Sunday, September 15, 2019

Federal officials reportedly considered using fentanyl for executions when restating machinery of death

As reported in this post from July, federal officials have scheduled as series of executions starting in December of this year and have announced the creation of a new "Federal Execution Protocol Addendum, which ... replaces the three-drug procedure previously used in federal executions with a single drug — pentobarbital."  But according to this new Reuters report, another notable drug was considered by federal officials as they worked to restart the federal machinery of death:

The U.S. Department of Justice examined using fentanyl in lethal injections as it prepared last year to resume executing condemned prisoners, a then untested use of the powerful, addictive opioid that has helped fuel a national crisis of overdose deaths.

The department revealed it had contemplated using the drug in a court filing last month, which has not been previously reported. In the end, it decided against adopting the drug for executions.  Attorney General William Barr announced in July his department instead would use pentobarbital, a barbiturate, when it resumes federal executions later this year, ending a de facto moratorium on the punishment put in place by the administration of U.S. President Barack Obama.

But the special consideration given to the possibilities of fentanyl, even as federal agents were focused on seizing illegal imports of the synthetic opioid, show how much has changed since the federal government last carried out an execution nearly 20 years ago.  Many pharmaceutical companies have since put tight controls on their distribution channels to stop their drugs being used in executions.

As old supply chains vanished, many states, and the federal government in turn, have been forced to tinker with their lethal recipes.  They have experimented with different drugs, in some cases leading to grisly “botched” executions in which the condemned prisoners have visibly suffered prolonged, excruciating deaths, viewed by some as a breach of the constitutional ban on “cruel and unusual” punishments.

In 2017, Nebraska and Nevada announced they would use fentanyl, which is 100 times more powerful than morphine, in new multi-drug execution protocols.

By 2018, the U.S. Justice Department was also examining the “use of fentanyl as part of a lethal injection protocol,” according to a three-page internal memorandum from March 2018 by the director of the department’s Bureau of Prisons.

The Justice Department revealed the memo’s existence in an August court filing after a federal judge ordered it to produce a complete “administrative record” showing how it arrived at the new pentobarbital execution protocol announced in July.

The full contents of the memo are not public. It is not known why the department decided to examine fentanyl, what supply channels were considered or why it ultimately rejected fentanyl as a protocol.  The government’s court filing shows the only other named drug examined as the subject of a department memo was pentobarbital, the drug it now says it wants to use in December and January to kill five of the 61 prisoners awaiting execution on federal death row....

Doctors can prescribe fentanyl for treating severe pain.  In recent years, illegal fentanyl has become a common additive in bootleg pain pills and other street drugs, contributing to the tens of thousands of opioid overdose deaths in the country each year.  Even tiny quantities can slow or stop a person’s breathing.

Earlier this year, an Ohio lawmaker proposed using some of the illegal fentanyl seized from drug traffickers to execute condemned inmates....

In August 2018, Carey Dean Moore became the first person in the United States to be executed using a protocol that included fentanyl.  Nebraska prison officials injected him with fentanyl and three other drugs. Moore took 23 minutes to die. Witnesses said that before succumbing, Moore breathed heavily and coughed and that his face turned red, then purple.

Prior recent related posts:

September 15, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

California Gov Newsom commutes 21 sentences to make offenders eligible for parole

In his first year in office, California Gov Newsom has not been afraid to use his clemency power in various ways. This local article highlights his latest work in this arena, starting this way: "Gov. Gavin Newsom is commuting the sentences of 21 violent offenders incarcerated in California prisons, including four men who have convictions related to homicides in Sacramento County, the governor’s office announced Friday." Here is more:

Jacoby Felix, Crystal Jones, Andrew Crater and Luis Alberto Velez were convicted of separate murders in the 1990s. All four, now granted commutations by Newsom, were convicted in Sacramento County and sentenced to life in prison without the possibility of parole.

The clemency action was announced Friday in a statement from the governor’s office, which describes the crimes committed by those four men and 17 other state prisoners, and explains the reasoning for commuting their sentences.

“The Governor carefully reviewed each application and considered a number of factors, including the circumstances of the crime and the sentence imposed, the applicant’s conduct while in prison and the applicant’s self-development efforts since the offense, including whether they have made use of available rehabilitative programs and addressed treatment needs,” a statement from Newsom’s office said.

Youth offender status was another important factor considered, with 15 of the 21 total commutations involving inmates convicted before the age of 26. The four Sacramento County grantees were all between ages 18 and 26 at the time of their crimes....

Newsom’s commutations would make each offender eligible for suitability hearings with the state Board of Parole Hearings.

The commutations can be upheld or rejected by the California Supreme Court. The court blocked 10 clemency actions by former Gov. Jerry Brown in his final weeks in office, marking the first time since 1930 that a California governor’s commutation requests had been denied.

But Velez and Jones’ cases have already been reviewed and recommended by both the Board of Parole Hearings and the California Supreme Court, according to Friday’s news release. Those advance reviews are required by law for any commutation case involving an applicant with multiple felony convictions.

Velez, Felix and Crater would be eligible for parole suitability hearings in 2020. Jones would be eligible in approximately 2023 after serving 25 years of his life sentence.

Also included in Newsom’s commutations are Marcus McJimpson, who has served 31 years of two life terms for a 1988 Fresno County double murder, and 80-year-old Doris Roldan, who has been imprisoned since 1981 for the first-degree murder of her husband. Roldan of Los Angeles County – who now uses a wheelchair, as noted in the governor’s statement – was recommended for clemency by her warden.

The Gov's office has this overview statement about all the commutations and detailed discussions of each case appears in gubernatorial clemency certificates available here.

Prior related post about Gov Newsom's clemency work:

September 15, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, September 12, 2019

"The Democrats’ Shameful Legacy on Crime"

The title of this post is the title of this notable new New Republic piece by Marie Gottschalk.  It carries this subheadline: "Bill Clinton isn't the only one who deserves blame for turning America into a carceral state."  Here are excerpts:

For decades, a growing number of Democrats had been trying to reposition themselves as the party of law enforcement and to lure white voters away from the GOP.  With Senator Joe Biden of Delaware, chair of the Senate Judiciary Committee, urging Clinton to seize control of the issue by “upping the ante,” Democrats and Republicans engaged in a bidding war to see who could be the toughest and meanest sheriff in town.

The $30 billion law [known as the 1994 Crime Bill], passed 25 years ago this month, was the capstone of their efforts.  It included some modest funding for crime prevention programs, such as “midnight basketball,” but its main thrust was a vast array of punitive measures.  The crime bill funded 100,000 new police officers, established a federal three-strikes law, authorized more than $12 billion to prod states to lengthen time served and build new prisons, banned certain assault weapons, created dozens of new death penalty offenses, and ended federal educational Pell grants for inmates.  The crime bill did not significantly lower crime rates; it did, however, help transform the United States into the world’s warden, incarcerating more of its residents than any other country.

The United States has now begun a long overdue national reckoning about the bill — four years ago, Hillary Clinton faced questions about her and Bill Clinton’s complicity in mass incarceration, and Biden has also had to answer for his leading role in engineering the punitive turn taken by the Democratic Party.  But this reckoning still falls far short, partly because deep misunderstandings persist about the wider impact of the bill and other get-tough measures that built the carceral state over the last five decades.

While the Clintons and Biden are guilty as charged, they had many accomplices, some of whom were not the usual suspects.  For years, House and Senate Democrats had been pushing new legislation to curb domestic violence, but it did not come up for a floor vote until the Senate incorporated the measure into the crime bill in fall 1993.  To its credit, the Violence Against Women Act heightened public awareness of sexual assault and domestic violence and provided states and communities with important new resources for crisis centers, shelters, hotlines, and prevention programs.  But VAWA also emphasized law enforcement remedies and included measures that raised serious civil rights concerns — all with the help of many national and local organizations working against rape and domestic violence.  Many of these groups have since had second thoughts about “carceral feminism.”

During her presidential campaign, Hillary Clinton claimed that the crime bill was passed with strong support from African Americans who were clamoring for tough measures to halt rising crime rates.  In reality, African Americans were deeply divided over the legislation and other criminal justice issues.  These divisions have only widened in the 25 years since then, as a new generation of “post-racial” black politicians sought to appeal to white and African American voters by castigating young black men and women as addicts, drug dealers, and common street criminals.  (In one notable example from 2011, then-Mayor Michael Nutter of Philadelphia chastised black fathers as “sperm donors” and “doggone hoodie-wearing teens.”)  With the rise of Black Lives Matter, however, these and other activists are at last calling attention to the ways in which mass incarceration constitutes a new system of social control, one with disturbing parallels to the old Jim Crow era.

This stark reality is now a leading public issue, as it should be.  But it overshadows the deepening impact of the carceral state on other demographic groups.  The incarceration rate for white Americans — about 633 per 100,000 residents — appears relatively low compared to the rates for African Americans (3,044 per 100,000) and Hispanics (1,305 per 100,000), but it is more than ten times the national incarceration rates of certain Western European countries.  All told, half of all adults in the United States — or about 113 million people — have seen an immediate family member go to jail or prison for at least one night.

September 12, 2019 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Council on Criminal Justice produces papers on "The 1994 Crime Bill: Legacy and Lessons"

Via email, I learned the Council on Criminal Justice has a great new set of developing papers and resources taking a close look at the 1994 Crime Bill.  The materials are assembled on this page, and here are highlights:

On September 13, the Crime Bill turns 25.  After a quarter century, it’s as controversial as ever — and as important to understand.

What did the Crime Bill actually do? What does the research say about the impact it had on crime and justice? What lessons does it offer policymakers today?

To help answer these critical questions, the Council commissioned analyses from some of the nation’s most respected crime experts.  Papers examining the major provisions of the bill will be released over the coming months.

Overview and Reflections - Richard Rosenfeld 

Part One: Impacts on Prison Populations - William Sabol 

September 12, 2019 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Wednesday, September 11, 2019

After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death?

As reported in this post from February, Ohio Gov Mike DeWine put a long list of scheduled executions on hold after a lower court had ruled that "it is certain or very likely" that the state's reliance on the drug midazolam in its eceuction protocol "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."  Ironically, the Ohio death row defendant, Warren Keith Henness, appealed the district court's decision because it ultimately denied his request for a stay of execution. 

That appeal has not been resolved by  a Sixth Circuit panel in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), and the panel opinion seem almost to be urging Ohio to get it machinery of death up and running again.  Here are extended excepts providing context for, and content from, this short ruling:

In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the merits of an Eighth Amendment challenge to a state’s method of execution, the plaintiff must: (1) show that the intended method of execution is “sure or very likely to cause serious illness and needless suffering,” and (2) “identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. at 2737 (citations, brackets, internal quotations, and original emphasis omitted).

Applying this framework, the district court found that Henness met his burden on Glossip’s first prong but failed to propose a viable alternative method of execution as required by the second. We review each prong separately....

We disagree [with the district court's conclusion on the first Glossip prong].  As an initial matter, neither pulmonary edema nor the symptoms associated with it qualify as the type of serious pain prohibited by the Eighth Amendment.  Consider: midazolam may cause Henness to suffocate.  But the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.”  Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (citations and internal quotation marks omitted). Consistent with this understanding, the Supreme Court recently reasoned that the fact that an inmate sentenced to death by hanging might slowly suffocate to death is not constitutionally problematic.  Id.  Because suffocation does not qualify as “severe pain and needless suffering,” it follows that Ohio’s use of midazolam — which could cause pulmonary edema, i.e., suffocation — is not constitutionally inappropriate.  The district court therefore clearly erred in concluding to the contrary.

Further, the district court erred in finding that Henness met his burden of proving that midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing — at a constitutionally problematic level — the pain caused by the combination of the paralytic agent and potassium chloride.  Indeed, though we have concluded that the combination of those two substances “would cause severe pain to a person who is fully conscious,” we have also recognized that midazolam is capable of altering an inmate’s ability to subjectively experience pain.  See Fears, 860 F.3d at 886, 888 (noting that “experts . . . agree[] that midazolam is sometimes used alone for intubation”). That said, the relevant inquiry is whether an inmate injected with 500 milligrams of midazolam would subjectively experience unconstitutionally severe pain — an inquiry that Henness has failed to prove should be answered in his favor.  To be sure, the bulk of Henness’s evidence focuses on the fact that midazolam is incapable of rendering an inmate insensate to pain.  But “the Eighth Amendment does not guarantee a prisoner a painless death,” so it is immaterial whether the inmate will experience some pain — as noted, the question is whether the level of pain the inmate subjectively experiences is constitutionally excessive.  See Bucklew, 139 S. Ct. at 1124.  And the fact that midazolam may not prevent an inmate from experiencing pain is irrelevant to whether the pain the inmate might experience is unconstitutional. Without evidence showing that a person deeply sedated by a 500 milligram dose of midazolam is still “sure or very likely” to experience an unconstitutionally high level of pain, Henness has not met his burden on this prong, and the district court clearly erred in concluding otherwise....

But even if we were to agree with Henness that Ohio’s method of execution is very likely to cause either of the types of severe pain identified by Henness and the district court, we would still find that Henness has failed to carry his burden under Glossip’s second prong.  This is because Henness’s proposed alternative method — death by secobarbital — is not a viable alternative.  As an initial matter, the record demonstrates that death by secobarbital is not “feasible” because secobarbital can, in some instances, take days to cause death and Henness has failed to propose any procedures detailing how an execution team might deal with such a prolonged execution.  Setting that deficiency aside, Henness’s proposal still fails.  As the Supreme Court recently explained, a state may decline to utilize an alternative method of execution — even if it is otherwise feasible and capable of being readily implemented — so long as the state has a legitimate reason for doing so, and “choosing not to be the first [state] to experiment with a new method of execution is a legitimate reason to reject it.” Bucklew, 139 S. Ct. at 1128-30 (internal quotation marks omitted).  It follows that, because no other state uses secobarbital to carry out an execution, Ohio may decline to implement it.

As a final point, we note that Henness’s last-minute motion to dismiss on mootness and ripeness grounds is without merit. Contrary to his contentions, Ohio has said that it intends to resume executions with this protocol if we approve. See, e.g., Andrew J. Tobias, Gov. Mike DeWine Freezes All Ohio Executions While New Method Developed, Cleveland.com (February 19, 2019), https://perma.cc/2HUL-HBUG (last accessed August 9, 2019). Thus, his challenge is not moot.  And his challenge is ripe — notwithstanding the fact that his execution has been delayed.

In other words, it seems that the Sixth Circuit panel here clearly credits the death row defendant's contention that Ohio's use of midazolam in its lethal injection protocol "may cause Henness to suffocate" and seems to credit the claim that he "will experience some pain."  But, according to the panel, it is fully constitution circa 2019 for the state to opt to "slowly suffocate to death" a condemned defendant as long as that defendant is not "sure or very likely to experience an unconstitutionally high level of pain."  

I am certain that the defendant here will now appeal this matter to the en banc Sixth Circuit and also the Supreme Court, but I will be surprised if this appeal gets heard in full again.  (I will predict here that at least a few Sixth Circuit judges will dissent if and when the full circuit does not take up the case.)  Consequently, I think the fate of Warren Keith Henness and a long list of condemned with execution dates in Ohio now turns on what whether and when Governor DeWine is prepared to order the state's machinery of death to become operational again.

A few (of many) prior recent related posts:

September 11, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, September 10, 2019

Previewing another dynamic SCOTUS criminal justice docket

Though we are still nearly a month away from the first Monday in October, it is not too early to start gearing up for what may be another dynamic and interesting Supreme Court Term for criminal justice fans.  Wonderfully, Rory Little has already put together this lengthy preview post at SCOTUSblog under the heading "Overview of the court’s criminal docket for OT 19 — sizeable and significant."  I highly recommend Rory's post in full, and I can excerpt here his intro and conclusion along with a few sentencing-related highlights (with links from the original):

The Supreme Court has already granted review in 50 cases for the term that opens on Monday, October 7.  More will be granted when the court returns for its “long conference” (following the summer recess) on October 1.  By my broad definition (which includes immigration and civil-related-to-criminal cases), 20 of the 50 cases already granted (40%) involve criminal-law or related issues. After consolidations, this represents 16 hours of argument — and 10 of those hours will occur in the first two months.  From this end of the telescope, the cases look important, and a few will certainly have broad impact.

Monday, October 7, will open with two very significant criminal-case arguments, one before and one after lunch (with a patent case sandwiched in the middle).

First, the justices will consider whether a state may (as Kansas has) constitutionally eliminate any defense of insanity to criminal charges.  This presents both due process and Eighth Amendment questions, and involves intricate mental gymnastics regarding the difference(s) between insanity and a permissible defense of lacking criminal mens rea....  After lunch, the court will address the likely far easier question whether the “unanimous verdict” requirement for criminal jury trials under the Sixth Amendment necessarily applies to all the states under the 14th Amendment’s incorporation doctrine....

On October 16, in Mathena v. Malvo, the court will consider the life-without-parole (LWOP) sentence imposed on the juvenile “D.C. sniper,” Lee Malvo, who with an adult partner (since executed) shot and killed 10 people in the Washington, D.C., area in 2002.  The constitutionality of LWOP sentences for juveniles under the Eighth Amendment has bedeviled the court twice previously: Such sentences have been declared unconstitutional when mandatory, but not when discretionary.  This case will examine what exactly that means.  The year-old retirement of Justice Anthony Kennedy, who authored the most recent decision on the issue, makes the outcome difficult to predict....

[A]t least one death-penalty case is almost always on the court’s annual docket.  OT 19 is no exception. In McKinney v. Arizona the justices will address questions revolving around the use and evaluation of mitigating evidence in capital cases....

In Shular v. United States, the justices will once again confront the much-critiqued “categorical approach” to evaluating which state offenses count as predicates for enhanced federal sentencing.

Somewhat refreshingly, the court granted review on a typewritten pro se prisoner petition for certiorari in Banister v. Davis, a habeas case.  Once the court requested a response from Texas, Banister enlisted a former assistant solicitor general and clerk to Justice Sonia Sotomayor to represent him, and the case, although dry, will be significant to the habeas bar....

The Supreme Court’s docket is a bit of an optical illusion: it always looks very different at the start from the way it is perceived by the following July.  Big cases argued in October are decided by early spring and by then are overshadowed by new grants of review, which we now perceive, “if foreseen at all, … dimly.” So stay tuned.  The sense of imminence and uncertainty is one reason the court and its machinations provide such an irresistible attraction!

September 10, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"A Fair Fight: Achieving Indigent Defense Resource Parity"

DefenderParityCoverThe title of this post is the title of this notable new report authored by Bryan Furst, who serves as counsel and the George A. Katz Fellow with the Brennan Center's Justice Program. Here are excerpts from the report's start:

Many of the issues that affect our criminal justice system today — overly long sentences, racial bias, wrongful convictions — are exacerbated by overwhelmed indigent defense systems.  In this moment of bipartisan support for reform, creating resource parity between prosecutors and indigent defenders could help achieve transformative change and lend needed credibility to our criminal justice system....

A functioning adversarial legal system requires two adequately resourced opposing sides.  But American prosecutors, while sometimes under-resourced themselves, are the most powerful actors in the U.S. legal system.  In addition to better funding, there are numerous structural advantages a prosecutor holds that worsen the resource disparity.  For example, harsh mandatory minimums and widespread pretrial incarceration create conditions in which people have essentially no choice but to accept whatever plea deal the prosecutor offers.

Historically, improving the resource disparity for defenders has been politically difficult because of the cost and the fear of looking “soft on crime.”  This might not be as true today, when 71 percent of voters think it is important to reduce the prison population and 66 percent support the use of government tax dollars to provide indigent defense.

In addition, the fiscal costs of indigent defense reform are not nearly as high when one accounts for the savings it can bring.  Issues exacerbated by defender resource disparity — pretrial incarceration, overly long sentences, wrongful convictions — are extremely expensive.  The Prison Policy Initiative estimates that the United States spends $80.7 billion on corrections each year, while pretrial detention alone costs $13.6 billion.  From 1991 to 2016, Texas paid out over $93 million to wrongfully convicted people.

Providing better indigent defense does not always mean spending more money.  State indigent defense systems are often structured in extremely inefficient ways that cost states more than necessary and lead to worse outcomes for people accused of crimes.  Restructuring for those jurisdictions may require an up-front investment but can lead to savings in the long term.

At the heart of defender resource disparity is the chronic underfunding of indigent defense — a phenomenon that is widespread and well-documented.  But fixing the problem will require more than simply increasing funding, and the question demands thinking broadly about the many issues that drive it.  This report identifies five key challenges that contribute to defender resource disparity:

  • Improperly structured indigent defense systems
  • Unsustainable workloads
  • Defender-prosecutor salary disparity
  • Insufficient support staff
  • Disparate federal funding as compared to law enforcement

Many of the solutions presented in this analysis will improve resource parity, requiring increased up-front spending.  Some will produce savings in the long term through cost sharing between indigent defense offices or reduced levels of incarceration, while others, such as mandating open discovery, will cost almost nothing to implement.

This analysis identifies various characteristics of the justice systems that contribute to defender resource disparity and presents solutions to move toward parity.  It seeks to build upon and elevate the work of many others in the multi-decade effort to realize the right to counsel in this country — one of many necessary reforms required to dismantle the systems of mass incarceration.

September 10, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, September 09, 2019

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

September 9, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal

Late Friday night, sentencing memoranda were filed in the run up to highest-profile scheduled sentencings of a number of the parents involved in the college bribery scandal.  This ABC News report overviews the basics:

Federal prosecutors are recommending some period of incarceration for the parents in the college admissions scandal.... The government's sentencing memorandum refers to the college admissions scandal as "a kind of Rorschach test for middle class angst about college admissions." The government says some period of incarceration is the only meaningful sanction for these crimes.

Court documents showed prosecutors recommended jail time ranging from one month to 15 months for the defendants named in the memo.  Of the local parents who pleaded guilty to conspiracy to commit mail fraud and honest services mail fraud, Napa Vinyard Owner Agustin Huneeus is facing the longest sentencing recommendation at 15 months. Huneeus paid Rick Singer $300,000 participate in both the college entrance exam cheating scheme and the college recruitment scheme for his daughter.

Next is Marjorie Klapper of Menlo Park with a recommended sentence of four months. Klapper paid Singer $15,000 to participate in the college entrance exam cheating scheme for her son. Peter Sartorio of Menlo Park is facing a recommendation of just one month.  Sartorio agreed to pay Singer $15,000 to participate in the college entrance exam cheating scheme for his daughter.  Actress Felicity Huffman is also facing a one-month recommended sentence. 

The government says they considered the amount of the bribe, whether someone was a repeat player, an active or passive participant in the scheme and whether or not they involved their children.

I had been hoping that the US Attorney's Office in Massachusetts, which has this useful webpage with indictments, plea agreements and other documents publicly available, would also post the government's full sentencing memorandum. So far, all that is posted is a listing of the "Government Sentencing Recommendation" in each case. 

Of course, the defendant receiving the most attention in the press is actress Felicity Huffman, and here is a partial round-up of stories focused on the sentencing recommendations in her case and related matters:

Prior related posts:

September 9, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Senator Kamala Harris releases her plan "to fundamentally transform our criminal justice system"

Via this lengthy new section of her campaign website, Senator Kamala Harris has now joined the ranks of the most prominent candidates for the 2020 Democratic Presidential nomination, in particular Joe BidenCory BookerPete Buttigeig, Bernie Sanders and Elizabeth Warren, by releasing a detailed agenda for criminal justice reform.  As is always the case, the full plan set forth by Senator Harris, which is titled "Kamala’s Plan To Transform The Criminal Justice System And Re-Envision Public Safety In America," merits a full read.  In this space I can only flag the introduction and a few notable sentencing elements (with formatting and links not preserved):

Reforming our criminal justice system is as complex and pressing an endeavor as any other in our lifetime. It is the civil rights issue of our time, and there is perhaps no one more uniquely suited to taking on this issue than Kamala Harris....

At its best, the system serves to hold serious wrongdoers accountable and achieve justice for crime survivors, while helping to build safer and healthier communities.  At its worst, decades of failed policies have created an unjust, unequal, and vastly expansive system that disproportionately harms communities of color and criminalizes individuals just because they are poor. It is long past time to re-envision public safety by strengthening and supporting our communities and drastically limiting the number of people we expose to our criminal justice system.  As president, Kamala will fundamentally transform how we approach public safety....

As president, there are four main levers that Kamala can exercise to change criminal justice policy.  She can: (1) work with Congress and use her executive authority to change law and policy on the federal level; (2) investigate state and local actors through the Justice Department’s Civil Rights Division; (3) empower and incentivize behavior on the state and local level through federal funding; and (4) use her voice as president to advocate for change. And as president, Kamala will exercise every one of these levers to increase public safety, reduce our outsized criminal justice system, and make it fairer and more equitable for all....

End Mass Incarceration and Invest Resources into Evidence and Community-Based Programs that Reduce Crime and Help Build Safe and Healthy Communities

Ending Mass Incarceration. ... Make significant federal investments in policies that would end mass incarceration and especially into evidence-based, non-carceral social supports and programs at the state and local level to improve public safety and reduce violence.  This includes investing in jobs and job training, housing, transportation, food security, education, medical and mental health care, including trauma recovery.

End the “War on Drugs” – One-fifth of the incarcerated population – or 456,000 people – is serving time for a drug charge while another 1.15 million are on probation and parole for drug-related offenses. This is especially the case on the federal level, where nearly half of the prison population are there for drug crimes. So it is past time to end the failed war on drugs, and it begins with legalizing marijuana. Marijuana arrests account for over 50% of all drug arrests. Of the 8.2 million marijuana arrests between 2001 and 2010, 88% were for simple marijuana possession. Worse, despite roughly equal usage rates, Black people are about four times more likely than White people to be arrested for marijuana. Black Americans also make up nearly 30% of all drug-related arrests, despite accounting for only 12.5% of substance users.

Legalizing marijuana. Support states in legalizing marijuana; legalize marijuana on the federal level, expunge convictions, and reinvest in the community....

Sentencing Reforms. Significant reforms must be made with respect to the criminal justice system’s sentencing schemes, including:

  • End mandatory minimums on federal level and incentivize states to do the same.  As a Senator, Kamala is a cosponsor of the Justice Safety Valve Act, which would eliminate all mandatory minimums by letting judges issue sentences below the mandatory minimum.
  • Reform clemency process to form clemency/sentencing review units and significantly increase use of clemency. The clemency process needs to be removed from the Department of Justice where there are inherent conflicts of interest. Specifically, DOJ should not determine whether individuals convicted by their own colleagues should be shortened or commuted.
  • For those who have been sentenced to long prison terms (i.e., 20 years or more), the sentencing review unit would provide for an assessment as to whether it is appropriate and serves the interests of justice for the incarcerated individual to be released or have their sentence shortened after having served 10 years.
  • End federal crack and powder cocaine disparity (reduce from 18:1 to 1:1).

National Criminal Justice Commission. The last time this nation seriously examined the criminal justice system was in 1967 when President Lyndon Johnson created the Katzenbach Commission.  That commission was fueled largely by people’s concern about crime. It’s time for a new national criminal justice commission, fueled by bipartisan support for major criminal justice reforms.  Kamala would form a commission with diverse stakeholders, whose goals would include studying the federal and state criminal justice systems, and providing recommendations within one year.  Her administration would then take action based on those recommendations.  In its 360 degree assessment of the system, pressing issues that need to be addressed include (but are not limited to):

  • Studying individuals incarcerated for violent offenses to provide recommendations via evidence-based findings. Politicians often talk about ending mass incarceration. However, one cannot truly reform the system without studying the effects of how best to hold individuals convicted of violent offenses accountable. While a significant part of the federal system involves those convicted of nonviolent drug offenses, at the state level, more than half of those convicted are there for violent offenses. Moreover, studies show that merely imposing excessively long sentences does not improve results of preventing individuals from re-offending. So what are the best ways to hold violent offenders accountable and prevent re-offending? The commission would study this issue and provide recommendations based on evidence-based findings.
  • Redefining the metrics and data we use to measure success in our criminal justice system. People in the system use terminology such as “recidivism” even though there is no good definition of what that means. And people use data such as rearrests, when that is not an accurate measure of “recidivism” and perpetuates racial disparities, as communities of color are often more heavily policed. Our system needs to have a shared set of metrics and data collection that accurately measures what success means and informs our policymaking.

Reform community supervision.

  • Invest money in states to shorten the length of probation and other forms of community supervision where appropriate and where it serves the interests of justice;
  • Invest money in states to end jail time for technical violations of community-based supervision (reforming parole).

End the use of private prisons. Less than 10 percent of our prison population is held in private facilities, but it is nevertheless still necessary to end the profit motive that drives these private prisons, as it is inhumane to profit off of imprisonment and allow a system that continues to create incentives that are contrary to the goal of helping people rehabilitate themselves and return to the community. Kamala also believes we must end private detention centers for undocumented immigrants....

Invest money in states/localities to end juvenile incarceration in favor of restorative justice programs and wrap-around services, except for the most serious crimes.

End life sentences of children and offer opportunities for sentence reduction to young people convicted of crimes.

  • For example, fight to end de facto life without parole sentences by allowing youth sentenced to more than 20 years in prison for crimes committed before their 18th birthday to petition the original sentencing court for review of their sentence after they have served 10 years.
  • End the transfer of children to adult prisons;
  • End solitary confinement for children;

Make significant federal investment for innovative Back-on-Track programs that provide in-custody and out-of-custody education and comprehensive services to individuals convicted of crimes to reduce recidivism by equipping them with the tools they need to reenter society successfully.

Education, job training, and treatment. Mandate that federal prisons provide educational and vocational training, and mental health and addiction treatment in custody, including diagnosis and treatment of trauma. 

Reentry educational course. Mandate federal prisons to provide a reentry educational course that provides, among other things, information on acquiring identification and their options with respect to housing, education, treatment, and other assistance programs. Invest federal money into this program and incentivize states to provide the same reentry educational course.

Create an advisory board of directly impacted individuals to make recommendations for successful re-entry.

Expungement & Sealing

  • Automatic expungement and sealing of offenses that are not serious or violent after 5 years
  • Ban the box, i.e., remove questions about an individual’s conviction histories until after conditional offers have been made. Individuals reentering society should have a meaningful opportunity to obtain a job and reintegrate into the community.
  • Restore voting rights for all who have served their sentence.
  • End federal bans on formerly-incarcerated individuals (as well as those arrested and not incarcerated) access to public housing, student loans, SNAP, and professional work licenses....

Prosecutorial Accountability Provide explicit authority to the U.S Department of Justice to conduct pattern and practice investigations of prosecutorial offices that commit systematic misconduct. Invest federal funds in data collection and data analysis for greater transparency and accountability. Require federal prosecutors to provide data on their charging, plea bargaining, and sentencing decisions. Provide funding to incentivize state prosecutors to participate in a national reporting program. Invest federal funds to assess prosecutorial priorities. The FBI invests millions of dollars into developing a threat assessment system that helps them set priorities. The same should be done with prosecutors so that they prioritize cases that do the most to promote public safety and justice.

Support for Public Defenders Support for public defenders to instill greater trust and equity in the justice system. Kamala believes we must support our public defender systems, which are straining to uphold the constitutional right to counsel for indigent defendants as required by the U.S. Supreme Court’s landmark Gideon v. Wainwright decision. Her EQUAL Defense Act would create a $250 million grant program to fund public defenders. To receive grants, states and localities must impose workload limits, achieve pay parity between public defenders and prosecutors within 5 years, and collect data on public defender workloads. Increases funding for public defender training. Increases student loan repayment program. Her legislation has been endorsed by Jon Rapping of Gideon’s Promise.

Humane Treatment of Prisoners

  • End the death penalty. Kamala believes the death penalty is immoral, discriminatory, ineffective, and a gross misuse of taxpayer dollars. As San Francisco District Attorney, Kamala declined to seek the death penalty in the prosecution of an individual accused of killing a police officer, despite facing relentless political pressure to do so. End solitary confinement.
  • End solitary confinement, but ensure alternative therapeutic and rehabilitative mechanisms are available to protect the safety of individuals in prisons and of prison staff.
  • End the profiting off of incarceration. Specifically, prohibit prisons from making a profit from charging exorbitant rates for prisoners for telecommunications and commissary/food and supplies in prison.
  • Keeping Families Intact. Ripping families apart creates lasting harm and undermines the goal of building safer and healthier communities. We should strive to maintain family connections. Make it easier for family to visit prisoners
  • The FIRST STEP Act instituted a requirement to allow for federal prisoners to be placed within 500 miles of their post-release residency where possible. Kamala would reduce that distance even more and invest money in states to do the same. Restore parental rights for returning citizens in a timely manner Dignity for Incarcerated Women Act, which Kamala cosponsors would: Require videoconference access free of charge; Provide parenting classes for prisoners who are primary caretaker parents; and Institute a pilot program to allow overnight visits from family members.

A few of many prior recent related posts:

September 9, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Sunday, September 08, 2019

More reason to think Justice Gorsuch might help SCOTUS pioneer criminal justice reforms

Regular readers have seen my regular postings about Justice Neil Gorsuch's notable votes in favor of the claims of federal criminal defendants (some of which I have linked below).  His work to date in criminal cases has me thinking that Justice Gorsuch could be a key vote and important voice helping SCOTUS pioneer many needed criminal justice reforms.  And this new USA Today article, headlined "Supreme Court Justice Neil Gorsuch decries lack of access to justice for many Americans," reinforces my hopefulness in this arena.  Here are excerpts:

Lawyers cost too much. Getting to trial takes too long.  Juries promised by the Constitution are rarely used.  And just try counting all the criminal laws on the books.

Those are among the provocative criticisms made by the Supreme Court's youngest associate justice, Neil Gorsuch, in a USA TODAY interview and his new book, "A Republic, If You Can Keep It."

Gorsuch, 52, is convinced that warning — reportedly issued by Benjamin Franklin after the Constitutional Convention — can be met, and the republic will be preserved. But the problems he observes in the justice system and what he describes as the nation's "crisis in civility" are obstacles he would like to see removed....

The book is, like the justice himself, a study in contrasts.  Folksy and self-deprecating, the court's lone westerner came from Colorado in 2017 with rhetorical guns blazing, amply filling the late conservative Associate Justice Antonin Scalia's seat on the bench.  It took him only two terms to lead his colleagues in dissents.

At the same time, Gorsuch has made peace with the court's liberals, often siding with Associate Justices Sonia Sotomayor and Ruth Bader Ginsburg in defense of the "little guy" being surveilled, accused, tried or convicted of a crime.

Gorsuch doesn't offer solutions for all the problems he identifies in the book.  But he expresses confidence that his judicial methodology — strictly following the words in the Constitution and federal laws rather than his preferred policies — is winning the day.  It's a method decried by many liberals as a means to produce conservative results, to which Gorsuch has a simple reply: "Rubbish!"...

Yet Gorsuch is anything but a go-along-to-get-along guy, as made clear by his expressed desire to fix what ails the nation's justice system.

Most Americans can't afford to hire a lawyer —  "I couldn’t afford my own services when I was in private practice," he writes — nor endure months or years of legal wrangling to reach trial. Too often, he says, defendants are forced to cut a deal with prosecutors or accept a judge's ruling rather than face a jury of their peers.

In a span of seven weeks last term, Gorsuch dissented twice from the court's refusal to hear Sixth Amendment challenges to criminal prosecutions.  One involved evidence he said was not subjected to proper testing and cross-examination.  The other involved a decision on restitution based on findings by a judge, not a jury.  He was joined both times by Sotomayor, perhaps the court's most liberal justice....

Still, Gorsuch has been a reliable member of the court's five-man conservative majority in major cases over the past two terms.  Those include 5-4 decisions upholding Trump's ban on travel from several majority-Muslim nations, barring public employee unions from collecting "fair share" fees from non-members, and removing federal courts from policing even the most extreme partisan election maps.

And when Chief Justice John Roberts joined the court's four liberal justices to deny the Trump administration's effort to add a question on citizenship to the 2020 census, Gorsuch joined the other conservatives in dissent.

During the interview, however, he highlighted cases in which he sided with liberals or when the justices' votes were jumbled beyond ideological explanation.  In most years, he notes, about 40% of cases are decided unanimously.  “Get nine people to agree on where to go to lunch!" he dares his inquisitor.  "It happens through collegiality and hard work and persuasion and thoughtfulness.”

A few prior related posts:

September 8, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, September 05, 2019

Public policy groups promote a "Vision for Justice 2020 and Beyond" with recommendations for criminal justice reform

As explained in this press release, the "Leadership Conference on Civil and Human Rights, Civil Rights Corps, and 115 civil rights and justice groups released a policy platform for the 2020 state and federal elections that proposes a unified vision for transforming our criminal-legal system into one that respects the humanity, dignity, and rights of all people."  Here is more from the press release:

The groups shared Vision for Justice 2020 and Beyond with presidential candidates this past summer to offer critical policy guidance for drafting robust criminal-legal reform agendas.  The 14 recommendations, listed below, are centered on three thematic issues: ensuring equity and accountability, building a restorative system of justice, and rebuilding communities.

The treatment of communities of color in the criminal-legal system is the most profound civil rights crisis facing America in the 21st century. This platform seeks to remove this moral stain on our democracy by offering specific, measurable steps to begin to transform the system.

Ensure Equity and Accountability in the Criminal-Legal System

  1. Create a new paradigm for public safety and policing.
  2. Create a new framework for pretrial justice.
  3. Ensure an effective right to counsel.
  4. Decriminalize poverty.
  5. Ensure accountability and transparency in prosecution.

Build a Restorative System of Justice

  1. End jails and prisons as we know them in America.
  2. Deprivatize justice.
  3. Dramatically reform sentencing policy.
  4. Support the children of incarcerated parents.
  5. Ease challenges to racial inequity and abolish slavery in prisons.

Rebuild Communities

  1. Rebalance spending priorities by investing in communities.
  2. Reimagine reentry, probation, and parole.
  3. Build a school-to-opportunity pipeline.
  4. End the War on Drugs.

September 5, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Gearing up for the federal sentencing of Felicity Huffman and others involved in college bribery scandal

Just over a week before the highest-profile sentencing of the bunch, USA Today has this lengthy review of federal sentencing realities and prospects for a range of defendants involved in the college bribery scandal.  The piece if headlined "Felicity Huffman to kick off sentencing of parents in college admissions case: Will judge 'send a message?'," and merits a read in full.  Here are a few excerpts:

The Justice Department suffered a setback in June when the first defendant sentenced in the nation's college admissions scandal, a former Stanford University sailing coach, avoided any prison time.  The prosecution soon has an opportunity to rebound as the historic "Varsity Blues" case enters a critical new phase.

Parents who pleaded guilty to paying Rick Singer, the mastermind of a nationwide college admissions cheating and bribery scheme, are set to be sentenced, beginning next week. Fifteen parents, three college coaches and two other co-conspirators of Singer are to be sentenced this fall.

First up is one of the two celebrities charged in the sweeping case: actress Felicity Huffman, whose sentencing is set for Sept. 13.  In a deal with prosecutors, Huffman pleaded guilty in May to conspiracy to commit mail fraud and honest services mail fraud for paying Singer $15,000 to have someone correct her daughter's SAT answers.

At the time of her plea, prosecutors recommended four months in prison for the "Desperate Housewives" actress, substantially lower than the maximum 20 years the charges could carry.  They recommended 12 months of supervised release, a $20,000 fine and other undetermined amounts of restitution and forfeiture....

If Huffman and the parents who follow her in court also avoid prison time, some criminal justice advocates said, it would signal to the public that the rich and connected can get away with cheating the system. “The criminal scheme carried out in this case shocks the conscience and underscores the way in which wealthy people can exploit their privileged status to their benefit and to the detriment of others," said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. "These federal crimes must not be treated lightly in order to send a strong message that no one is above the law and that wealthy people will be held accountable."

Clarke said the crimes committed by parents in the case "undermine public confidence" in the college admissions process and show universities must "redouble their efforts" to ensure diversity on campuses. She noted most of the wealthy parents who participated in the scheme are white.  She called the case a "unique opportunity" to hold accountable individuals "who feel that money, race and privilege can allow them to evade the justice system."

Of the 51 people charged in the college admissions scandal, 34 are parents accused of making significant payments to Singer's sham nonprofit group, the Key Worldwide Foundation.  Prosecutors said they paid to have someone secretly take ACT or SAT tests for their children, change poor results or get them falsely tagged as athletic recruits to get them into college.

Huffman was originally scheduled to be the third parent sentenced in the case, but the sentencing hearings of two other parents who pleaded guilty, Devin Sloane and Stephen Semprevivo, were pushed back to later this month.

The delays will allow U.S. District Judge Indira Talwani, who presides over the cases of Huffman and other parents, to hold a hearing Tuesday on a legal dispute that could determine the severity of some sentences.  The judge will consider whether to listen to probation officers, who identified no financial losses to any victim in the case, which could mean lighter sentences for many parents.  Prosecutors object to the potential lighter sentencing guidelines and do not want Talwani to confer with the probation department in the admissions case....

Both sides are likely to file sentencing memos to the court that will make final arguments and sentencing recommendations to Talwani before next week's hearings. "If there isn't at least a request for a strong sentence, even if it isn't granted, then I think it would seem like there's sort of different justice for different people," said Carl Tobias, a law professor at the University of Richmond who specializes in federal courts.  "I do think they will continue to press," he said of the prosecution, "and part of it is to make an example that everybody ought to be equal before law and this is not appropriate behavior."

Because no parents have been sentenced to date in the admissions scandal, Tobias said it's tricky to predict what's in store for Huffman and those sentenced after her. "We'll see what arguments are made and how her defense attorney frames it. That could be important," he said.  "And, if Huffman has more to say that may account for something, too."

Huffman, 56, apologized to the "students who work hard every day to get into college." She fought back tears when she pleaded guilty in court.  One fact that may play in her favor is the substantially lower amount of money she paid compared with other parent defendants.  Singer typically charged parents $15,000 to carry out the test cheating and higher amounts to pay off college coaches to get their children admitted as athletic recruits.  The latter cost more because it guaranteed a child's entry into college.

Sloane, CEO of Los Angeles-based waterTALENT, which builds water systems, pleaded guilty to paying $250,000 in bribes to Singer's organization to falsely designate his son as a water polo player so he could gain acceptance to the University of Southern California. Prosecutors recommended he serve 15 to 21 months in prison.  Semprevivo, an executive at Cydcor, a privately held provider of outsourced sales teams, pleaded guilty to paying $400,000 to Singer to get his son admitted into Georgetown University as a fake tennis recruit. Prosecutors recommended a prison sentence of 18 months for him....

The sentence for Vandemoer, the ex-Stanford sailing coach, was decided by U.S. District Judge Rya Zobel.  She presides over Singer's case but is not assigned to any of the cases involving parents or other coaches. Singer pleaded guilty to four felonies and is cooperating with prosecutors.  Although prosecutors didn't get the sentence they wanted for Vandemoer, the case doesn't necessarily foreshadow how the next round of sentences will go. As part of an agreement with prosecutors, Vandemoer pleaded guilty to racketeering charges.

The case had unique circumstances.  None of the students tied to the payments was admitted into Stanford as a direct result of the coach's actions, leading Zobel to question whether the university suffered any losses.  Vandemoer funneled payments directly to the school's sailing program and did not pocket any of the bribe money he took from Singer. Zobel called Vandemoer "probably the least culpable of all the defendants."

Twenty-three defendants in the college admissions case, including Huffman, pleaded guilty to felonies; 28 others pleaded not guilty, including actress Lori Loughlin.  How the first group of parents is sentenced could affect whether other parents plead guilty or dig in for trial, according to Adam Citron, a former state prosecutor in New York, who practices at Davidoff Hutcher & Citron.

That's the biggest concern for prosecutors, he said. "It could go two ways. If (the parents) are getting jail time even on pleas, a defendant may think to themselves, 'I better plea out because I don't want more jail time,' " Citron said. "By the same token, that defendant might say to themselves, 'I'm going to get jail anyways, so I might as well fight it.' "

Prior related posts:

September 5, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences | Permalink | Comments (2)

"Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform"

The title of this post is the title of this new report from The Criminal Justice Policy Program at Harvard Law School Here is how the 80-page report is described on this webpage:

Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform sets forth a new vision for the role courts must play in ensuring proportionate policies and practices for imposing and enforcing monetary sanctions.  This report is a tool for judges, lawmakers, practitioners, and advocates who are pushing for changes in state and local courts, and offers concrete reforms that judges can implement on their own, without legislative action, to ensure that financial sanctions are more proportionate and fair, and to prevent the worst harms that excessive fines and fees can create for poor people.  Adoption of CJPP’s recommended reforms would, on the whole, transform judges’ thinking about monetary sanctions and their impact on the poor.

Overall, the goal of this new framework is to move judicial culture away from the punitive nature of current systems, and towards policies and practices built on proportionality, fairness, and the desire to see individuals complete their sentences and move on with their lives.  While recognizing the need for certain foundational changes (such as eliminating all revenue-raising fees and surcharges, and decreasing the number of cases in the system through decriminalization and diversion), this report details specific actions that can and should be taken immediately by the courts to reduce the consequences of disproportionate monetary sanctions, absent legislative action. Using CJPP’s experience working with different jurisdictions and other reform efforts nationwide as a guide, this report advocates for holistic, comprehensive, and meaningful changes to how courts think about proportionate sentencing, alternatives to payment, monitoring of payment, responses to non-payment, and punitive enforcement mechanisms.  If implemented robustly, these reforms would radically change individuals’ experiences with criminal legal systems.

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

Wednesday, September 04, 2019

"Are We Still Cheap on Crime? Austerity, Punitivism, and Common Sense in Trumpistan"

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

Literature on “late mass incarceration” observed a contraction of the carceral state, with varying opinions as to its causes and various degrees of optimism about its potential.  But even optimistic commentators were taken aback by the Trump-Sessions Administration’s criminal justice rhetoric.  This paper maps out the extent to which federal, state and local actions in the age of Trump have reversed the promising trends to shrink the criminal justice apparatus, focusing on federal legislation, continued state and local reform, and the role of criminal justice in 2020 presidential campaigns.  The paper concludes that the overall salutary trends from 2008 onward have slowed down in some respects, but continued on in others, and that advocacy concerns should focus on particular areas of the criminal justice apparatus.

September 4, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, September 03, 2019

If eating more ice cream can help reform the criminal justice system... count me in!

Qpyyzava1ewumdpftzltThe cheeky title of this post is my first reaction to this new story at The Root headlined "Ben & Jerry’s Takes on Criminal Justice Reform with New Flavor, Justice Remix’d."  Here are the yummy particulars:

In a world in which the trappings of allyship have devolved into Instagram likes or tawdry photo ops, premium ice cream company Ben & Jerry’s has quietly ignored fanfare in favor of doing the actual work.  It’s not uncommon to find posts admonishing the criminal justice system or systemic racism on their website, and since May 2018 they’ve spent over a million dollars on Facebook ads denouncing mass incarceration, advocating for mental health funding and demanding criminal justice reform. And according to the revered ice cream manufacturer, they’re just getting started.

On Tuesday, they partnered with Color of Change and the Advancement Project to unveil their latest flavor, Justice Remix’d, as part of their three-year initiative “to address the destructive cycle of mass incarceration in our country,” according to a statement from Ben & Jerry’s.

Prior to this unveiling, The Root spoke with Jabari Paul, the company’s assistant U.S. activism manager, who explained B&J’s mission further.  “Justice Remix’d is our fan-facing advocacy campaign that focuses on front-end criminal justice reform,” Paul told The Root. “Front-end meaning how do you divert and deflect people from going into the incarceration system in the first place? Many of which have no legitimate reason for being there.”

Paul added, “On a national level, we’ve really focused on three issues: ending money bail, stopping unnecessary prosecutions and disrupting the school to prison pipeline.”  In doing so, Ben & Jerry’s became partners in Color of Change’s Winning Justice campaign, which seeks to transform the criminal justice system by championing reform-minded prosecutors for election. But the company has a local strategy as well, which includes the involvement of the Advancement Project to work towards shutting down jails like Workhouse in St. Louis....

Criminal justice reform is long overdue, and with the arrival of Justice Remix’d, Ben & Jerry’s seeks to be a part of the solution instead of resting on their laurels. “The reason that we believe in social impact is because social impact goes beyond this idea of corporate giving. It’s about really influencing fan behavior,” Paul said. “Our goal is to drive them to increase awareness around the issues that we care about, like criminal justice reform, drive engagement, engage them around those issues and then ultimately inspire them to take action.”

Notably, this Ben & Jerry's page discussing the flavor and the cause it supports starts and ends with details that almost make me want to believe I could and should give up blogging in order to eat more ice cream:

We are flipping our lids over our newest flavor!  Meet Justice ReMix’d, a new flavor featuring cinnamon and chocolate ice creams, gobs of cinnamon bun dough, and spicy fudge brownies.  And the best part?  Justice ReMix’d also has a sweet swirl of justice under the lid....

Ready to dig in to the hard work of making criminal justice reform a reality? Start by grabbing a spoon and a pint of Justice ReMix’d!

September 3, 2019 in Food and Drink, Who Sentences | Permalink | Comments (0)

Duke Law School launches new Center for Science and Justice

This news release, titled "New Duke Law center will delve into science of criminal justice," reports on the official launch of a notable new criminal justice center. Here are the basics:

A new center based at Duke Law School will apply legal and scientific research to reforming the criminal justice system.

The Duke Center for Science and Justice will bring together faculty and students in law, medicine, public policy, and arts and sciences to pursue research, policy and law reform, and education in three areas: accuracy of evidence in criminal cases; the role of risk in criminal outcomes; and addressing a person’s treatment needs as an alternative to arrest and incarceration.  It will also examine the needs of formerly incarcerated persons who are re-entering society.

The center will be led by Brandon Garrett, the L. Neil Williams, Jr. Professor of Law and a leading scholar of criminal procedure, scientific evidence and wrongful convictions.

A central goal of the center is to convey the results of research to stakeholders in the criminal justice system.  Examples of this work include:

-- Accuracy: Building on Garrett’s studies of the causes of wrongful convictions in cases of people exonerated by post-conviction DNA testing, Duke researchers are studying how to better explain to jurors the fallibility of evidence such as eyewitness memory and fingerprint comparisons.

-- Risk: Duke researchers are studying why judges often do not follow recommendations of risk assessments to divert offenders from prison to the community, and why more resources may be needed to promote alternatives to incarceration. Researchers are collaborating with the Durham District Attorney’s office to implement and study alternatives to pre-trial detention and to incarceration.

-- Needs: A report released by Garrett and his team documented how more than 1.2 million people in North Carolina have suspended driver’s licenses, the long-term consequences of those suspensions, and the resulting racial and class-based disparities.  The study was made possible through a collaboration with the N.C. Justice Center and the N.C. Supreme Court’s Access to Justice Commission....

Duke will launch the center Tuesday at an event featuring Yusef Salaam and Raymond Santana, two members of the Exonerated Five, formerly known as the Central Park Five. Salaam, Santana and three other boys wrongfully convicted and imprisoned for the 1989 beating of a Central Park jogger had their convictions vacated after another man whose DNA matched DNA from the scene confessed to the assault and rape. The men were the subjects of the Netflix series “When They See Us,” released earlier this year....

The center’s launch is supported by a $4.7 million grant from the Charles Koch Foundation, which supports research and educational programs in areas such as criminal justice and policing reform, free expression, foreign policy, economic opportunity and innovation.  Additional support for Garrett’s research has been provided by Arnold Ventures, and the Center for Statistics and Applications in Forensic Evidence.

Garrett’s research focuses on the non-partisan, evidence-based study and prevention of wrongful convictions and improving criminal procedure. Since joining the Duke faculty in 2018, he has established the JustScience Lab, which has produced new research and reports on such matters in North Carolina as disparities when juveniles are sentenced to life without parole, the consequences of fines and fees, the adequacy of resources for alternatives to incarceration, and best practices for eyewitness identification procedures.

Leading researchers from Duke’s School of Medicine will be closely involved in the center’s work, providing a public health perspective to criminal justice research. The Department of Psychiatry and Behavioral Sciences and Department of Population Health Sciences are already collaborating on research on such topics as the epidemiology of violence, the impact of services addressing mental health and substance abuse, and the effectiveness of criminal diversion and re-entry programs.

Through additional philanthropic support, Duke hopes to expand the focus of the center’s educational mission to supporting students who are entering criminal justice careers through scholarship aid, internship funding, a criminal-justice focused curriculum and opportunities for interdisciplinary engagement with graduate and undergraduate students. The Law School also hopes to launch a criminal justice clinic to provide training in how to litigate a criminal case at the pre-trial and trial stage.

September 3, 2019 in Who Sentences | Permalink | Comments (0)

"Prosecutors, Democracy, and Justice: Holding Prosecutors Accountable"

The title of this post is the title of this notable 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 Jeremy Travis, Carter Stewart and Allison Goldberg, and here are the first two paragraphs of its introduction:

As the nation grapples with fundamental questions about the nature of our democracy, advocates for criminal justice reform see hope in the nascent focus on one of the most powerful stakeholders in the legal system: the prosecutor.   Across the country, prosecutor campaigns have shifted from debates over conviction rates and sentence lengths to candidates vying to show their commitment to ending mass incarceration and ameliorating other harms associated with the criminal justice system.  While 85 percent of incumbent prosecutors ran unopposed between 1996 and 2006, and 95 percent of elected prosecutors were white in 2015, recent elections saw unprecedented electoral competition and diversity in prosecutor races across the country.  As reform-minded prosecutors are elected in growing numbers, communities are holding them to account on their campaign promises to bring about deep criminal justice reforms.  At the core of this new era of prosecutorial accountability is a more fundamental question: are reformers justified in betting on our democracy, specifically the election of a new generation of prosecutors, as an avenue to justice reform?

The electoral wins of reform-minded prosecutors are certainly cause for optimism, but they also necessitate public discourse about what it means for prosecutors to play a role as agents of change. Certainly the reform agenda is daunting.  Even a campaign pledge to end mass incarceration by reducing the number of people in jails and prisons does not explicitly recognize the broader ways in which the state criminalizes and supervises large swaths of the US population, disproportionately low-income individuals and people of color, while affronting common standards of human dignity.  With over six million people under correctional supervision, excessive use of the arrest powers, and stubbornly high levels of distrust of the criminal justice system in the communities most directly impacted, the need to temper the justice system’s excessive reach remains urgent.  By promising to unwind the machinery that created this state of affairs, reform-minded prosecutors are tackling an enormous challenge.

September 3, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, September 02, 2019

Talk of draft legislation to expedite death penalty as part of package response to mass shootings

As reported in this new Fox News piece, headlined "White House, DOJ working to expedite death penalty for mass shooters," it appears next week we will see the Trump Administration advance a proposal to expedite executions for mass murderers. Here are the basics:

The White House said Monday it has drafted legislation with the Justice Department that would expedite the death penalty for people found guilty of committing mass shootings, following Saturday's attack in West Texas that left seven dead, according to a pool report.

Vice President Mike Pence's chief of staff, Marc Short, told reporters aboard Air Force Two that the initiative was part of a larger White House gun control package that will be sent to Congress after lawmakers return from their August recess on Sept. 9. Attorney General Bill Barr is involved in active discussions with the vice president's office, Short said, as the plane made its way to Ireland.

The issue could be contentious among Democrats seeking to unseat President Trump in 2020. Former Texas Rep. Beto O'Rourke has sought to revive his struggling candidacy by calling for a mandatory buyback of what he called "assault weapons" -- but he also has insisted, in a recent policy shift, that capital punishment is categorically wrong.

Still, there has been little hesitation from the Trump administration on the issue. In August, Trump said he was “directing the Department of Justice to propose legislation ensuring that those who commit hate crimes and mass murders face the death penalty," adding that he wanted "capital punishment be delivered quickly, decisively, and without years of needless delay.”

Earlier this summer, Barr said the federal government will resume capital punishment and will move forward with plans to execute five inmates on death row for the first time in more than 15 years....

In a letter last month to President Trump, House Speaker Nancy Pelosi, D-Calif., specifically pushed for the House-passed Bipartisan Background Checks Act and the Enhanced Background Checks Act. Some of the House-sponsored legislation would extend the time period for the FBI to conduct background checks on firearm purchases from three days to 10 days and establish new background-check procedures for private gun transfers.

Many Republicans said they hoped to take action to curb gun violence. House Minority Leader Kevin McCarthy, R-Calif., said his party has been interested in “common sense solutions to prevent this from happening in the future while at the same time protecting due process for anyone who is a law-abiding citizen.”...

For his part, Senate Majority Leader Mitch McConnell, R-Ky., has said that so-called "red flag" warning legislation, as well as expanded background checks, would be "front and center" on the Senate floor when Congress comes back in session.

However, red flag laws might be unconstitutional, some conservatives have said, and states and local governments increasingly have sparred over the issue. More than a dozen states have enacted red flag laws. In March, Colorado's attorney general testified that county sheriffs vowing not to enforce the state's anti-gun "red flag" bill should "resign."

Red flag laws generally require friends or family to establish by a "preponderance of the evidence" -- a relatively lax legal standard essentially meaning that something is "more likely than not" -- that a person "poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing or receiving a firearm."

Given the strict constitutional regulation of the death penalty and the practical challenges posed by big capital cases, I doubt any proposed legislation would or could significantly fast-track capital prosecutions and executions. Consider, for example, the big federal capital prosecutions emerging form the Boston Marathon bombing and the Charleston Church shooting. It took nearly two years to secure death sentences for Dzhokhar Tsarnaev and Dylann Roof, and even longer for the (still-pending) direct appeals to take place.  Even if some form of legislation could somehow cut the procedural timelines for these cases, it still seems likely that the better part of a decade or more will always transpire between any mass murder and any ultimate federal execution of its perpetrator.

For these reasons, I am hopeful (but not optimistic) that Democratic leaders will not let general opposition to the death penalty get in the way of building a legislative package of common-sense gun control reforms.  Reasonable gun control efforts might possibly have some impact on the still-extraordinary level gun violence in the US, whereas any legislation looking to speed up capital cases for mass murderers likely will have, at most, a slight impact on a very small handful of cases.

September 2, 2019 in Death Penalty Reforms, Gun policy and sentencing, Who Sentences | Permalink | Comments (12)

Saturday, August 31, 2019

Another indication from Oklahoma of how jurors are keeping the death penalty mostly dormant

With more than 100 executions in the modern capital era, Oklahoma used to be one of the most active death penalty states.  But this new local article, headlined "Jury deadlock latest example of death penalty's decline," highlights how the state has functionally (though not formally) turned away from capital punishments.  Here is an excerpt:

Deputy David Wade died in service to you," District Attorney Laura Austin Thomas told jurors Thursday in asking for the death penalty for his murderer, Nathan LeForce. "Let the punishment fit the crime."

The deputy had been making sure an evicted couple was moving out of a rural residence near Mulhall on April 18, 2017, when LeForce — who was visiting there — pulled out a gun from a piece of furniture and began firing.  The first shot hit the deputy in the vest, spinning him around and knocking him to the ground.  LeForce moved closer, shooting the deputy in the arm, armpit, back and, finally, the mouth, according to evidence presented at the trial.  LeForce fled in the deputy's patrol truck.

Calling the shooting cold-blooded, wicked and vile, the district attorney asked jurors if it did not merit the death penalty than what does. To choose another punishment, she said, would not honor or value the deputy's service.

Jurors, though, struggled with the decision.  After four hours, the foreman told District Judge Phillip Corley they were split 10-2. The judge instructed them to deliberate further.  He told jurors he would decide the sentence if they couldn't agree but explained his options could not include death. About 90 minutes later, jurors reported they were at an impasse, 11-1.  The judge thanked them and discharged them from duty.

The deadlock is the latest example of the death penalty's decline.  Death sentences have become increasingly rare in Oklahoma and nationwide as opposition to the punishment grows.  In May, New Hampshire became the 21st state to abolish the death penalty. Last week, the Ohio House speaker told reporters he's become "less and less supportive" of the death penalty....

Nationwide, a death sentence was imposed only 42 times last year, according to the Death Penalty Information Center.

In Oklahoma, only one death sentence was imposed last year and only one has been imposed so far this year. Executions remain on hold in the state while officials develop a protocol to use nitrogen gas.  The last lethal injection in Oklahoma murderer was on Jan. 15, 2015.

The deadlock Thursday night angered relatives of the victim and upset the sheriff and the almost two dozen deputies in the courtroom. It frustrated prosecutors, who believe the majority of jurors favored death.

August 31, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Friday, August 30, 2019

Federal district judge finds confinement condition Connecticut's former death row inmates to be unconstitutional

This local article, headlined "U.S. Judge rules former Connecticut death row inmate’s incarceration amounts to cruel and unusual punishment," reports on notable prison rulings handed down by a federal court earlier this week.  Here are the basics:

A federal judge has condemned high security prison conditions in Connecticut, ruling that a convicted cop killer who was confined for years on the state’s death row has been subjected to “cruel and unusual” punishment.

Ruling in one of at least a half dozen federal civil rights suits by former death row inmate Richard Reynolds, U.S. District Judge Stefan Underhill ordered the state to immediately relax the conditions under which he is confined and said he will consider imposing some sort of “damages” on the correction officers Reynolds names in his suit as defendants.

Underhill concludes in a set of decisions released Wednesday, one of them 57 pages long, that the conditions of confinement imposed by the state on former death row inmates — in particular the periods of time during which they are locked alone in their cells — amounts to a Constitutional violation.  “Reynolds committed a heinous crime ― he murdered a law enforcement officer,” Underhill wrote.  “Reynolds was sentenced to death and awaited execution for twenty-one years.  When the death penalty was abolished retroactively in Connecticut, Reynolds was resentenced to life without the possibility of release. The fact that people commit inhumane crimes does not give the state the right to treat them inhumanely. Solitary confinement is an extreme form of punishment with a long history in American penal systems.”

In a related ruling, Underhill gave the Department of Correction a list of instructions that would relax Reynolds’ confinement and he ordered the state to provide him with a progress report in 30 days.  Among other things, Underhill said Reynolds should be allowed to socialize with inmates who have a lower security classification and be allowed “contact” with visitors.  Underhill also said that a “hearing in damages will follow to determine the scope and amount of liability of” the 10 or so correction officers Reynolds named in his suit....

Reynolds was convicted of murder and sentenced to death in 1995 for killing Waterbury police officer Walter Williams three years earlier.  In 2017, he was resentenced to life in prison without the possibility of release after the state Supreme Court ruled the death penalty was unconstitutional.  Reynolds has been confined for 23 years at the Northern Correctional Institution in Somers, the state’s most secure maximum security prison.  He is classified for security purposes as a “special circumstances inmate” — the highest classification — and lives alone in a 12 foot by 7 foot cell.

At the center of Underhill’s ruling is the assertion that a variety of conditions imposed in prison on former death row inmates — extended periods locked alone in their cells, prohibition against mingling with lower security inmates and their inability to touch visitors amounts in Reynolds’ case to psychological torture and it could be damaging his mental health.

Underhill wrote that Reynolds is allowed out of his cell for two 15-minute periods to eat lunch and dinner.  He is allowed to take one 15-minute shower each day, two hours of recreation each day for six days a week and two hours of weekly indoor gym recreation. Reynolds may, upon request, receive visits from clergy, attorneys, or prison medical staff. “Other than those periods, Reynolds remains isolated with no contact with anyone but the six other inmates on special circumstances status,” Underhill wrote.  “Although he is allowed social visits with family members, no physical contact is permitted during those visits, which occur through Plexiglass.”

August 30, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, August 27, 2019

"Arrest, Release, Repeat: How police and jails are misused to respond to social problems"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by By Alexi Jones and Wendy Sawyer.  Here is how the report gets started:

Police and jails are supposed to promote public safety. Increasingly, however, law enforcement is called upon to respond punitively to medical and economic problems unrelated to public safety issues.  As a result, local jails are filled with people who need medical care and social services, many of whom cycle in and out of jail without ever receiving the help they need.  Conversations about this problem are becoming more frequent, but until now, these conversations have been missing three fundamental data points: how many people go to jail each year, how many return, and which underlying problems fuel this cycle.

In this report, we fill this troubling data gap with a new analysis of a federal survey, finding that at least 4.9 million people are arrested and jailed each year, and at least one in 4 of those individuals are booked into jail more than once during the same year. Our analysis shows that repeated arrests are related to race and poverty, as well as high rates of mental illness and substance use disorders.  Ultimately, we find that people who are jailed have much higher rates of social, economic, and health problems that cannot and should not be addressed through incarceration.

August 27, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

"Prosecutors Need to Take the Lead in Reforming Prisons"

The title of this post is the headline of this lengthy new Atlantic commentary authored by Lucy Lang.  The piece has the subtitle "Attorneys on the front lines of the criminal-justice system should be pressing for a drastically different model of incarceration."  And here are excerpts:

My years of prosecuting violent street crime and working with crime survivors and their families had deeply sensitized me to the devastating impact of violent crime on individuals and communities.  In fact, not so long ago, it was crime victims who were the forgotten ones in the criminal-justice system.  But [a victim] mother’s astounding display of empathy made me question whether I had given adequate thought to the impact of incarceration on individuals and, in turn, affected communities. I had focused on crime, but had I thought enough about punishment? I was myself the mother of two young children.  If a mother could find compassion for the men who killed her son, then surely I could too....

While the criminal-justice system, nationally and locally, has undergone significant reforms in recent years, the system requires far more extensive change.  Reform-minded prosecutors in jurisdictions across the country are working to tailor responses to crime to address its underlying causes and reduce our reliance on prisons while still encouraging accountability for those who cause harm.  They are looking to public-health and harm-reduction models as they try to keep many people out of prison and to identify ways to carefully tailor the appropriate amount of prison time for others.

It is not enough, though, for prosecutors to decline prosecution of low-level offenses and to create alternatives to incarceration for appropriate cases.  These work-arounds are important, but the majority of incarcerated Americans are imprisoned for crimes of violence.  Simply diverting nonviolent offenders and reducing sentence lengths will not solve mass incarceration.  And the use of these increasingly politically popular strategies for shrinking the footprint of the criminal-justice system ought not delay addressing the unconscionable state of American prisons....

[P]rosecutors should create Civil Rights Enforcement Units, just as many have created Alternatives to Incarceration Units and Conviction Integrity Bureaus.  Such units should focus on the development and maintenance of humane prison conditions, including advocating for the prisons on which they rely to implement trauma-informed training borrowed from medical and social work institutions, designed to encourage prison staff to treat residents with dignity and to create a culture of mutual respect.

Such units would serve as liaisons with departments of corrections, state attorneys general, and other relevant agencies to break down the silos that have enabled modern American prisons to damage their residents and employees alike for far too long, and thereby perpetuated the cycles of violence in our communities.  These units could lobby state legislatures to reform conditions, assist in allocating resources to prison programs and education, and communicate with parole and probation departments.  And finally, they could do the important work of educating prosecutors about the realities of the prison system, so that every time a prosecutor recommends a jail or prison sentence, she does so with full knowledge of what that sentence is likely to entail.

Prosecutors are, of course, neither solely responsible for, nor alone capable of solving the civil-rights crisis of mass incarceration.  Judges, police officers, defense attorneys, corrections officers, community advocates, and others have all contributed to the steep increase in people incarcerated and under correctional supervision in the United States during the latter part of the 20th century.  Each of these groups must step up to identify solutions.  And there will always be some people who cannot appropriately and safely remain in the community after committing an offense.  But prison must not inflict undue suffering....

Everyone who takes the oath of a prosecutor’s office in this country should come to work feeling the moral weight of our unacceptable prison conditions.  District attorneys can profoundly transform the criminal-justice system if they recognize their own role in perpetuating the harms of prison and commit to fixing American prisons.  Prosecutors should proactively employ their considerable power to investigate and prosecute abuse, other criminal conduct, and civil-rights violations behind bars, and use their bully pulpits to speak out loudly in favor of a drastically different prison model.  Prosecutors can promote long-term public safety and accountability, while also manifesting the empathy that has been too long absent in our system. The integrity of the system depends on it.

August 27, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, August 26, 2019

Feds officially commit to seeking death penalty for Pittsburgh synagogue mass murderer

As reported in this local article, the "Justice Department said Monday that it will seek the death penalty for Robert Bowers, accused of killing 11 at Tree of Life synagogue in Squirrel Hill and wounding six others last year in the worst attack on Jews in U.S. history." Here is more:

The move was expected. Within days of the Oct. 27 massacre, the U.S. attorney's office said it had started the approval process for seeking death for Mr. Bowers in consultation with DOJ's capital crimes unit and the U.S. attorney general, Jeff Sessions at the time.

In a court filing Monday, prosecutors said Mr. Bowers qualifies for the death penalty because he allegedly targeted vulnerable people out of religious hatred, killed multiple victims and tried to kill others, chose the site to make an impact and showed no remorse, among other factors.

The decision to seek death comes despite a request by two of the Jewish congregations targeted in the shootings to spare Mr. Bowers' life.  In a recent letter to Attorney General William Barr, the groups cited religious and personal objections to capital punishment.  They also expressed concern about a trial and penalty phase that would require testimony from survivors, exposing them to further trauma.

Stephen Cohen, co-president of New Light Congregation, who had written to Attorney General Barr urging he accept a guilty plea with a guaranteed life sentence, said it was “absolutely the wrong decision” to seek the death penalty.  A trial will not bring closure to victims, he said. They will have to testify in court and sit there while “this heinous person tries to prove he didn’t do something he obviously did,” Mr. Cohen said. There’s no guarantee of a conviction, he said, and even if there is a finding of guilt, “people stay on death row for years and years.”...

Death penalty cases are rare in the federal system and executions almost never occur. Only three people have been put to death federally since the death penalty was reinstated in 1988....  Mr. Bowers is only the fourth person to face death in the history of the Western District of Pennsylvania, which comprises 25 counties.  None was executed.

August 26, 2019 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Grant Pardon RatioRJ Vogt over at Law360 has this lengthy new piece discussing both federal clemency and one of my favorite parts of the FIRST STEP Act under the headline "How Courts Could Ease The White House's Clemency Backlog."  I recommend the piece in full, and here are some extended excerpts:

More than 11,430 federal prisoners, many of them nonviolent offenders serving life sentences, have commutation petitions pending at the U.S. Department of Justice’s Office of the Pardon Attorney, or OPA. Another 2,393 applications for presidential pardons, which are generally issued after someone completes a sentence, are also pending.

Both numbers mark record highs for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

Today, access to clemency is anything but. Sam Morison, a former OPA attorney who now helps clients file petitions, says the Justice Department uses its oversight to stymie petitions before they ever reach the president’s desk. “The DOJ is to blame for the backlog,” Morison said. “They view their role as protecting the prosecutorial prerogative because, let's face it, that's what they do.”

Some legal scholars believe the First Step Act, a landmark criminal justice reform bill President Donald Trump signed into law in December, created a way for inmates to bypass DOJ oversight by asking judges for sentence reductions based on the circumstances of their cases.

But the concept hasn’t been tested in large numbers yet, and in the meantime, the odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump....

Much of today’s epic backlog can be traced to President Barack Obama’s 2014 Clemency Initiative.

The project, which was designed to identify nonviolent federal prisoners who would not threaten public safety if released, got off to a rocky start when the DOJ sent the entire federal prison population a notice of the initiative and a survey to gauge inmate interest. The DOJ’s failure to “exclude inmates who were clearly ineligible for consideration” led to an overwhelming response, according to a 2018 inspector general report.

Over the last 33 months of Obama’s presidency, OPA received more commutation petitions than it had in the previous 24 years combined. At the same time, pardon petitions doubled, from a yearly average of 276 to an average of 521....

Shon Hopwood, a professor at Georgetown University Law Center, believes the First Step Act created a new path to commuted sentences... [H]e cited the First Step Act’s expansion of compassionate release as a more accessible option....

Under the First Step Act, a defendant no longer needs the bureau's backing. If the director won’t make the request for an inmate within 30 days of being asked, the new law allows the defendant to file a motion for resentencing directly in court. In a forthcoming law review article, Hopwood writes that judges can now consider “extraordinary” reasons for compassionate release without having to wait for Bureau of Prisons approval.

“Those serving long or life without parole sentences for marijuana trafficking offenses are the first to come to mind,” he wrote. “Another group ... might be those sentenced to harsh mandatory minimum sentences, even though the facts of their crimes made them far less culpable than someone committing a run-of-the-mill offense.”...

Margaret Love, U.S. pardon attorney from 1990-1997, told Law360 that the concept is “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention.”

“This has obviated the need for the clemency process to take care of the great majority of commutation cases,” she said.

Hopwood acknowledged that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload.

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

August 26, 2019 in Clemency and Pardons, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, August 25, 2019

"Whom the State Kills"

The title of this post is the title of this notable new empirical paper authored by Scott Phillips and Justin Marceau now available via SSRN. Here is its abstract:

Through original quantitative research we show that persons convicted of killing a white victim and sentenced to death are more likely to be executed than persons convicted and sentenced to death for killing a black victim.  Previous research documents numerous forms of arbitrariness and racial disparity in the administration of the modern death penalty, but focuses exclusively on the charging and sentencing patterns of prosecutors and juries.  Previous research also reveals that implicit bias operates within the institutions tasked with seeking and obtaining sentences of death.  Our original research shows that the problem of disparate racial outcomes is actually exacerbated through the work of our most trusted check on the death penalty, appellate courts.

Building on David Baldus’s storied dataset from Georgia, we demonstrate that the racial disparities he discovered in the penultimate stage of the case — death sentences — were amplified in the ultimate stage of the case — executions.  Combining both phases reveals a stunning pattern: the execution rate is roughly 17 times greater in white victim cases than black victim cases.  Although Baldus could not have known how the cases would unfold post-sentencing, our findings indicate that the racial disparities described in McCleskey v Kemp (1987) underestimated the extent of the death penalty’s arbitrariness problem.

August 25, 2019 in Data on sentencing, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, August 24, 2019

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes"

Last fall, the Washington Supreme Court showed its willingness to strike down various extreme sentences when it concluded the state's death penalty administration was so arbitrary as to be violative of the state constitution, and soon thereafter in a distinct ruling decided to categorically bar the imposition of a juvenile life without parole based again on the state constitution.  But earlier this month, this Court refused to extend this constitutional jurisprudence to LWOP sentences imposed under its recidivist statutes in Washington v. Moretti, No. 95263-9 (Wash. Aug 15, 2019) (available here).  Here is how the opinion for the unanimous Court gets started and concludes:

Under the Persistent Offender Accountability Act(POAA), the third time a person is convicted of a "most serious offense," they mustbe sentenced to life in prison without the possibility of parole.  RCW9.94A.030(38)(a), .570.  This statute is colloquially known as the "three strikes andyou're out" law.  State v. Thome, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people whowere in their 30s or 40s when they committed their third strike but were young adultswhen they committed their first strike.

We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison withoutthe possibility of parole for fully developed adult offenders who committed one oftheir prior strikes as young adults. We also hold that the sentences in these cases arenot grossly disproportionate to the crimes....

Petitioners argued that sentencing adult offenders to mandatory sentences of life without the possibility of parole under the POAA when one of their prior strike offenses was committed as young adults is either cruel, in violation of article I, I section 14 of the Washington Constitution, or cruel and unusual, in violation of the Eighth Amendment to the United States constitution. We hold that it is not.

The petitioners have not shown a national consensus against this sentencing practice, and our own independent judgment confirms that there is nothing to suggest that these petitioners are less culpable than other POAA offenders.  The sentences in these cases do| not categorically violate the Washington Constitution.  Because our I constitution is more protective than the federal constitution in this context, we need not analyze this question under the Eighth Amendment.  Finally, we hold that these sentences are not grossly disproportionate to the offenses under the Fain factors.

Adding to the intrigue of this ruling is a thoughtful concurrence by Justice Yu that was joined by two other members of the court which starts this way:

This case touches on the issue of sentencing individuals to life without the possibility of parole for a wide range of lower level offenses.  I agree with the court's narrow holding that there is currently no categorical constitutional bar to the inclusion of an offense committed as a young adult as a predicate for purposes of the Persistent Offender Accountability Act ("Three Strikes Law"), ROW 9.94A.570.   But a punishment that may be constitutionally permissible today may not pass muster tomorrow.  I therefore write separately to express my growing discomfort with the routine practice of sentencing individuals to life without the possibility of parole, regardless of the offense or the age of the offender. 

This court's decision in State v, Gregory limited the array of punishments that may be imposed for the most serious offenses by eliminating the death penalty. 192 Wn.2d 1, 427 P.3d 621 (2018) (plurality opinion).  Every death sentence in this state has been commuted to the next most severe punishment available — life without the possibility of parole. Id. at 36.  As a result, the range of offenses that require imposition of the most severe punishment the state can impose has been expanded.  Persistent offenders who have committed robberies and assaults are now grouped with offenders who have committed the most violent of crimes, including aggravated murder and multiple rapes.  The gradation of sentences that once existed before Gregory have now been condensed.  As a result, a serious reexamination of our mandatory sentencing practices is required to ensure a just and proportionate sentencing scheme.

August 24, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, August 23, 2019

Lots of advice on federal prisons for AG Barr and the new leadership at the Bureau of Prisons

As reported here, this week started with Attorney General William Barr announcing the appointment Dr. Kathleen Hawk Sawyer as the Director of the Federal Bureau of Prisons and Dr. Thomas R. Kane as the Deputy Director.  Perhaps unsurprisingly, this development has prompted some folks to share advice on how federal prison system could be better run.  Here is some of the discussion I have noticed:

By Mark Holden via the Washington Examiner, "New Bureau of Prisons leadership should focus on rehabilitation"

By Emily Mooney via the Washington Examiner, "AG William Barr must do more to fix dismal prison conditions" by

By Jaime Nawaday and Jack Donson via The Hill, "A better way to run the Federal Bureau of Prisons"

By Laura Paddison at HuffPost, "How Norway Is Teaching America To Make Its Prisons More Humane"

Via NPR, "What's Changed Since Kathleen Hawk Sawyer Last Headed Prison Bureau?"

August 23, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Thursday, August 22, 2019

Terrific review of localities that are "Addicted to Fines"

The latest (and sadly the last) issue of Governing magazine has this terrific lengthy cover story fully titled "Addicted to Fines: Small towns in much of the country are dangerously dependent on punitive fines and fees." I recommend the full extended article, and here is how it gets started:

Flashing police lights are a common sight all along Interstate 75 in rural south Georgia.  On one recent afternoon in Turner County, sheriff’s deputies pulled over a vehicle heading northbound and another just a few miles up on the opposite side of the interstate.  In the small community of Norman Park, an officer was clocking cars near the edge of town. In Warwick to the north, a police cruiser waited in the middle of a five-lane throughway.

These places have one thing in common: They issue a lot of tickets, and they finance their governments by doing it.  Like many other rural jurisdictions, towns in south Georgia have suffered decades of a slow economic decline that’s left them without much of a tax base.  But they see a large amount of through-traffic from semi-trucks and Florida-bound tourists.  And they’ve grown reliant on ticketing them to meet their expenses.  “Georgia is a classic example of a place where you have these inextricable ties between the police, the town and the court,” says Lisa Foster, co-director of the Fines and Fees Justice Center.  “Any city that’s short on revenue is going to be tempted to use the judicial system.”

This is by no means just a Georgia phenomenon. Throughout the country, smaller cities and towns generate major dollars from different types of fines, sometimes accounting for more than half of their revenues. Some places are known for being speed traps. Others prop up their budgets using traffic cameras, parking citations or code enforcement violations.

To get a picture of just how much cities, towns and counties rely on fines and fees, Governing conducted the largest national analysis to date of fine revenues and the extent to which they fund budgets, compiling data from thousands of annual financial audits and reports filed to state agencies. 

What we found is that in hundreds of jurisdictions throughout the country, fines are used to fund a significant portion of the budget.  They account for more than 10 percent of general fund revenues in nearly 600 U.S. jurisdictions.  In at least 284 of those governments, it’s more than 20 percent.  Some other governments allocate the revenues outside the general fund.  When fine and forfeiture revenues in all funds are considered, more than 720 localities reported annual revenues exceeding $100 for every adult resident. And those numbers would be even higher if they included communities reporting less than $100,000 in fines; those jurisdictions were excluded from our analysis.  In some places, traffic fine revenue actually exceeds limits outlined in state laws.

High fine communities can be found in just about every state, but they tend to be concentrated in certain parts of the country.  Rural areas with high poverty have especially high rates.  So do places with very limited tax bases or those with independent local municipal courts.  And these jurisdictions are far more common in the South than elsewhere.  The states that stood out in our analysis were Arkansas, Georgia, Louisiana, Oklahoma and Texas, plus New York.  Fines and forfeitures accounted for more than one-fifth of general revenues in the most recent financial audits for 52 localities in Georgia, and 49 in Louisiana.  By contrast, several Northeastern states with high property taxes had no localities exceeding the 10 percent threshold.

Notably, the big criminal justice reform plans released by major candidates for the Democratic Prez nomination all make brief mention of excessive fines of fees. But this Governing report provides an interesting insight into just how significant these matters can be for rural areas and their citizenry, and candidates eager to speak to the experiences of rural voters might want to give particular attention to this particular arena for needed criminal justice reforms.

August 22, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Wednesday, August 21, 2019

"How Do Prosecutors (and the Rest of Us) Get Sentencing So Wrong?"

The title of this post is the title of this lengthy new commentary at The Crime Report authored by James Doyle.  Here are excerpts: 

When enlightened prosecutors are forming Conviction Integrity Units to reassess old convictions, initiating Sentence Review Units to re-examine distended sentences would save money, and lead to the release of prisoners who are no longer dangerous.  It’s a very good idea, even if the problem is not as simple as it might seem.  In many states, a D.A. who has identified a grotesquely excessive sentence has no procedural avenue available for cutting the sentence. New legal tools will have to be developed....

But [even if] we cut the prison population by reviewing old sentences and releasing prisoners, how do we avoid quickly replacing them?  Don’t we have to work to understand why the horrific sentences were imposed in the first place?  Why our predecessors zigged when we know that they should have zagged?

For me, the best way to approach this question is to take a few pages from the books of medicine and aviation and follow every finding of an unjust sentence with an all-stakeholders’ forward-looking, non-blaming learning review, focused on avoiding repetition.  When a D.A. uncovers a mistaken sentence it should be treated as a “Sentinel Event” — as an opportunity to learn by mobilizing the perspectives of all ranks, in all of the professional roles implicated: cops, prosecutors, defenders, probation offices, and courts.

And we should hear from the victims, from the communities the sentences were designed to protect, and from the researchers who marshal the data relevant to the decisions and their aftermaths. (It wouldn’t hurt to hear from the defendants too.)...

My prediction is that we will find that there was a moment in almost every case that a new Sentencing Review Unit identifies when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke....

What we actually face is the work product of hard-pressed cops, lawyers, probation officers, and judges trying to get through their days.  They were not driven by ideological commitments or racist theories.  But they were under pressure — from the politicians and the media, from their caseloads, the docket lists, their peers, and administrators thirsty for “outputs.”

They didn’t set out to do extraordinary harm to individual minority defendants; it’s worse than that.  The fact is they didn’t care enough about any individual minority defendant to target one. They barely saw them. These players were seeking their own safety as much as they are seeking anything, and their strongest allegiance was to the path of least resistance.

They wanted to get to get rid of the damned case without a trial, and to move on to the next one.  Then, tomorrow, they would be able to handle that next case in the same way, as long as they managed to preserve the “going rate” today.  Long prison sentences were a weapon in their daily struggles, not their goal.

Mass incarceration was not produced by a clap of legislative thunder; it was produced by a process of drift — even if that process was assisted by new legislative levers. Each day’s longer sentence became the new departure point for the next day’s — which, in turn, was just a little bit longer. So, the new prisoner would be there to be counted next year too.  Who brought that about?  Everybody....

New Sentence Reviews will find individual cases where a prosecutor decided on an extreme sentence and rammed it through.  But more often, an extreme sentence involves acts (and omissions) from across the range of criminal justice operators involved in a case.

Each participant in a sentencing — cop, probation officer, prosecutor, defender, judge — makes choices that affect everyone else’s work.  And all of these players are buffeted simultaneously by external environmental factors: caseloads rise, budgets fall, treatment programs close, spasmodic media pressure ratchets up, options narrow....

A Sentencing Review Unit can do crucial work in correcting injustices.  But we ought to remember what is an axiom to the people who work in the field of public safety: Nothing is ever permanently “fixed”; your “fix” is under attack by its environment the moment it you put it in place.

August 21, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Rounding up some responses to AG Barr's swipe at progressive prosecutors

As noted in this prior post, Attorney General William Barr delivered these extended remarks to a police conference last week which included sharply negative comments about progressive prosecutors who, in AG Barr's words, "spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law."  Not surprisingly, lots of folks were put off by AG Barr's comments and here are just a few pieces I have noticed with reactions thereto:

From David D'Amato at The Hill, "Prosecutors are mainly to blame for the criminal justice crisis"

From Mark Gonzalez at the Washington Post, "Reform prosecutors are committed to making society fairer — and safer"

From Maura Ewing at Slate, "The Trump Administration Is Coming for Progressive Prosecutors"

From William Kelly at the Waco Tribune-Herald, "Attorney General Barr flat wrong on reformist prosecutors"

From Zack Budryk at The Hill, "Current and former prosecutors respond to Barr's 'concerning' comments on progressive DAs"

August 21, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Noticing the tendency for criminal justice reforms to become a scapegoat for all sorts of crime concerns

One of the many challenges of engineering enduring criminal justice reforms can be the tendency of some folks to attribute any new crime concerns or problems (or perceived new concerns or problems) as a harmful consequence of reforms.  All sorts of crimes and crimes rates fluctuate for all sort of reasons, but all to often there is a tendency to want to blame any significant reforms for any new crime issues even when there is little logical connections between the new reforms and the new issues.  This local article from Oklahoma, headlined "QuikTrip questioned on assertion that crime at its stores is up 300% because of SQ780," highlights these problematic dynamics:

Following the passage of a criminal justice reform state question, property crimes in Oklahoma became worse compared to other states in which QuikTrip operates, the company’s manager of public and government affairs said.  QuikTrip’s Mike Thornbrugh spoke Tuesday to the Criminal Justice Reclassification Coordination Council, which is pondering recommendations to changes to criminal justice laws....

Passed by voters in 2016, State Question 780 downgraded several nonviolent offenses from felonies to misdemeanors and reduced their associated sentences. It also increased the property value to $1,000 from $500 for a felony offense.

“The property crimes last year have increased over 300%,” Thornbrugh said. “And the lost inventory in Oklahoma is four times higher than anywhere else that we operate.”  He said the root of the problem is the increase for the dollar amount constituting a felony.  “The biggest item dollar-wise at QuikTrip is probably a carton of cigarettes, which is around $60,” Thornbrugh said. “So what we are experiencing, it takes 15, 20, 25 times for an individual to steal before (prosecutors) can even consider filing a felony.”

QuikTrip has increased security and put locks on cabinets and drawers behind checkout stands and on cooler doors for some items, he said.  But now criminals are breaking off the locks. “We are here to ask you today as you go through deliberations, please understand not everything fits every size,” Thornbrugh said. “We are concerned about the habitual career criminal. That is how they make their livelihood. We are not going after somebody that comes in and steals a donut because they are hungry.”

Oklahoma County Public Defender Bob Ravitz questioned Thornbrugh on his claims. “You mentioned that you were in numerous states,” Ravitz said. “Every one of those states you are in have a higher felony limit than the $1,000 felony limit that Oklahoma has. How come we have the problem that you are enunciating that other states don’t have?”

“Bob, I wish I could give you that answer,” Thornbrugh said.  “All I can do is to tell you the statistics we have and what we deal with day in and day out in those various states. I am not trying to avoid your question. I don’t know. We would like to know the answer to that, too.”

Ravitz said he didn’t understand Thornbrugh’s statement that the increases came after the implementation of State Question 780. Noting that nearly all of the items sold in QuikTrip cost less than $500, Ravitz maintained that raising the limit to $1,000 would not have had any effect.  QuikTrip may have seen a huge increase in crime and thefts, but it would have happened regardless of increasing the felony threshold to $1,000, Ravitz said.

Thornbrugh said there has always been theft but that the company is now seeing the same people stealing over and over again. “My point to you is a lot of these people who are habitual (offenders), they don’t care,” Thornbrugh said, adding that the thieves think nothing will happen to them. Thornbrugh said those who steal are reselling the products.

When contacted by the Tulsa World, the leader of the group that pushed for State Question 780 also dismissed Thornbrugh’s statements. “According to the data, the property crime rate in Oklahoma is at the level it was in 2016,” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform. “Property crimes tend to fluctuate year to year.  The larceny rate actually decreased in 2017 following the implementation of State Question 780 reforms but rose slightly in 2018 to 2016 levels. There is no correlation between crime rates and felony thresholds, including states that have higher thresholds than Oklahoma.”

I suppose it is plausible that petty thieves in Oklahoma somehow felt embolden to steal more cigarettes from QuikTrip convenience stories after the state passed a vote initiative that raised the felony threshold for theft.  But, as this article highlights, this does not seem to be the most obvious reason for why QuikTrip may be having such problems with theft in the Sooner State.  And yet that story that QuikTrip’s manager of public and government affairs is pressing.

August 21, 2019 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Tuesday, August 20, 2019

Could execution troubles help spell the end of Ohio's use of the death penalty?

The question in the title of this post is prompted by this new local Ohio article headlined "House speaker’s support of death penalty is being tested."  Here are excerpts:

Amid Ohio’s difficulty in securing a legal means of execution, House Speaker Larry Householder says he is becoming “less and less supportive” of the death penalty.  The Republican from Glenford addressed the topic on Tuesday morning following a Statehouse press conference when asked if he continues to back capital punishment for some convicted killers.

“I think I am probably like most Ohioans, there was a time that I was extremely supportive of the death penalty,” Householder said in a video of his remarks posted on Twitter by the Statehouse News Bureau. 

“But, as time has gone on, I have become less and less supportive because of the cost, for one,” the speaker said.  “It is extremely expensive to put someone to death in lieu of keeping them in life in prison.  And, also, it’s becoming more and more difficult to do an execution ... we’ve gone from electrocution to lethal injection, now there are issues being raised about lethal injection.  It’s just become more and more difficult to do and it’s more and more expensive,” Householder said.

With a federal judge signaling Ohio’s current lethal injection protocol constitutes cruel and unusual punishment, Republican Gov. Mike DeWine’s administration has been unable to secure different drugs.  Pharmaceutical companies have threatened to cut off their sales of drugs to the state for Medicaid patients, state prisoners and others if their drugs are used in an execution, DeWine said.

DeWine has met with Householder and Senate President Larry Obhof, R-Medina, to discuss the death-penalty stalemate and explore whether the state should adopt an alternate means of execution.  The governor had said he is uncertain whether legislation will emerge this fall when legislators return to adopt another execution method, such as lethal gas.

DeWine has twice delayed the execution of convicted Columbus killer Warren Henness. Ohio’s next two executions are scheduled for Nov. 13 and Dec. 11.  Following only one execution over roughly the past two years, Ohio has killed 56 men since executions resumed in 1999. Death Row currently houses 137 men and one woman.

I have long believed that most support for the death penalty is fairly shallow and that most politicians are inclined to take their lead on this issue from public sentiments. In recent years, public support for the death penalty seems to be growing ever weaker; add administrative headaches and lots of litigation concerning execution methods, and these kinds of comments from state leaders become less surprising.

That all said, I would still be surprised to see serious legislative discussion of death penalty abolition in this (still red) state anytime soon. But maybe these comments will have a snowball effect.

A few (of many) prior recent related posts:

August 20, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Senator Elizabeth Warren releases her plan for "comprehensive criminal justice reform"

Via this lengthy new Medium post, Senator Elizabeth Warren has joined the ranks of a number prominent candidates for the 2020 Democratic Presidential nomination, in particular Joe BidenCory Booker, Pete Buttigeig and Bernie Sanders, in releasing a details agenda for criminal justice reform.  As is always the case, the full discussion merits a full read, and in this space I can only flag a few notable sentencing elements (with lots of links to be found in the original):

The United States makes up 5% of the world’s population, but nearly 20% of the world’s prison population. We have the highest rate of incarceration in the world, with over 2 million people in prison and jail.

Our system is the result of the dozens of choices we’ve made — choices that together stack the deck against the poor and the disadvantaged.  Simply put, we have criminalized too many things. We send too many people to jail. We keep them there for too long.  We do little to rehabilitate them. We spend billions, propping up an entire industry that profits from mass incarceration. And we do all of this despite little evidence that our harshly punitive system makes our communities safer — and knowing that a majority of people currently in prison will eventually return to our communities and our neighborhoods.

To make matters worse, the evidence is clear that there are structural race problems in this system. Latinx adults are three times more likely to be incarcerated than whites. For the exact same crimes, Black Americans are more likely than whites to be arrested, charged, wrongfully convicted, and given harsher sentences. One in ten Black children has an incarcerated parent....

Address the legacy of the War on Drugs. For four decades, we’ve subscribed to a “War on Drugs” theory of crime, which has criminalized addiction, ripped apart families — and largely failed to curb drug use. This failure has been particularly harmful for communities of color, and we need a new approach. It starts with legalizing marijuana and erasing past convictions, and then eliminating the remaining disparity between crack and powder cocaine sentencing. And rather than incarcerating individuals with substance abuse disorders, we should expand options that divert them into programs that provide real treatment....

Prosecutorial and Judicial Reform. Our current criminal system is complex and places enormous power in the hands of the state. The government controls what leads to pursue, what charges are levied, whether a plea is offered, and how long someone spends behind bars. It has massive resources at its disposal, and enjoys few obligations to share information and limited oversight of its actions. All of this makes it challenging to ensure that the accused can go to trial, can get a fair trial, and can receive a just and reasonable sentence if convicted. To make matters worse, race permeates every aspect of the system — people of color are twice as likely to be charged with crimes that carry a mandatory minimum sentence. Reform requires a transparent system that emphasizes justice, that gives people a fighting chance — and truly treats everyone equally, regardless of color. Here’s how we can start.

Strengthen public defenders and expand access to counsel. The Sixth Amendment provides every American accused of a crime with the right to an attorney — but too many defendants cannot afford one, and too often, public defenders are under-resourced, overworked, and overwhelmed. If we expect fair adversarial trials, we need to balance resources on both sides of each case in every jurisdiction. I’ll fund federal public defenders and expand targeted grant funding for public defenders at the state level, to ensure that they have the tools to effectively defend their clients. I’ll also reopen and expand DOJ’s Office for Access to Justice, which worked with state and local governments to expand access to counsel. We should ensure that our public defenders are paid a fair salary for their work, and that their caseloads allow for the comprehensive defense of their clients. Finally, I’ll provide funding for language and cultural competency training, including on gender identity and treatment of individuals with disabilities, so that public defenders are best able to serve their clients....

Reforming Incarceration

The federal prison population has grown 650% since 1980, and costs have ballooned by 685%. This explosion has been driven in large part by rules requiring mandatory minimum sentences and other excessively long sentencing practices. These harsh sentencing practices are not only immoral, there’s little evidence that they are effective. As president I will fight change them.

Reduce mandatory minimums. The 1994 crime bill’s mandatory minimums and “truth-in-sentencing” provisions that require offenders to serve the vast majority of their sentences have not proven effective.  Congress should reduce or eliminate these provisions, giving judges more flexibility in sentencing decisions, with the goal of reducing incarceration to mid-1990s levels.  My administration will also reverse the Sessions memo that requires federal prosecutors to seek the most severe possible penalties, and allow federal prosecutors discretion to raise the charge standards for misdemeanors and seek shorter sentences for felony convictions...

End the death penalty. Studies show that capital punishment is often applied in a manner biased against people of color and those with a mental illness. I oppose the death penalty.  A Warren administration would reverse Attorney General Barr’s decision to move forward with federal executions, and Congress should abolish the death penalty.

Use the pardon and clemency powers broadly to right systemic injustices.  The president has significant powers to grant clemency and pardons, and historically presidents have used that power broadly. But today’s hierarchical process at DOJ results in relatively few and conservative clemency recommendations. I’ll remove the clemency process from DOJ, instead empowering a clemency board to make recommendations directly to the White House. I’ll direct the board to identify broad classes of potentially-deserving individuals for review, including those who would have benefited from retroactivity under the First Step Act, individuals who are jailed under outdated or discriminatory drug laws, or those serving mandatory minimums that should be abolished.

While I will leave it to others to assess this plan as a whole, I must initially express disappointment that plan calls only to "reduce mandatory minimums"  rather than eliminate them.  And, in context, it seems that Senator Warren is only focused on the 1994 Crime Bill mandatory minimums whereas a number of other ones are far more consequential and pernicious. 

Even more worrisome is Senator Warren setting a "goal of reducing incarceration to mid-1990s levels."  Incarceration levels were already crazy-high by the mid-1990s: as this BJS report notes, "prisons at yearend 1996 totaled 427 sentenced inmates per 100,000 residents -- up from 292 in 1990."  Meanwhile, at the end of 2017, as detailed in this BJS document, ten years of small reductions had us down to "440 sentenced prisoners per 100,000 U.S. residents."  In other words, our incarceration rates are already pretty close to "mid-1990s levels" and we might well be below those levels by the end of this year thanks in part to the FIRST STEP Act and its echoes.

A few of many prior recent related posts:

August 20, 2019 in Campaign 2020 and sentencing issues, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Another perspective on the scope of FIRST STEP Act crack resentencing

A few weeks ago in this post I noted the Fifth Circuit ruling in US v. Hegwood addressing intricate question of whether, when Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, it enabled a district court is to conduct a full resentencing or a more limited sentencing modification for eligible offenders.  The Fifth Circuit panel in Hegwood affirmed an approach FSA retroactivity as involving only a modest sentence modification proceeding rather than a complete resentencing. 

This morning I got an email flagging an earlier district court ruling US v. Payton, No. 07-20498-1, 2019 WL 2775530, at *4 (E.D. Mich. July 2, 2019), that goes the other way on this important and consequential issue.  Though predating Hegwood, Payton provides a useful overview and perspective that seemed worth reprinting to create a counterpoint to Hegwood:

District courts across the country are wrestling with this issue.  Many courts have ruled that the First Step Act, in conjunction with § 3582(c)(1)(B), does not authorize a full resentencing; broadly applying Dillon, they have found that a court’s authority under the First Step Act is as constrained as its limited authority under § 3582(c)(2). See Rose, 2019 WL 2314479, at *6 (internal citations omitted).

But a growing number of courts have found just the opposite — that the First Step Act vests the Court with broad discretion to resentence defendants considering the § 3553(a) factors, including the case law and Guidelines in effect today.  See, e.g., United States v. Stone, No. 96-cr-403, 2019 WL 2475750, at *2 (N.D. Ohio June 13, 2019); United States v. Biggs, No. 05-cr-316, 2019 WL 2120226, at *3 (N.D. Ill. May 15, 2019); Simons, 375 F. Supp. 3d 379; United States v. Dodd, 372 F. Supp. 3d 795, 797–98 (S.D. Iowa Apr. 9, 2019); United States v. Powell, 360 F. Supp. 3d 134, 140 (N.D.N.Y. 2019); United States v. Newton, No. 02-cr-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1, 2019); see also United States v. Booker, No. 07 CR 843-7, 2019 WL 2544247, at *3 (N.D. Ill. June 20, 2019); United States v. Black, No. 04-cr-100, 2019 WL 2402969, at *5 (E.D. Va. June 7, 2019); Rose, 2019 WL 2314479, at *7; Shelton, 2019 WL 1598921, at *2....

The Court agrees with Defendants that the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison. See Biggs, 2019 WL 2120226, at *3 (“Because the potential reduced penalties for covered offenses could influence the range of recommended penalties for non-covered offenses, ‘impos[ing] a reduced sentence as if ... the Fair Sentencing Act ... were in effect’ entails resentencing on all counts.”); see also Pepper v. United States, 562 U.S. 476, 481 (2011) (holding that “a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.”).

This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.  See United States v. Allen, No. 3:96-CR-00149, 2019 WL 1877072, at *3 (D. Conn. Apr. 26, 2019); Simons, 375 F. Supp. 3d at 389.

It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the FIRST STEP Act that makes its way to the US Supreme Court.

Prior related post:

August 20, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 19, 2019

AG Barr announces new leadership for the federal Bureau of Prisons

A high-profile controversy in the criminal justice can have lots of ripples, and those ripples made it to the head of the federal Bureau of Prisons as detailed in this official press release from the US Department of Justice. Here are the basics:

Attorney General William P. Barr today announced he will appoint Dr. Kathleen Hawk Sawyer as the Director of the Federal Bureau of Prisons (BOP) and Dr. Thomas R. Kane as the Deputy Director of the Federal Bureau of Prisons (BOP).  Dr. Hawk Sawyer previously served as Director of BOP from 1992 – 2003.

“I am pleased to welcome back Dr. Hawk Sawyer as the Director of the Federal Bureau of Prisons. Under Dr. Hawk Sawyer’s previous tenure at the Bureau, she led the agency with excellence, innovation, and efficiency, receiving numerous awards for her outstanding leadership, “ said Attorney General Barr.  “I am also pleased to announce Dr. Thomas R. Kane as the Deputy Director of BOP. Dr. Kane served in the Bureau for over thirty years under four Attorneys General and is known for his expertise and proficiency in prison management and organization. During this critical juncture, I am confident Dr. Hawk Sawyer and Dr. Kane will lead BOP with the competence, skill, and resourcefulness they have embodied throughout their government careers.  I would also like to thank Hugh Hurwitz, Acting Director of BOP, for his dedication and service to the Bureau over the last fifteen months.  I have asked Mr. Hurwitz to return to his responsibilities as Assistant Director of BOP’s Reentry Services Division, where he will work closely with me in overseeing the implementation of one of the Department’s highest priorities, the First Step Act.”

August 19, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Seeking input and perspectives on "hot topics" in sentencing law, policy and practice

I am very excited that this afternoon I have the honor and privilege to begin teaching a new group of bright Ohio State students my Sentencing Law course.  I have taught this three-credit, upper-level course nearly every other year since I started teaching waaaaay back in 1997.  Since 2003, I have had the added pleasure of teaching from my own co-authored casebook, and this time around I get to use the new streamlined Fourth Edition of Sentencing Law and Policy: Cases, Statutes, and Guidelines.

As regular readers can imagine, because sentencing law has changed a lot over the past 20 years, my course coverage has changed a lot over the years.  Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and intellectually disabled murderers and whether there were any constitutional concerns with federal judicial fact-finding based on a preponderance of evidence to increases guideline sentencing ranges.

Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring.  But each time I teach this course, in addition to reviewing the basics of capital punishment and federal sentencing doctrines, I am eager to include coverage of the most-pressing/most-interesting/most-consequential topics of current doctrinal and policy debate. 

So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider important "hot-topic" units in a three-credit, upper-level Sentencing Law course.   Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they might assume my students now learn about when they hear they have taken a course on Sentencing Law.  (A similar post from 5.5 years ago generated a couple dozen interesting comments which are still interesting and timely.  But I am eager to see what readers might have to say now.)

August 19, 2019 in Recommended reading, Who Sentences | Permalink | Comments (5)

"More than half of Michigan juvenile lifers still wait for resentencing"

The title of this post is the title of this notable recent report from the Detroit Free Press spotlighting how slow the state has been to implement the Supreme Court's Eighth Amendment rulings in Miller and Montgomery limiting the use of LWOP for juvenile offenders.  I recommend the piece in full, and here is how it gets started:

Three and a half years after the U.S. Supreme Court ruled that juvenile lifers should have the opportunity to be re-sentenced and come home, more than half in Michigan are still waiting to go before a judge to learn their fate, according to a Free Press analysis.  That means nearly 200 inmates are waiting for a judicial review.

“We are not resolving cases at the rate that you would hope, given that the United States Supreme Court said these sentences should be rare," said Tina Olson, an attorney with the Michigan State Appellate Defender Office (SADO), whose office is representing roughly two-thirds of the state’s cases.

In 2012, the court ruled in Miller v. Alabama that juveniles should no longer be sentenced to mandatory life terms, citing developmental differences in the teenage brain, as well as the ability for rehabilitation.  The high court doubled down on the decision in January 2016, ruling in Montgomery v. Louisiana that the Miller opinion should be applied retroactively.

While the 2016 Montgomery decision should have resulted in a clear-cut path for juvenile lifers, the system remains speckled with question marks.  And since the opinion left the application of the ruling up to each state, there is little agreement on what this process should look like.  Take, for example, Philadelphia County in Pennsylvania, which had almost as many juvenile lifers as the entire state of Michigan.  It is expected to complete all but 10 of its resentencing cases by the end of the summer.  Not a single juvenile lifer in the county has been given a new life sentence so far.

By and large, prosecutors in Michigan defend the slower process, contending they are thoughtfully weighing each case.  "We tried to take a serious look at the criteria set forth in Miller, and put those factors into play when making those decisions on each case," said Kent County Prosecutor Christopher Becker, whose office was responsible for making sentencing recommendations for 23 defendants.  Thirteen were originally recommended for continued life sentences — one was subsequently re-evaluated and changed to a term of years.

"I don’t think there is anything wrong with the pace," he said, explaining that a good number of the state's juvenile lifers have not yet served 25-years — the minimum requirement for resentencing — and therefore getting them before a judge is not as paramount.  Only four of the 23 juvenile lifers in Becker’s county, for example, have served 25 years so far.

While the state has made progress around resentencing — as of July 1, 86 of the state’s 354 juvenile lifers had been released, a 300% increase since fall 2017 — defense attorneys and a new crop of progressive prosecutorial candidates are raising questions.  Olson, and others like her, point to the fact that in July 2016, when Michigan prosecutors had to submit their resentencing recommendations, they, as a whole, requested continued life sentences for 66% of the state’s juvenile lifers — a figure that appears incongruous with the Supreme Court’s ruling that the sentence should just be reserved for "the rare juvenile offender whose crime reflects irreparable corruption."

While prosecutors have been able to walk back and change recommendations for continued life, and judges can rule against a prosecutor's recommendation, the original sentences more or less placed defendants on a slower track, as those originally recommended for a resentencing (known as a term of years) were prioritized in the process.  The 66% that were slotted for continued life were, therefore, de-prioritized.

Under Michigan state law, a recommendation of term of years goes directly to a judge for sentencing, while a recommendation of continued life is a much more time-consuming legal process that can involve a hearing, evidence and witnesses.  For several years, Michigan criminal justice players were debating whether these hearings should be heard by a judge or a jury — an uncertainty that, until the Michigan Supreme Court weighed in last summer, prompted many prosecutors to place such cases on hold.

And so, while there are several factors that have contributed to the slow resentencing process — clunky bureaucracy, disagreements over procedures, and a lack of an official database tracking the process — the original resentencing recommendations have been highlighted as a major contributing factor. The first in a litany of interconnected holdups.

August 19, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, August 18, 2019

Senator Bernie Sanders releases criminal justice reform plan under banner "Justice and Safety for All"

A number prominent candidates for the 2020 Democratic Presidential nomination, in particular Joe BidenCory Booker and Pete Buttigeig, have put forth major criminal justice reform plans in recent months.  The latest to join their ranks in Senator Bernie Sanders, who today released this extended plan with lots of reform rhetoric and more than a few notable concrete proposals.  I recommend reading the full plan, and here are excerpts with just some of the some rhetoric and some particulars that especially caught my attention:

Due to the historical legacy of institutional racism in this country, mass incarceration disportionately falls on the shoulders of black and brown people in America. In fact, black Americans are incarcerated at five times the rate of white Americans, and even though people use drugs like marijuana at roughly the same rates across all races, black Americans are nearly four times more likely to be arrested for marijuana possession than white Americans. These disparities pervade every aspect of the criminal justice system. Black Americans, and especially young black men, are more likely to be stopped by the police, subjected to excessive force, arrested, and jailed than whites.

When Bernie is president, we will finally make the deep and structural investments to rebuild the communities that mass incarceration continues to decimate. We must move away from an overly-punitive approach to public safety and start focusing on how to safeguard our communities, prevent the conditions that lead to arrests, and rehabilitate people who have made mistakes....

Right to Counsel

In 1963, the Supreme Court decided Gideon v. Wainwright, guaranteeing all felony defendants counsel, yet today 90 to 95 percent of criminal cases are decided by a plea deal, too often without the defendant playing an active role.

Across the United States, more than 80 percent of felony defendants cannot afford a privately retained lawyer and have to rely on state-administered public defenders or court-appointed counsel. Yet in states across the country, public defenders have far too many clients and too few resources to offer adequate representation. Despite the often heroic efforts of public defenders and other appointed counsel, the workload makes it impossible to provide the quality of representation that each defendant deserves.  77 percent of black Americans and 73 percent of Latinos in state prisons had a public defender or court-appointed counsel, yet 75 percent of county-based public defender offices have exceeded the maximum recommended limit of cases received per attorney.

America must not be a country where only the rich enjoy the protections of the Fifth Amendment. We must not have a court system that offers “the best justice money can buy.” We must guarantee all Americans their Sixth Amendment rights.

As president, Bernie will:

  • Triple national spending on indigent defense, to $14 billion annually.
  • After a review of current salaries and workload, set a minimum starting salary for all public defenders.
  • Create and set a national formula to assure populations have a minimum number of public defenders to assure full access to constitutional right to due process.
  • Establish federal guidelines and goals for a right to counsel, including policies that reduce the number of cases overall.
  • Create a federal agency to provide support and oversight for state public defense services.
  • Authorize the Department of Justice to take legal action against jurisdictions that are not meeting their Sixth Amendment obligations.
  • Cancel all existing student debt and cancel any future student debt for public defenders through the Public Service Loan Forgiveness Program....

Ending Mass Incarceration and Excessive Sentencing....

As president, Bernie will:

  • Abolish the death penalty.
  • Reverse the Trump administration’s guidance on the use of death penalty drugs with the goal of ending the death penalty at the state level.
  • Stop excessive sentencing with the goal of cutting the incarcerated population in half.
  • End mandatory sentencing minimums.
  • Reinstate a federal parole system and end truth-in-sentencing. People serving long sentences will undergo a “second look” process to make sure their sentence is still appropriate.
  • End “three strikes” laws. No one should spend their life behind bars for committing minor crimes, even if they commit several of them.
  • Invigorate and expand the compassionate release process so that people with disabilities, the sick and elderly are transitioned out of incarceration whenever possible.
  • Expand the use of sentencing alternatives, including community supervision and publicly funded halfway houses. This includes funding state-based pilot programs to establish alternatives to incarceration, including models based on restorative justice and free access to treatment and social services.
  • Revitalize the executive clemency process by creating an independent clemency board removed from the Department of Justice and placed in White House....
  • Legalize marijuana and vacate and expunge past marijuana convictions, and ensure that revenue from legal marijuana is reinvested in communities hit hardest by the War on Drugs....
  • Raise the threshold for when drug charges are federalized, as federal charges carry longer sentences....
  • Institute a full review of the current sentencing guidelines and end the sentencing disparity between crack and cocaine.

 

A few of many prior recent related posts:

August 18, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

North Carolina Supreme Court holds mandatory lifetime GPS monitoring for some sex offenders violates Fourth Amendment

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.  Here is part of the start of the majority opinion (authored by Justice Earls) in this latest version of Grady:

The United States Supreme Court has determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders, which involves attaching an ankle monitor “to a person’s body, without consent, for the purpose of tracking that individual’s movements,” constitutes a search within the meaning of the Fourth Amendment.  Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). The Supreme Court remanded the case for an examination of “whether the State’s monitoring program is reasonable — when properly viewed as a search.” Id. at 1371....

In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional.  The Court of Appeals reversed, but only as to Mr. Grady individually.  We conclude that the Court of Appeals erroneously limited its holding to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies equally to anyone in Mr. Grady’s circumstances.  Cf. Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that state statutes mandating a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to a specific group, namely juveniles who did not commit homicide).

In North Carolina, “SBM’s enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime trackers.’ ” State v. Bowditch, 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010).  Mr. Grady is in the third of these categories in that he is subject to SBM for life and is unsupervised by the State through probation, parole, or post-release supervision.  Additionally, Mr. Grady is a “recidivist,” which makes lifetime SBM mandatory as to him without any individualized determination of the reasonableness of this search.  Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14- 208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are in the third Bowditch category and who are subject to mandatory lifetime SBM based solely on their status as a “recidivist,” we modify and affirm the opinion of the Court of Appeals.

And here is a paragraph from the start of the dissenting opinion authored by Justice Newby:

Using the remand as an opportunity to make a broad policy statement, the majority, though saying it addresses only one statutory classification, recidivist, applies an unbridled analysis which understates the crimes, overstates repeat sex offenders’ legitimate expectations of privacy, and minimizes the need to protect society from this limited class of dangerous sex offenders.  The majority’s sweeping opinion could be used to strike down every category of lifetime monitoring under the SBM statute.

August 18, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, August 16, 2019

"Gamble, Dual Sovereignty, and Due Process"

The title of this post is the title of this new paper now available on SSRN and authored by Anthony Colangelo.  Here is its abstract:

The Constitution’s Double Jeopardy Clause is an analytically gnarly beast.  What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls.  At the center is the so-called “dual sovereignty” doctrine.  This principle holds that separate sovereigns may prosecute for what looks like the same “offence” — to use the Constitution’s language — because they have separate laws, and those laws prohibit separate offenses, and thus the Double Jeopardy Clause’s bar on multiple prosecutions for the same offense simply does not come into play.  As a doctrine that relates to a right guaranteed by the Bill of Rights, it’s remarkably one-dimensional in favor of government.

In Gamble v. United States the Supreme Court reaffirmed and built upon this view, or what I have called a “jurisdictional theory” of double jeopardy.  This theory peels back the label “sovereign” to extract its underlying rationale; namely, sovereign means an entity with independent jurisdiction to make and apply law, or prescriptive jurisdiction, and that prescriptive jurisdiction authorizes independent jurisdiction to enforce law through a separate prosecution.  This terminological move from sovereignty to jurisdiction is not just semantic.  Rather, it opens up analysis.  The theory holds strong explanatory power for current double jeopardy law and practice as well as dynamic doctrinal and normative implications for double jeopardy law going forward, perhaps most of all for U.S. prosecutions relating to criminal activity abroad like human rights abuses, piracy, and various forms of terrorism.

It also imports a whole other part of the Constitution: The Due Process Clause, or Clauses — the Fourteenth Amendment for the states, and the Fifth Amendment for the federal government.  For any exercise of jurisdiction in this country must be measured against due process. In other words, if the sovereign has no jurisdiction over the offense, the sovereign cannot successively prosecute.  Here Gamble’s language that the United States might successively prosecute for crimes abroad when it has “interests” fits snugly into existing due process analyses because both the Fourteenth Amendment and the Fifth Amendment tests also involve interest analyses.

August 16, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Billionaire behind victims' rights reforms now prompting another kind of criminal justice change in Nevada after cutting sweet plea deal for his drug offenses

Last year I noted in this post the remarkable criminal justice story of Henry Nicholas, the tech billionaire who has pushed Marsy's Law reforms around the nation, upon his arrest at a Las Vegas Strip casino-resort on suspicion of trafficking heroin, cocaine, meth and ecstasy.  A helpful former student made sure I saw this new press article, headlined "Public defenders to use generous plea deal offered to billionaire Henry Nicholas as model for future plea deal requests," which details how the Nichols case is now having a remarkable ripple though the local criminal justice system.  Here is the latest chapter in this fascinating story:

Starting next week, public defenders in Clark County plan to directly invoke and ask prosecutors to grant terms similar to the generous plea deal offered to tech billionaire Henry Nicholas for criminal cases with indigent defendants.  According to documents shared with The Nevada Independent, attorneys in the Clark County public defender’s office have drafted a plan to begin filing motions in criminal cases seeking similar treatment offered to Nicholas by Clark County District Attorney Steve Wolfson’s office.

Civil justice advocates and some Democratic lawmakers cried foul after Wolfson’s office announced a plea deal with Nicholas, after he and a woman (Ashley Fargo) were arrested in Las Vegas last year and charged with several counts of felony drug trafficking.  The deal will see the two avoid prison time, go on informal probation, perform 250 hours of community service, attend regular drug counseling sessions and each make a $500,000 contribution to drug counseling programs in Clark County.

Public defenders in Clark County plan to begin filing motions in District and Justice courts that draw a direct comparison to the plea deal reached with Nicholas and the treatment of indigent defendants, including asking for a reduction in sentence, own recognizance release and a contribution of 0.0128 percent of their net worth — the same percentage of Nicholas’s net worth that he agreed to pay as part of his plea deal.  “Billionaire Defendant Nicholas and Defendant XXX are similarly situated and should be similarly treated by the prosecution and the courts,” the draft motion states. “The primary difference between the two men is that Billionaire Defendant Nicholas is wealthy, while Defendant XXX is not.”

The office has also drafted a form motion asking a District Court judge to recuse the district attorney’s office, for use in potential future criminal cases where prosecutors offer a less-generous plea deal than the one offered to Nicholas and that states the “appearance of impropriety and unfairness” so erodes the public trust that appointment of a special prosecutor is warranted.  “The appearance of impropriety and the bias is most obviously seen in the overly harsh plea bargain the State has offered the indigent defendant versus the sweetheart deal afforded the Billionaire Defendant Nicholas,” the draft motion states. “In this case, it seems clear that the criminal justice system, wealth rather than culpability shaped the outcome.”

The district attorney’s office declined to comment on the planned filings.

Nicholas is the co-founder and former CEO of Broadcom Corporation, with an estimated net worth of $3.8 billion. After leaving Broadcom in 2003, he has poured millions of dollars into passing ballot measures in multiple states (including Nevada) to add a “victim’s bill of rights” called Marsy’s Law to individual state constitutions.  Wolfson appeared in television ads supporting the ballot question in the run-up to the 2018 election.

Nicholas and Fargo — the ex-wife of Brian Fargo, an heir to the Wells Fargo bank fortune — were arrested in Las Vegas in August of 2018 on suspicion of drug trafficking after police found multiple drugs including heroin, cocaine, methamphetamine and ecstasy in their hotel room.  According to a police report, Nichols alerted hotel security at the Encore after he had difficulty opening the door to his hotel room and became concerned about the welfare of Fargo.  Police entered the room and found Fargo unresponsive with a semi-deflated balloon in her mouth, used to recreationally ingest nitrous-oxide (commonly known as whippets or poppers).  Police also reported finding 96 grams of methamphetamine, 4.24 grams of heroin, 15.13 grams of cocaine, and 17.1 grams of psilocin in the hotel room....

Nicholas was previously indicted on federal drug charges in 2008, but the charges were dropped in 2010.  He is scheduled to enter the plea deal, which must be accepted by a judge, on August 28.

I have long said in a variety of settings that advocates of criminal justice reforms out to utilize strategically, rather than complain loudly about, the lenient treatment often afforded more privileged criminal defendants.  Thus, I am quite pleased to see this clever effort by the Clark County public defender's office to try to get all of their less privileged defendants the Nichols treatment.

Prior related post:

August 16, 2019 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Thursday, August 15, 2019

"Is Mass Incarceration Inevitable?"

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

The claim that American justice system engages in "mass incarceration" is now a cliché, albeit one that seems entirely justified by both the number and rate of people who are behind bars.  As a result, a large number of states and the fed­eral government have engaged in wide-ranging reform efforts to shorten senten­ces, divert people from prison, and in general reduce incarceration numbers to more manageable levels.  Although these efforts have made modest gains, there has been little discussion of whether their ultimate goal is feasible-reducing incarceration levels to a point where "mass" incarceration is no longer an apt description.

This article explores the likelihood of a meaningful, sustained reduction in incarceration rates. It begins by asking what we really mean by mass incarcera­tion and finds that while the definition is surprisingly complex, the label ulti­mately seems justified.  Then, using existing and original compilations of data, the article examines some of the less-obvious obstacles to reducing prison popula­tions.  In particular, it highlights the difficulty of reducing incarceration rates without addressing the problems created by those convicted of violent crimes, something few reforms have been willing or able to do.  It also argues that those who believe prison reform will lead to economic savings-a primary motivation in virtually every state-are misguided, and that illusion of economic savings might ultimately derail the reform efforts.

The article then takes a further step and suggests that efforts to decrease incarceration levels will inevitably be frustrated unless the most influential per­son in the creation of mass incarceration, the prosecutor, is induced to play a more central role.  To date, reform efforts have routinely targeted everyone in the process except prosecutors, and this article offers both suggestions on why this is so and an argument for why prosecutors are an indispensable part of any change.  The article concludes with the sobering prediction that, as useful as recent reforms have been, as currently constructed they will ultimately be inad­equate to erase the mass incarceration label for years to come.

August 15, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Shouldn't all prosecutors (and judges and defense attorneys and police and probation officers) make regular and repeated visits to prisons?

Last month the folks at FAMM started the #VisitAPrison challenge which calls on lawmakers to visit a prison or jail and which rightly highlights that many legislators who make and change laws governing incarceration often have no direct or personal experiences with prisons or persons incarcerated therein. I consider the FAMM campaign very valuable and important, and this interesting new piece by Daniel Nichanian at The Appeal Political Report prompted the follow-up question that serves as the title of this post.  This piece is headlined "Prosecutor Sends Staff to Prison, in a Bid to Counter Their Reflex to Incarcerate,"and I recommend it in full. Here are excerpts:

Sarah Fair George, the state’s attorney of Chittenden County (home to Burlington) in Vermont, has instructed all staff and prosecutors who work in her office to visit the St. Albans prison, also known as the Northwest State Correctional Facility. “Most prosecutors have never stepped foot in the buildings that they sentence people to spend years in,” she wrote on Twitter. “That needs to change.”

I talked to George on Wednesday about her initiative, and how it could change practices in her office. She said prosecutors often treat prison time “nonchalantly,” as something abstract, and get in the habit of “just throwing out numbers.” “We say six months or two years, and don’t really have to think about what it means for the person,” she explained.

“It’s important to stand in that space and see it for yourself, and feel it for yourself,” she added. “My hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days can be enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.”

George said this perspective should fuel shorter sentences, but also restrain prosecutors from seeking incarceration in the first place. “They spent an hour and a half there and were relieved to get out,” she said of staff members who have already visited St. Albans as part of her initiative. “So let’s imagine how this might impact somebody who is there for six months or a year, and how this impacts them as a community member when they get back out. Is there a way that we can avoid that entirely, and not risk them coming out a more violent person or with some type of trauma having been in jail? Can we find another way?”...

The interview has been condensed and lightly edited for clarity.

Q: You announced that you have instructed prosecutors in your office to visit a prison in the next month. What is the impetus for this, and what insights do you wish them to glean?

A:  For me, it has gone back to my own experience having been in some of these prisons. It has shaped a lot of my reform policies and how I approach prosecution in general. When I was in grad school, I went to multiple prisons and was on the mental health wards at those prisons, which were in some cases pretty appalling. Then, when I was at the public defender’s office, I went to several prisons and met with clients and heard the stories of either how they were treated in jail or the conditions of jail, solitary confinement, stuff like that. I came into being a prosecutor with that background, and with that idea of what some of those prisons are like.

I have always thought it is important for people to understand what probation does, and what some of our community partners do, and that’s always been stressed. But it’s never been stressed that they should also fully understand what prison means, and what a jail sentence means for these individuals. As prosecutors, we get very comfortable with just throwing out numbers as an amount of time. We say six months or two years, and don’t really have to think about what it means for the person, that six months for one person could be detrimental to their entire lives.

What are you thinking of when you say it’s important to understand what prison means for individuals? What it is that you think people in your office should have to witness?

Literally just seeing the facility, and understanding literally where they’re sending people. But also being in one of those cells and sitting on the bed in a cell and seeing how small that space is, and seeing a solitary confinement room and seeing how claustrophobic you get in five minutes in that room. Hearing those sounds in the jail of those doors closing, and how cold and harsh all of those sounds are. Seeing inmates in that environment. In Vermont, there is this idea that jail isn’t that bad, and in some sense we’re very lucky, but that’s a lot easier to say on the outside. You spend an hour and a half in the jail and you find yourself relieved to come out. You know you were always coming out, but you have that experience and you think, “Okay, maybe that TV and that good food is not as important as I thought it was when I just lost my freedom for an hour and a half, knowing full well I’ll be coming out and I’m still relieved.”

As a prosecutor, the only time I’ve been to a jail is for a deposition of an inmate, or an inmate who wants to do a proffer. Those meetings are very structured, they’re in a space right inside the jail, so you’re not going very far. There’s really nobody else around. That doesn’t count for me, that’s a very easy way to say you’ve been in a jail without actually being in a facility. I think it’s important to really stand in that space and see it for yourself, and feel it for yourself.

Q:  How exactly do you think prosecutors should take these things into account in the course of their work? At what stages of their discretion should this weigh in?

A: It may not start necessarily with the charging decisions, but I think in some cases it could. If you know for example that this person’s parole could be revoked and they may go back to jail, or you know that they might be held in bond or some other violation, then maybe it does charge at the charging decision. But at the very least, I think that when you’re giving an offer on a case and you nonchalantly say six months as if that’s not a lot of time, my hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days is enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.

But also understanding where people are coming from. Somebody may have a long record, and that record has led to incarcerative sentences several times in their history — maybe you can have a better understanding of why they are in the place that they’re in, having spent all that time in jail. Maybe doing it again isn’t going to do them hasn’t favors. That hasn’t worked, that person is back. Maybe we need to find another way to address this particular person.

August 15, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (10)

Tuesday, August 13, 2019

"Gatekeepers: The Role of Police in Ending Mass Incarceration"

The title of this post is the title of this lengthy new Vera Institute report.  Here is a paragraph from the report's introduction:

With a growing consensus that local jails are a primary locus of mass incarceration, data on arrest trends points to an urgent need to focus more deliberately on one of the problem’s primary points of origin: policing practices.... Police officers, as gatekeepers of the criminal justice system, hold almost exclusive authority — by way of citations, arrests, and even physical force — to enforce and regulate the law.  And they have increasingly been asked to do this in situations that involve societal problems that would be better resolved in the community — problems like homelessness, mental illness, and substance use.  Although arrest volume is down across almost all offense categories since its high-water mark of 15 million in 1997, nationally there are still roughly 28,000 arrests every day, which equates to one arrest every three seconds or approximately 10.5 million every year.  By virtue of their arrest, all these people face probable jail incarceration.  This volume does not reflect an increase in arrests for serious crimes.  In fact, the proportion of serious violent crimes among all arrests — less than 5 percent — has not changed in decades.  Rather, arrests most often occur in response to minor offenses — including drug use violations and disorderly conduct — which account for more than 80 percent of total arrests.  This mass enforcement of relatively minor law violations suggests that policing practices currently tend toward punitive approaches — that is, those that prioritize arrest and frequently lead to time behind bars—in ways that are often not necessary to achieve public safety.

August 13, 2019 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, August 12, 2019

In speech to police, Attorney General Barr promises proposal to speed up death penalty and ratchet up drug war while taking swipe at progressive prosecutors

Attorney General William Barr delivered these extended remarks on Monday at the Grand Lodge Fraternal Order of Police's 64th National Biennial Conference.  The AG's initial comments about the death of Jeffrey Epstein has received the most press coverage, but criminal justice reformers should be more interested in his comments on the death penalty, progressive prosecutors ad federal enforcement efforts. Here are excerpts:

This Administration will not tolerate violence against police, and we will do all we can to protect the safety of law enforcement officers. I will share with you one proposal that we will be advancing after Labor Day.  We will be proposing legislation providing that in cases of mass murder, or in cases of murder of a law enforcement officer, there will be a timetable for judicial proceedings that will allow imposition of any death sentence without undue delay.  Punishment must be swift and certain.

There is another development that is demoralizing to law enforcement and dangerous to public safety.  That is the emergence in some of our large cities of District Attorneys that style themselves as “social justice” reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.

These anti-law enforcement DAs have tended to emerge in jurisdictions where the election is largely determined by the primary.  Frequently, these candidates ambush an incumbent DA in the primary with misleading campaigns and large infusions of money from outside groups.

Once in office, they have been announcing their refusal to enforce broad swathes of the criminal law.  Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution.  And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient.  So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.

One of my messages today is that the American people need to pay close attention to issues of public safety in their communities.  As a society we should not take our police officers for granted....

Two of my highest priorities are continuing the fight against violent crime and combating the opioid epidemic and the scourge of other dangerous drugs, like resurging methamphetimine.

When I last served as Attorney General in the early 90’s, violent crime was at all-time high levels in the country.  Starting in the 1960’s, we had gone through three decades of “reform” that turned our criminal justice system into a laughable revolving door. Incarceration rates dropped precipitously; and crime rates tripled, reaching a high in 1991-92.

Starting with the Reagan Administration, and running though the Bush, Clinton, and Bush years, we strengthened our criminal justice systems at both the Federal and state level.  We focused on getting chronic violent offenders off the streets and into prisons to serve meaningful sentences that protected the community.  We worked closely with our State and local partners on programs like Weed & Seed and Triggerlock.

The result?  A steady and sharp drop in violent crime starting in 1992.  Today, violent crime has been cut in half.

Unfortunately, in the last few years of the Obama Administration, the violent crime rate started rising again.  Days after his inauguration, President Trump issued an Executive Order with two clear directives.  First, he declared that this Administration would reduce crime in America.  Second, he directed the Department of Justice to take the lead on Federal actions to support law enforcement efforts nationwide and to collaborate with State, tribal, and local jurisdictions to restore public safety to all of our communities.

We take this responsibility seriously and, working closely with our State and local partners, we have succeeded once again in driving crime rates back down.  I am proud of our work together on Project Safe Neighborhood, and a variety of joint anti-gang and anti-gun crime efforts.

We have made a difference, but we cannot rest on our laurels.  Crime levels are still too high and we must keep up a full court press. In the weeks ahead, we will be doubling down on our attack on violent crime.  We will be expanding our efforts against gun violence and violent gangs. Once again, we plan on doing this shoulder-to-shoulder with our State and local partners.

On the drug front, we are facing a monumental challenge. To be frank, the Obama Administration showed little interest in prosecuting the fight against dangerous drugs. A tsunami built up and has been crashing over the country, bringing death and destruction.

The death toll from opioids alone is higher than we would sustain in a major war. Indeed, in a single year, we lose more people to opioids than we lost during the entire Vietnam War.

Fortunately, this Administration has thrown down the gauntlet. It declared a national emergency, marshalled the Nation’s resources, and is fighting back. We have a robust program to attack the problem of over-prescription and diversion of legal opioids, and we are definitely having an impact. Prescription rates are markedly down. I am confident these successes will accelerate.

I think our attack on illicit opioids is building momentum.  It is going to be a long difficult road, but we are gaining real traction.  As you know, this Administration has sharply increased drug trafficking prosecutions, especially as to opioids.  In 2018 we prosecuted 36 percent more opioid-related offenses than we did in the previous year.  Fentanyl prosecutions were up 200 percent.

Fentanyl and other synthetics are especially deadly. Unless we make progress on fentanyl, the gains we are making elsewhere can be overwhelmed.  A year ago, the Department launched Operation SOS, targeting synthetics in 10 high-impact districts. The first year’s results are promising, and I plan to ratchet up this initiative.

August 12, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Federal district court orders Missouri to improve parole procedures to comply with Miller and Eighth Amendment

As reported in this local article, a "federal court has ordered Missouri to overhaul how it handles the parole process for offenders who committed violent crimes as a minor."  Here is more about a notable ruling:

U.S. District Judge Nanette K. Laughrey issued declaratory and injunctive relief, ordering the Missouri Probation and Parole Board to improve transparency, accountability, and training for youthful offender parole hearings.

“Specifically, the Court found that a number of Defendants’ policies, practices, and customs combine to deprive those serving [juvenile life without parole] sentences of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” the 23-page order states.

The judgment included nearly two dozen procedures — developed through mediation — the state is required to “promptly implement.”...  The Missouri Probation and Parole Board has already adopted some of the procedures, such as allowing note taking during hearings.

The extensive changes come as a result of a class action lawsuit, Brown v. Precythe, filed by the MacArthur Justice Center, targeting the parole board’s alleged failure to comply with state and federal law when it comes to juvenile offenders serving mandatory life without parole sentences.

“This is a significant and long-awaited victory,” said Amy E. Breihan, MacArthur Justice Center’s Missouri director. “Seven years after the Supreme Court invalidated these juvenile [life without parole] sentences, Missouri is finally being held accountable for providing impacted folks a meaningful and realistic opportunity for release.”...

In 2016, SB 590 was passed by the Missouri General Assembly and signed into law.  The bill, in part, allows offenders sentenced as a juvenile to life without parole prior to Aug. 28, 2016, to “submit to the parole board a petition for a review of his or her sentence, regardless of whether the case is final for purposes of appeal, after serving twenty-five years of incarceration on the sentence of life without parole.”

The original lawsuit alleged the parole board treated those individuals “with arbitrary and cruel practices.”  The judge sided with the inmates, ordering an overhaul of how the parole hearings are handled.  “Perhaps the most important part of the order,” said Breihan, “is that it prohibits the Parole Board from denying parole based solely on the seriousness of the offense, and requires them to make decisions through a youth-focused lens. Indeed, these decisions should be based on who these men and women have become over time, not their worst act as children.”

The full 23-page court order can be found at this link.

August 12, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, August 11, 2019

Reviewing recent state capital contractions as feds seek to restart executions

Death-penalty-20190807US Attorney General William Barr's announcement of a change in the federal execution protocol and scheduling of five federal executions (basics here) could give the impression that the death penalty is resurgent in the United States.  But this recent article from The Appeal Political Report provides a useful review and reminder that the death penalty continued to be contracting in the states.  The article is headlined "With New Law, Oregon Joins Wave of States Restricting or Halting the Death Penalty," and here are excerpts:

Movement is building against the death penalty at the state level, even as the Trump Administration calls for expanding its use and prepares to restart federal executions.

Oregon became the latest state to act against it last week when Governor Kate Brown signed Senate Bill 1013, which considerably narrows the range of capital offenses.

The reform does not abolish the death penalty, which is inscribed in the state Constitution and so can only be eliminated by referendum.  But the legislature circumvented that requirement by redefining “aggravated murder” (the only category eligible for the death penalty in Oregon) and removing most circumstances that currently warrant the “aggravated” moniker.

“The concept of this bill is to close the front door to the death penalty,” said Lynn Strand, the chairperson of Oregonians for Alternatives to the Death Penalty (OADP). Strand expects the law to be “quite effective” at stopping new death sentences and she called it “a giant step.”

“But it does not address what you do with the back door,” she added.  Indeed SB 1013 is not retroactive. It leaves 30 people on death row, largely for crimes that are not capital offenses under the new law, according to Jeffrey Ellis, an attorney with the Oregon Capital Resource Counsel....

The governor has the authority to commute existing death sentences. In explaining her support for SB 1013, Brown called the death penalty “immoral” and “dysfunctional.”  These are adjectives that apply to past sentences as much as to new ones. But she has yet to publicly signal whether she is considering commutations. Her office did not answer a request for comment....

Oregon does have a moratorium on executions. It was imposed by John Kitzhaber, Brown’s predecessor.  Brown has maintained it in place since taking office in 2015. The moratorium is important, but it is insufficient to end the death penalty’s moral and financial costs, and to remove its threat from a prosecutor’s arsenal of tools.  It could also be lifted by a future governor. “The moratorium stops executions,” Robert Dunham, executive director of the Death Penalty Information Center, told the Sacramanto Bee about California’s in July. “It doesn’t stop the machinery of death from moving forward.”

Oregon law specified 19 circumstances that label a murder “aggravated.” SB 1013 shrinks that list to the murder of a child under 14, a murder committed by someone who is already in prison, a terrorist act that kills more than two people, and the murder of law enforcement officers. In addition, jurors will no longer be asked to judge a person’s “future dangerousness” when weighing a death sentence.

These changes are leading prosecutors to drop their plan to seek the death penalty in a criminal case underway in Malheur County. Some prosecutors, such as District Attorney Patty Perlow of populous Lane County (home of Eugene), fought the bill....

Oregon is the fifth state to restrict, halt, or abolish capital punishment over the last 10 months.  In October, Washington State’s Supreme Court abolished it and also commuted the sentences of all eight people on death row.  Then, California Governor Gavin Newsom imposed a moratorium on executions in March; the New Hampshire legislature abolished the death penalty in May; and the New Mexico Supreme Court commuted the sentences of the only two people on death row there in June, a decade after the state abolished the death penalty for new crimes.

New Mexico’s decision leaves New Hampshire as the only state to abolish the death penalty but still have someone on death row.  Death penalty opponents are now actively planning their next moves in Colorado, Pennsylvania, and Wyoming.  At the county level, people have successfully run for prosecutor on a promise to not seek the death penalty, and capital punishment looms large in other local elections this fall.

August 11, 2019 in Death Penalty Reforms, Who Sentences | Permalink | Comments (5)

Saturday, August 10, 2019

Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing

A helpful colleague made sure I did not miss the notable Fifth Circuit opinion on FIRST STEP Act resentencing this past week in US v. Hegwood, No. 19-40117 (5th Cir. Aug 8, 2019) (available here). Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, but the language of that section left unclear whether a sentencing court is to conduct a full resentencing under the Act or a more limited sentencing modification for eligible offenders. District courts have been dealing with this resentencing question in various ways, and the Fifth Circuit panel ruling in Hegwood may be the first to address the issue. Here is its key passages:

This appeal concerns the First Step Act, in which Congress permitted a sentencing court to “impose a reduced sentence as if . . . the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” The issue is whether district courts are authorized to conduct a plenary resentencing, which would include recalculating the Sentencing Guidelines range as if the defendant were being sentenced for the first time under present law, or whether courts are limited to reductions resulting from the Fair Sentencing Act. Concluding that the First Step Act does not allow plenary resentencing, we AFFIRM....

Hegwood argues that a new sentence under the First Step Act requires a Guidelines calculation to be made that is correct as of the time of the new sentencing, and Section 3553(a) factors are to be applied anew....

It is clear that the First Step Act grants a district judge limited authority to consider reducing a sentence previously imposed. The calculations that had earlier been made under the Sentencing Guidelines are adjusted “as if” the lower drug offense sentences were in effect at the time of the commission of the offense. That is the only explicit basis stated for a change in the sentencing. In statutory construction, the expression of one thing generally excludes another. TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001).  The express backdating only of Sections 2 and 3 of the Fair Sentencing Act of 2010 — saying the new sentencing will be conducted “as if” those two sections were in effect “at the time the covered offense was committed” — supports that Congress did not intend that other changes were to be made as if they too were in effect at the time of the offense.

These limits make the First Step Act similar to Section 3582(c), which opens the door only slightly for modification of previously imposed sentences for certain specified reasons, including the lowering by the Sentencing Commission of the sentencing range that was in effect for the defendant at the time of initial sentencing. 18 U.S.C. § 3582(c)(2).  The Supreme Court held that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826 (2010).

We do not see any conflict in this interpretation of Section 404 of the First Step Act with the provisions of 18 U.S.C. §§ 3582 and 3553. The district court under Section 3582(a) is only required to consider the Section 3553(a) factors “to the extent that they are applicable.” The government, relying on the fact that the First Step Act gives the court discretion whether to reduce a sentence, argues that the ordinary Section 3553(a) considerations apply to determine whether to reduce the defendant’s sentence.

The mechanics of First Step Act sentencing are these.  The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act.  The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception.  The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.

As a matter of statutory interpretation, I can understand why the Fifth Circuit is inclined in Hegwood to approach FSA retroactivity as only a modest sentence modification proceeding.  But as a matter of sound policy and practice, I think it makes more sense to approach these cases as full resentencings with all subsequent changes in both  applicable sentencing laws and relevant sentencing facts available for, an integral to, the judge's resentencing decision.  Otherwise, as seems to be the case in Hegwood, a defendant already subject to the undue harshness of the old 100-1 crack mandatory minimums is still forced to endure the undue harshness of other problems with the guidelines that have been fixed since his original sentencing.

I am hopeful, but not optimistic, that only a small number of defendants will be adversely impacted by the Hegwood approach to resentencing. And this case provides yet another example of how implementation of statutory sentencing reform can often be just as important for some defendants as the reform itself.

August 10, 2019 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, August 09, 2019

"Prisons are packed because prosecutors are coercing plea deals. And, yes, it's totally legal."

The title of this post is the title of this new commentary authored by Clark Neily, and it has this subheading: "American prosecutors are equipped with a fearsome array of tools they can and do use to discourage people from exercising their right to a jury trial." I recommend the full piece and here are excerpts:

America is the most prosperous country in the history of the world.  We excel at innovation and mass production — and nowhere is that more true today than our criminal justice system, which features a streamlined process for transforming millions of suspects into convicted criminals quickly, efficiently and without the hassle of a constitutionally prescribed jury trial.

It’s called coercive plea bargaining, and it’s the secret sauce that helps us maintain the world’s highest incarceration rate.

According to a recent study from the Pew Research Center, of the roughly 80,000 federal prosecutions initiated in 2018, just two percent went to trial.  More than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent.  Why are people so eager to confess their guilt instead of challenging the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury?

The answer is simple and stark: They’re being coerced.

Though physical torture remains off limits, American prosecutors are equipped with a fearsome array of tools they can use to extract confessions and discourage people from exercising their right to a jury trial.  These tools include charge-stacking (charging more or more serious crimes than the conduct really merits), legislatively-ordered mandatory-minimum sentences, pretrial detention with unaffordable bail, threats to investigate and indict friends or family members, and the so-called trial penalty — what the National Association of Criminal Defense Lawyers calls the “substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial.”...

The framers of the U.S. Constitution put citizen participation at the very heart of our criminal justice system in the form of jury trials.  With coercive plea bargaining, prosecutors have ripped that heart right out of that system and made sure that ordinary citizens have almost nothing to do with the administration of criminal justice in America.

Our system wasn’t designed to function that way, and growing public disillusionment suggests that it won’t — not for much longer, anyway.

August 9, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)