the federal prison system to its traditional role as an important — but small — part of the U.S. correctional system.

February 25, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences?

Intrepid readers may realize that I have paid close attention to a case out of the First Circuit, US v. Rivera–Ruperto, because I thought it involved extraordinarily facts that made for a compelling Cruel and Unusual Punishments argument if that clause was to function as even the most minimal check on the imposition of extreme prison sentences on adult offenders.  But, frustratingly, today's Supreme Court order list has under a long list of cert denials "18-5384  Rivera-Ruperto, Wendell v. United States."  Grrrr.

Of course, I was not the only one who thought this was was exceptional: as noted here, the entire First Circuit issued a remarkable opinion last year while denying en banc review (available here) in which Judge Barron spoke for all his colleagues in urging the Justices to take up the Rivera-Ruperto to reconsider its Eighth Amendment jurisprudence.  I was sincerely hoping that this unusual statement from an entire circuit might at least get Rivera-Ruperto a single relist from the Supreme Court or maybe just a short statement from some Justices about the issue.  A single relist or a statement about a denial of cert would suggest that there was at least a single Justice who might think that a toothless Eighth Amendment is a problem in an era of mass incarceration.  (Tellingly, the legal press and criminal justice twitterverse has also entirely ignored this case, confirming my fears that one need to be a murderer on death row before just about anyone gets interested in an Eighth Amendment claim.)

I still want to hope that maybe a district court or the First Circuit could find a way to do better in this case when Wendell Rivera-Ruperto eventually brings a 2255 claim (which could now juice an Eighth Amendment argument, as I suggested here, on the fact that the FIRST STEP Act has changed the federal law that lead to his 130 years of mandatory-minimum prison time).  But even if Rivera-Ruperto is able to get some relief eventually, I am still this morning left deeply troubled by the notion that not a single Justice seems to be at all concerned about modern Eighth Amendment jurisprudence relating to extreme non-capital sentences.  Sigh. 

A few prior related posts:

February 25, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, February 24, 2019

After special favors and CVRA violation, what should happen to Jeffrey Epstein and his problem prosecutors?

The Miami Herald has done extraordinary work looking behind Jeffrey Epstein too-sweet deal, and it reports effectively here on the significant federal court ruling last week that prompts the question in the title of this post.  Here are the details:

Federal prosecutors, under former Miami U.S. Attorney Alex Acosta, broke the law when they concealed a plea agreement from more than 30 underage victims who had been sexually abused by wealthy New York hedge fund manager Jeffrey Epstein, a federal judge ruled Thursday [available here].

While the decision marks a victory for crime victims, the federal judge, Kenneth A. Marra, stopped short of overturning Epstein’s plea deal, or issuing an order resolving the case.  He instead gave federal prosecutors 15 days to confer with Epstein’s victims and their attorneys to come up with a settlement. The victims did not seek money or damages as part of the suit.

It’s not clear whether the victims, now in their late 20s and early 30s, can, as part of the settlement, demand that the government prosecute Epstein. But others are calling on the Justice Department to take a new look at the case in the wake of the judge’s ruling.

"As a legal matter, the non-prosecution agreement entered into by the U.S. Attorney’s Office in the Southern District of Florida does not bind other U.S. Attorneys in other districts. They are free, if they conclude it is appropriate to do so, to bring criminal actions against Mr. Epstein and his co-conspirators," said lawyer David Boies, representing two of Epstein’s victims who claim they were trafficked by Epstein in New York and other areas of the country.

Earlier this month, the Department of Justice announced it was opening a probe of the case in response to calls from three dozen members of Congress. Nebraska Sen. Ben Sasse, the Republican chairman of the Senate Judiciary Oversight Subcommittee, on Thursday asked the DOJ to re-open Epstein’s plea deal. "The fact that it’s taken this long to get this far is heartbreaking and infuriating," said Sasse. "The Department of Justice should use this opportunity to reopen its non-prosecution agreement so that Epstein and anyone else who abused these children are held accountable."...

Brad Edwards, who represents Courtney Wild — Jane Doe No. 1 in the case — said he was elated at the judge’s ruling, but admitted he is troubled that it took 11 years to litigate. He blamed federal prosecutors for needlessly dragging it out when they could have remedied their error after it was brought to their attention in 2008. "The government aligned themselves with Epstein, working against his victims, for 11 years,’’ Edwards said. "Yes, this is a huge victory, but to make his victims suffer for 11 years, this should not have happened. Instead of admitting what they did, and doing the right thing, they spent 11 years fighting these girls."

Marra, in a 33-page opinion, said prosecutors not only violated the Crime Victims’ Rights Act by not informing the victims, they also misled the girls into believing that the FBI’s sex trafficking case against Epstein was still ongoing — when in fact, prosecutors had secretly closed it after sealing the plea bargain from the public record.

The decision follows a three-part series published by the Miami Herald in November, "Perversion of Justice," which detailed how federal prosecutors collaborated with Epstein’s lawyers to arrange the deal, then hid it from his victims and the public so that no one would know the full scope of Epstein’s crimes and who else was involved.

The 66-year-old mogul lured scores of teenage girls from troubled homes — some as young as 13 — as part of a cult-like scheme to sexually abuse them by offering them money to give him massages and promising some of them he would send them to college or help them find careers. Future president Donald Trump, former president Bill Clinton, lawyer Alan Dershowitz, Prince Andrew and other world leaders, scientists and academics were friends with Epstein, who also owns a vast home in Manhattan, a private jet, and an island in the U.S. Virgin Islands, where he now lives....

Instead of prosecuting Epstein under federal sex trafficking laws, Acosta allowed Epstein to quietly plead guilty in state court to two prostitution charges and he served just 13 months in the Palm Beach County jail. His accomplices, some of whom have never been identified, were not charged.

Epstein’s victims were not told the case was closed until it was too late for them to appear at his sentencing and possibly upend the deal. Two of them filed a lawsuit in the U.S. District Court for the Southern District of Florida in 2008, claiming that prosecutors violated the Crime Victims’ Rights Act, which grants victims of federal crimes a series of rights, including the ability to confer with prosecutors about a possible plea deal....

Acosta, who was nominated as labor secretary in 2017, issued a written statement through a spokesman: “For more than a decade, the actions of the U.S. Attorney’s Office for the Southern District of Florida in this case have been defended by the Department of Justice in litigation across three administrations and several attorneys general. The office’s decisions were approved by departmental leadership and followed departmental procedures. This matter remains in litigation and, thus, for any further comment we refer you to the Department of Justice.”

Michelle Licata, who was molested by Epstein when she was 14, said the judge’s decision was "a step for justice." But she still questions why federal authorities have failed to open a new case against Epstein, given that more victims and evidence has come to light in recent years. "They should see if they can prosecute him for something. I mean, really prosecute him — instead of giving him 13 months where he was allowed to come and go as he pleased. I just want to see him face some consequences for what he did."

Francey Hakes, a former federal prosecutor, said the Crime Victims’ Rights Act doesn’t spell out any punishment for violating its terms, so it would set a precedent to re-open Epstein’s agreement. "Epstein will surely argue he complied with the agreement, relied upon it, and plead guilty under it so it can’t be overturned in fairness to him," she said. "I will be very interested to see what the parties say the remedy for the violation should be. Ultimately, it is simply shocking the Government went to the lengths they did to keep the victims in the dark in order to make a serious predator’s high priced defense team happy. Justice should not, and does not, look like this."

This commentary by two former federal prosecutors asserts that there should be lots of consequences from the new ruling in this matter:

Outside of the Justice Department, it also seems untenable for Acosta to be allowed to remain in his position as head of the Department of Labor — a federal agency with significant role to play in combating and prosecuting human trafficking cases and protecting the rights of minors. He should be fired or resign.

Most significantly, Epstein and anyone else involved in this crime need to be held fully accountable and the rights of the victims fully vindicated. Judge Marra has already ruled that the CVRA authorizes “the rescission or ‘reopening’ of a prosecutorial agreement, including a non-prosecution agreement, reached in violation of a prosecutor’s conferral obligations under the statute.” Judge Marra seems to be suggesting that Epstein’s agreement be voided and the federal investigation reopened. (Sen. Ben Sasse, R-Neb., has called for DOJ to do just that.)

It is always tricky to Monday morning quarterback another prosecutor’s decision: There are often facts and circumstances known only to the prosecutors that factor into whether to proceed with charges, take a case to trial or even enter into an NPA. However, given the many deficiencies in the NPA — most notably the systematic exclusion of victims from the resolution of this case, DOJ should reopen the investigation, and assign it to another U.S. attorney’s office or an arm of the DOJ.

The only way to preserve the integrity of this case is for a clean set of eyes to review the facts and ensure that justice is done.

UPDATE: For some additional commentary on this case and the latest CVRA opinion, check out Paul Cassell's posting at The Volokh Conspiracy, "Prosecutors Violated the Rights of Jeffrey Epstein's Victims" and Kent Scheidegger's posting at Crime and Consequences, "The Crime Victims Rights Act and the Epstein Case."

February 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, February 23, 2019

Latest Manafort sentencing memorandum from Special Counsel pulls few punches

As reported in this Politico article, a "federal judge should consider giving former Trump campaign chairman Paul Manafort a sentence that would send him to prison for at least 17 and a half years, special counsel Robert Mueller said in a court filing made public Saturday."  Here is more from the article about the filing and the legal context now:

Manafort faces a pair of sentencing hearings in the coming weeks in Virginia and in Washington where judges will determine what punishment he should face in two separate criminal cases brought by Mueller’s office involving tax fraud, bank fraud, unregistered lobbying for a foreign government and witness tampering.

The latest submission from Mueller accuses Manafort of a bold, brazen and wide-ranging series of crimes carried out over decades and continuing while Manafort was managing the Trump campaign in the summer of 2016, although prosecutors seemed to avoid mentioning the president directly in their new filing....

The new court submission in Washington released on Saturday makes no explicit recommendation about how much prison time Manafort should serve, but urges U.S. District Court Judge Amy Berman Jackson to consider making the longtime political consultant and lobbyist serve a total sentence in the roughly 17-to-22-year range by making her sentence consecutive to one a Virginia judge is expected to impose ahead of her early next month.

Jackson has the power in her case to sentence Manafort to up to ten years: the maximum allowed by law for the conspiracy and obstruction of justice crimes he pleaded guilty to before her last year as part of plea deal.

Last week, Mueller’s prosecutors told U.S. District Court Judge T.S. Ellis in Alexandria that sentencing guidelines applicable to Manafort’s case there call for him to serve between 19 and a half and 24 and a half years in prison. The prosecution team also made no explicit recommendation for a sentence in that case, beyond urging that the punishment be “serious” and adequate to deter others from similar conduct.

In theory, Ellis could sentence Manafort to as long as 80 years in prison on the charges of tax fraud, bank fraud and failing to report foreign bank accounts that he was convicted of at a high-profile jury trial last August.

The full 25-page filing (with a few redactions) is available at this link. Here is part of its introduction:

Based on his relevant sentencing conduct, Manafort presents many aggravating sentencing factors and no warranted mitigating factors. Manafort committed an array of felonies for over a decade, up through the fall of 2018.  Manafort chose repeatedly and knowingly to violate the law— whether the laws proscribed garden-variety crimes such as tax fraud, money laundering, obstruction of justice, and bank fraud, or more esoteric laws that he nevertheless was intimately familiar with, such as the Foreign Agents Registration Act (FARA).  His criminal actions were bold, some of which were committed while under a spotlight due to his work as the campaign chairman and, later, while he was on bail from this Court. And the crimes he engaged in while on bail were not minor; they went to the heart of the criminal justice system, namely, tampering with witnesses so he would not be held accountable for his crimes.  Even after he purportedly agreed to cooperate with the government in September 2018, Manafort, as this court found, lied to the Federal Bureau of Investigation (FBI), this office, and the grand jury.  His deceit, which is a fundamental component of the crimes of conviction and relevant conduct, extended to tax preparers, bookkeepers, banks, the Treasury Department, the Department of Justice National Security Division, the FBI, the Special Counsel’s Office, the grand jury, his own legal counsel, Members of Congress, and members of the executive branch of the United States government.  In sum, upon release from jail, Manafort presents a grave risk of recidivism. Specific deterrence is thus at its height, as is general deterrence of those who would engage in comparable concerted criminal conduct.

Some prior related posts:

February 23, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, February 22, 2019

Why I am certainly hoping, but not really expecting, Timbs to end up being a big deal

As reported here, on Wednesday the US Supreme Court has handed down its opinion in Timbs v. Indiana.  I was not at all surprised that the Justices decided unanimously that the Excessive Fines Clause of Eighth Amendment applies to the states, but I have since been surprised that some press coverage suggests that this ruling in a very big deal.  For example, consider this piece from Slate by Mark Joseph Stern, headlined "The Supreme Court Just Struck a Huge, Unanimous Blow Against Policing for Profit."  The piece's first paragraph seems to reflect way too much excitement as a result of a small and expected decision:

The Supreme Court struck an extraordinary blow for criminal justice reform on Wednesday, placing real limitations on policing for profit across the country.  Its unanimous decision for the first time prohibits all 50 states from imposing excessive fines, including the seizure of property, on people accused or convicted of a crime.  Rarely does the court hand down a ruling of such constitutional magnitude — and seldom do all nine justices agree to restrict the power that police and prosecutors exert over individuals.  The landmark decision represents a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far.

This paragraph strikes me as off in both spirit and particulars.  For starters, there is nothing really "extraordinary" about the Supreme Court deciding that the states are subject to the Excessive Fines Clause of Eighth Amendment given that just about every other significant provision of the Bill of Rights applies to the states.  Moreover, even before Timbs, all 50 states were in various ways already prohibited from imposing excessive fines given that, as the Timbs opinion notes, "all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality." 

Had the Justices gone on to clearly and directly rule that seizure of Tyson Timbs' Land Rover SUV constituted an excessive fine for his low-level drug dealing (as lower courts in Indiana had found), then I would agree that Timbs is a rare "ruling of such constitutional magnitude."  But the Justices in Timbs spoke only to the threshold incorporation issue, and so I do not see the ruling to "represent a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far."  That said, the widespread praise the opinion has received from across the political spectrum does make me hopeful that lower courts over time will be emboldened by Timbs to find more economic sanctions excessive.  But this other reporting on the opinion, headlined "Court Decision Doesn’t Guarantee Radical Changes to Fines and Property Seizures," better captures my sense that Timbs is as much as an opportunity missed as a "landmark decision."

In this context, it bears here noting a comment from LawProf Michael Mannheimer on Facebook: "Remember that they held the Cruel and Unusual Punishments Clause to be incorporated nearly sixty years ago.  And they've held how many non-capital sentences to be cruel and unusual?"  The answer is, of course, only a couple of hundreds of millions of non-capital sentences have been found unconstitutional in the era of mass incarceration. Recall that in Harmelin v. Michigan in 1991, the Supreme Court upheld a mandatory life without parole sentence for mere possession of a large quantity or drugs.  During oral argument in Timbs, some Justices seemed to struggle with the notion its jurisprudence might say forfeiture of an SUV violates the Eighth Amendment for selling drugs, but forfeiture of a lifetime of liberty for possessing drugs does not.

I sincerely hope and want to believe it is possible future Excessive Fines Clause jurisprudence is not as toothless as the Cruel and Unusual Punishments Clause has been for prison terms. Indeed, I hope that Timbs prompts the Justices to be thinking more about the importance of the Eighth Amendment's role in checking government excess in punishment, and that this thinking prompts them to grant cert in US v. Rivera–Ruperto, the extraordinarily compelling Cruel and Unusual Punishments case now before the Court which presents the Justices with an extraordinary opportunity to consider overruling Harmelin.

A few prior related posts:

February 22, 2019 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Brennan Center produces policy brief on "Ending Mass Incarceration: A Presidential Agenda"

2019_02_21_10AMJusticeAgendaforCandidates-1The Brennan Center for Justice yesterday released this notable new 16-page policy brief authored by Ames Grawert, Bryan Furst, and Cameron Kimble under the title "Ending Mass Incarceration: A Presidential Agenda."  Here is its introduction:

For many voters, the past two years have brought a new awareness of profound, continuing injustices in American society.  Among them is the civil rights crisis of mass incarceration.  Even with recent reforms, more than two million Americans remain behind the bars of jails or prisons.  Black men and women are imprisoned at roughly six times the rate of their white counterparts. The overuse of incarceration perpetuates economic and racial inequality, two issues at the top of the public concern.

Going into the 2020 election, contenders for the Democratic nomination — and the Republican incumbent — must have a plan to meet these challenges, or risk being out of step with the American people.

This report delineates how that can be done, outlining policies that would slash America’s incarceration rate, put people back to work, and reduce racial disparities in the process, while keeping the country safe.  These solutions can be a transformative piece of a presidential campaign and help define a new president’s legacy.

Some consensus for these changes already exists.  Late last year, Congress ended years of deadlock over federal sentencing reform by passing the FIRST STEP Act, which will reduce some of the most extreme and unjust sentences in the federal criminal code.  These changes will put families back together, make prison more humane, and help restore trust in law enforcement.

But the bill also raises the bar for any candidates seeking the Oval Office.  President Trump is already treating the act as a signature accomplishment, touting it among his top achievements in his State of the Union address.  Candidates who are serious about combating racial and economic injustice — and want voters to know it — will have to think bigger.

Rather than focusing on individual reforms, candidates for the presidency should commit to tackling some of the most pervasive and damaging parts of our criminal justice system, including overly punitive sentences, bail practices that favor the rich, and drug policies that unfairly target people of color.  These aren’t intractable problems, but they do call for sweeping changes, far more than what has been introduced to date. And enacting these in Washington can also spur more states to take action.

Incremental reforms will not make the history books.  The time for bold action is now, and this report outlines precisely the type of transformative solutions that candidates can champion to define their campaign or cement their legacy.

The report includes a number of large and small action items, all of which are interesting and important and all of which I hope get robustly discussed on the campaign trail.  The report has all prompted me to start a new blog category: "Campaign 2020 and sentencing issues."

February 22, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, February 20, 2019

Lots worth reading from lots of sources for criminal justice fans

Especially in the midst of a busy week, I sometimes come to realize that I will not get a chance to blog separately about a bunch of new pieces and commentary that have been brought to my attention.  I sometime deal with realization through a round-up post.  This is one of those posts:

February 20, 2019 in Recap posts, Who Sentences | Permalink | Comments (0)

Supreme Court rules unanimously in Timbs that Excessive Fines Clause of Eighth Amendment applies to the states (and says little else)

The Supreme Court this morning made quick work of the contention by the state of Indiana in Timbs v. Indiana, No. 17-1091 (S. Ct. Feb 20, 2019) (available here), that it is not bound by the Excessive Fines Clause of the Eighth Amendment.  In a short unanimous ruling authored by Justice Ginsburg explains why "the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming."  Here is a key passage from the start of he Timbs opinion:

The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?  Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminallaw-enforcement authority.  This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted).  The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.

Notably, the Court in Timbs does not address the subsequent issue of whether seizure of Tyson Timbs' Land Rover SUV Timbs constituted an excessive fine (as lower courts in Indiana had found). The Supreme Court was just content to resolve this incorporation issue.

Notably, Justice Gorsuch issued a concurring opinion and Justice Clarence Thomas issued an opinion concurring in the judgment in Timbs, and they are both writing separately to engage the issue of just how the Excessive Fines Clause should be incorporated against the states.  Justice Thomas makes, through an extended opinion, this fundamental incorporation point that he has raised before: "Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with 'process,' I would hold that the right to be free from excessive fines is one of the 'privileges or immunities of citizens of the United States' protected by the Fourteenth Amendment."  Justice Gorsuch engages in a short opinion stating "As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. " 

February 20, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

New Ohio Gov puts halt to all executions until Ohio develops new execution method

As reported in this local article, headlined "Gov. Mike DeWine freezes all Ohio executions while new method developed," the Buckeye state is yet again in a capital holding pattern because it governor is troubled by the state's current execution method. Here are the details:

Gov. Mike DeWine said Tuesday that there will be no more executions in Ohio until a new method of carrying them out can be developed and deemed constitutional by the courts.

“As long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio,” DeWine told reporters at an Associated Press forum in Columbus. “That would not be right, at least in my opinion.”

Pressed on whether he personally supports the death penalty, DeWine paused. Seeming to choose his words carefully, he then said he was a sponsor of Ohio’s current capital punishment law, which took effect in 1981. “It is the law of the state of Ohio. And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty. But I’m not going to go further down that path any more today,” he said.

DeWine, a Republican, ordered a review of Ohio’s death penalty protocols last month after a federal magistrate judge wrote that Ohio’s method of carrying out executions would subject a condemned Ohio prisoner to “severe pain and needless suffering.” Judge Michael Merz wrote Ohio could proceed with the execution, since the inmate, Warren Henness, did not produce an alternative that is ”available,” “feasible,” and can be “readily implemented,” required under a 2015 United States Supreme Court ruling that upheld lethal injection.

DeWine delayed Henness’ execution from Feb. 13 to Sept. 12 while the review was underway. But on Tuesday, he declined to place a timetable on how long it might take for a new execution method to be developed, for it to be legally challenged and then found constitutional by the courts. “I’ve dealt with the court system a long time, and I think it’s whenever you think you can figure out how fast or slow something’s going to take, you’re wrong,” he said....

Ohio’s method of execution is to inject the condemned with a combination of three drugs: midazolam (as a sedative), a paralytic drug, and potassium chloride to stop their heart. Death penalty opponents have challenged similar methods in other states, saying they are unconstitutional because they cause cruel and unusual punishment.

In his January opinion, Mertz, the federal magistrate judge, agreed with arguments made by Henness’s lawyers, writing that “it is certain or very likely” that the state’s prescribed dose of midazolam “cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride” or the “severe pain and needless suffering that is certain or very likely to be caused by the pulmonary edema which is very likely to be caused directly by the midazolam.”

DeWine’s review marks the second time in five years Ohio has searched for a new method of execution. The state changed the drugs it uses for lethal injection after the January 2014 execution of Dennis B. McGuire took more than 25 minutes.

Ohio had some two dozen execution dates scheduled over the next four years, but I think they are all now functionally on hold pending development of a new execution method. And, reading between the lines, I get the sense that Governor DeWine would be just fine if the state official did not try all that hard to devise a new execution method anytime soon.

A few (of many) prior recent related posts:

February 20, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 19, 2019

SCOTUS via 6-3 vote rules Texas yet again misapplied its Eighth Amendment jurisprudence prohibiting the execution of those with intellectual disability

In the middle of this lengthy new SCOTUS order list, which has lots of cert denials and individual opinions about cert denials, is one notable Supreme Court opinion on the merits in Moore v. Texas, No. 18–443 (S. Ct. Feb. 19, 2019). The start and last substantive paragraph of the 10-page per curiam opinion for the Court provides the basics:

In 2015, the Texas Court of Criminal Appeals held that petitioner, Bobby James Moore, did not have intellectual disability and consequently was eligible for the death penalty.  Ex parte Moore, 470 S.W.3d 481, 527–528 (Ex parte Moore I).  We previously considered the lawfulness of that determination, vacated the appeals court’s decision, and remanded the case for further consideration of the issue.  Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18).  The appeals court subsequently reconsidered the matter but reached the same conclusion.  Ex parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II).  We again review its decision, and we reverse its determination....

We conclude that the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.  And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court.  We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.

Chief Justice Roberts has this one-paragraph concurrence in the case:

When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U.S. 304 (2002), lacked clarity.  Moore v. Texas, 581 U.S. ___, ___–___ (2017) (slip op., at 10–11).  It still does.  But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here.  On remand, the court repeated the same errors that this Court previously condemned — if not quite in haec verba, certainly in substance.  The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits.  That did not pass muster under this Court’s analysis last time.  It still doesn’t.  For those reasons, I join the Court’s opinion reversing the judgment below.

Justice Alito, joined by Justices Thomas and Gorsuch, pens a three-page dissent with concludes this way:

The Court’s foray into factfinding is an unsound departure from our usual practice.  The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore.  I would deny the petition for a writ of certiorari.  I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question.  I therefore respectfully dissent.

There is a whole lot here to notice, but I think especially important and notable is the fact that the newest Justice, Justice Kavanaugh, is with the majority of the Court and not the dissenters here. Because of the Chief Justice's vote, Justice Kavanaugh is not technically a swing vote in this capital case.  But his vote still reveals that, unlike Justices Alito and Thomas (and even seemingly Justice Gorsuch), Justice Kavanaugh may be more inclined to scrutinize state capital practices than certain of his conservative colleagues.

February 19, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

A detailed accounting of many steps for everyone to follow-up on the FIRST STEP Act

Mark Holden has this new commentary at The Crime Report headlined "The First Step Act: It’s Only a ‘First Step’."  I recommend the piece in full, and here are excerpts:

Signed into law during the closing days of 2018, the bipartisan First Step Act expands rehabilitative programming, modifies some mandatory minimum laws to provide more proportional sentencing, and provides a second chance to people like [Matthew] Charles who’ve worked hard to transform their lives while in prison.... The law is also acting as a catalyst for states that haven’t yet reformed their criminal justice systems.

But as important as the law is, additional steps are needed to improve our criminal justice system.  To bring about transformative change, policymakers at all levels must act.  The private sector, civic organizations and community leaders must also do their part to ensure that the formerly incarcerated can find work, housing and access the tools they need to succeed after being freed....

Congress should apply three of the law’s sentencing changes retroactively, to help people who received overly harsh sentences under outdated policies and pass other front-end reforms that prioritize prison beds for dangerous criminals while addressing low-level, nonviolent offenses through treatment and other programs that better serve this population.

In addition, Congress should codify the Supreme Court ruling that requires prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case.  Lawmakers can also address our over-incarceration epidemic by clarifying criminal intent standards and working to rein in our bloated federal criminal code and regulatory code, under which virtually anyone can be charged with a crime.

The Trump administration can act on its own to reform the executive clemency process to create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.

States can parallel many of these federal actions by removing barriers for people with criminal records. More “Clean Slate” laws, like the one enacted in Pennsylvania last year, will create second chances for people by unblocking them from jobs, housing, and education.

States could also increase the transparency of their criminal justice systems through more data collection and enhanced due process protections for citizens.  Across the country individuals are incarcerated awaiting trial without considering other factors like the potential for flight risk, or whether the individual poses a threat to public safety, while others are incarcerated due to excessive fees and fines, and technical violations....

Businesses can help transform lives and enable people to contribute to their communities by hiring qualified candidates with criminal records.  I’m proud to work for Koch Industries, which hires people with criminal records and recently signed the Getting Talent Back to Work pledge with the Society for Human Resource Management to end outdated, non-inclusive hiring practices.

Finally, groups like Hudson Link for Higher Education, Safe Streets & Second Chances and The Last Mile can provide incarcerated people with skills and identify obstacles that prevent them from succeeding after their release....

We believe, as Winston Churchill did, in “an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man.” We all share a moral imperative to help find and unlock that treasure, to unleash the potential in everyone.

If we all do our part, we can bridge the partisan divide and build on the great foundation provided by the First Step Act. It’s time to take the next steps on criminal justice reform, this year and beyond.

February 19, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, February 18, 2019

"A World of Steel-Eyed Death': An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty"

The title of this post is the title of this new article now available via SSRN authored by Michael Perlin, Talia Roitberg Harmon and Sarah Chatt. Here is its abstract:

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process — in many ways, the most scandalous — is the inadequacy of counsel so often provided to defendants facing execution.  By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients.  This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation.  Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled — either by serious mental illness or by intellectual disability.  Some of the decisions in these cases — rejecting Strickland-based appeals — have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has — prior to this article — undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities.  We do this here.  In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland).  As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way.  First, we discuss the background of the development of counsel adequacy in death penalty cases.  Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear — on the surface — to bolster it in this context.  We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning.  Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.”  Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

February 18, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?

In this post on Friday, I mentioned that I consider the statutory changes to the so-called compassionate release provisions in federal law to the "sleeper provisions" of the FIRST STEP Act.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now," reviews some basics of the changes made by the FIRST STEP Act, and on page 3 one finds this account of what I think is a very big deal:  "The most significant change to compassionate release is that the Act provides prisoners the power to file a motion for compassionate release if they can demonstrate they have tried and failed to convince the BOP to do so for them.  Before passage of the First Step Act a denial by the BOP was not appealable."  In other words, courts rather than the BOP are now ultimately to decide who may merit a reduced "term of imprisonment" under 18 USC 3582(c)(1)(A)(i).

To focus on the statutory language, prior to the FIRST STEP Act, a federal judge under 3582(c)(1)(A)(i) needed to first receive a "motion of the Director of the Bureau of Prisons" in order to have authority to "reduce the term of imprisonment [based on] extraordinary and compelling reasons [that] warrant such a reduction."  The BOP was notoriously stingy about filing such motions (with only about .01% of inmates benefiting), and the program was, in the words of the Justice Department's Inspector General, "poorly managed and implemented inconsistently."  Now persons in federal prisons still need to request the support of BOP for such a motion, but courts can now consider a sentence reduction "upon motion of the defendant" based on a claim that "extraordinary and compelling reasons warrant such a reduction" if BOP refuses move the court or 30 days after making the request.  Importantly, the US Sentencing Commission has set forth a (reasonably expansive) policy statement concerning criteria for compassionate release via USSG 1B1.13, but it will now be fundamentally the province of the federal courts to develop jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).

I plan to do a series of posts explaining why I think a number of different criteria ought to meet the (textually vague) requirements of "extraordinary and compelling reasons."  For this first post in this series, I will focus on suggestions by the Justice Department's Inspector General when he testified on this issue back in 2016 before the US Sentencing Commission.  Specifically, in testimony to the USSC, IG Michael Horowitz suggested that BOP make inmates eligible for consideration for compassionate release starting at age 50.  According to the latest BOP data, there are currently nearly 35,000 persons in federal prison aged 51 or older.  Of course, the IG did not call for early release of all post-50 prisoners, but he did urge:  "Within that larger pool of eligible aging inmates, we believe the BOP could further identify more aging inmates whose offenses, criminal histories, conduct in prison, and release plans make them suitable candidates for compassionate release, resulting in reduced overcrowding and cost savings to the Justice Department and the BOP."  As explained above, it would seem that it is now appropriate for the courts, and not just BOP, to take an active and ongoing role in deciding who among the 35,000 are "suitable candidates for compassionate release."

Importantly, ill prisoners as well as elderly prisoners should be ready candidates for compassionate release (and these two groups surely overlap).  The latest BOP data here on medical placement shows that more than 5000 federal prisoners are in "care level" 3 or 4 facilities, and "Care Level 4 facilities are reserved for inmates who require daily nursing care or therapy."  As the IG explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps "reduce overcrowding in the federal prison system" and can "result in cost savings for the BOP" and in turn the federal taxpayer.

Even if we imagine only 10 percent of elderly and ill federal inmates are "suitable candidates for compassionate release," we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.  I fear, because these provisions are unfamiliar, that courts may not start making robust use of compassionate release right away.  But I hope they will, and I especially hope that federal prisoners and their advocates will press this important new frontier for federal sentencing improvements. 

A few prior related posts:

February 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)