Monday, January 27, 2020

Sixth Circuit panel declares one-day prison sentence (plus 10 years on supervised release) for large child porn possession substantively unreasonable

In a series of rulings in recent years, most notably United States v. Bistline, the Sixth Circuit has found sentences for child porn possession that lacked some significant prison time to be unreasonable.  Another such ruling was handed down this past on Friday in United States v. Demma, No. 18-4143 (6th Cir. Jan 24, 2020) (available here).  The 15-page panel ruling, authored by Judge Gilman, gets started this way: "This is yet another case raising the issue of whether a one-day sentence for a defendant convicted of possessing child pornography is reasonable. For the reasons set forth below, we determine that it is not."  The full opinion is worth a read, and here are some key passages:

At the sentencing hearing, the district court focused almost entirely on Demma’s individual characteristics in deciding not to impose a term of incarceration. It relied, in particular, on the testimony of Dr. Peterson and Dr. Tennenbaum, both of whom opined that Demma’s use of child pornography was directly caused by his service in the military and his resulting PTSD.

To be sure, the district court did not err by recognizing Demma’s military service and PTSD diagnosis under § 3553(a)(1) as considerations relevant to his sentence.  See United States v. Reilly, 662 F.3d 754, 760 (6th Cir. 2011) (explaining that the defendant’s military service and lack of criminal history were “permissible considerations in the ‘variance’ determination under 18 U.S.C. § 3553(a)”).  But the court in the present case gave these considerations unreasonable weight in deciding to vary downwards to an essentially noncustodial sentence....

Moreover, in focusing on the role of Demma’s military service as purportedly causing his crimes, the district court cast Demma more as the victim than the perpetrator, stating that Demma’s crimes were “the result of his voluntary service to his community and his country” and “an unintended consequence” of his decision to serve in the Army.  This court has explained, however, that “[k]nowing possession of child pornography . . . is not a crime that happens to a defendant.”  Bistline I, 665 F.3d 758, 765 (6th Cir. 2012)....

Our overall conclusion is that, based on the totality of the circumstances, the district court weighed some factors under § 3553(a) too heavily and gave insufficient weight to others in determining Demma’s sentence.  This is not to say that some other defendant possessing far fewer and less offensive images over a much shorter period of time might justify such an extreme downward variance, but that is not Demma’s case.  As this court noted in United States v. Elmore, 743 F.3d 1068 (6th Cir. 2014), a United States Sentencing Commission report states that “fully 96.6 percent of first-time child-pornography-possession convictions led to at least some prison time.” Id. at 1076 (emphasis in original).  We find no basis in the record for Demma to not become part of this overwhelming statistic.  

January 27, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Friday, January 24, 2020

Reversing state precedent, Florida Supreme Court cuts back on reach of SCOTUS Sixth Amendment capital ruling in Hurst

A little more than four years ago, the US Supreme Court declared unconstitutional Florida's death penalty procedure in Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2016) (available here), and that ruling raised a host of tough questions about what Hurst meant for roughly 400 persons then on death row in Florida.  I have not been able to follow closely all the Florida state rulings seeking to apply Hurst over the last four years, but a helpful reader made sure I did not miss the latest consequential ruling from the Florida Supreme Court, Florida v. Poole, No. SC18-245 (Fla. Jan. 23, 2020) (available here), which was handed down yesterday.  This local press article, headlined "Florida Supreme Court says unanimous jury not needed for death penalty in major reversal," provides some of the details and context:

In a stunning reversal of a previous decision, the Florida Supreme Court ruled Thursday that a unanimous jury should not be required to sentence someone to death. Federal law, and every state that has the death penalty except Alabama, require unanimous juries for the death penalty, rather than a simple majority.

Florida law used to only require that a majority of the jury make a recommendation to the judge on whether to sentence a defendant to die. The judge then issues a final ruling based on that recommendation. But after a decision by the Florida Supreme Court in 2016 struck down that model in a case called Hurst v. State, the Legislature changed its law to mandate a unanimous jury.

But Thursday’s ruling opens the door for state lawmakers, if they wish, to return Florida to one of the few states that don’t require a unanimous jury to impose the death penalty. “It is no small matter for one Court to conclude that a predecessor Court has clearly erred,” the majority opinion of four justices states. But, “in this case we cannot escape the conclusion that ... our Court in Hurst v. State got it wrong.”

In the majority opinion, the justices wrote that their own court’s prior decision was made in error, because the justices at the time had misinterpreted a U.S. Supreme Court ruling that found Florida’s death sentencing process unconstitutional.

The U.S. Supreme Court’s ruling did not, in fact, mean that a jury had to unanimously sentence a person to death, they wrote. Rather, that court only said that a jury had to unanimously find that a defendant was eligible for the death penalty, because of so-called “aggravating factors,” such as if the crime was “especially heinous, atrocious, or cruel” or was committed against a child under 12. But the final decision of whether a defendant should be sentenced to die does not require unanimity, Florida’s highest court said.

What does this decision mean? For one, it means the man, Mark Anthony Poole, who brought this case to the Supreme Court after he was sentenced to death with only the majority of a jury, will once again get the death penalty, after his sentence was previously vacated. He has been convicted of first degree murder, attempted first degree murder, sexual battery, armed burglary and armed robbery.

There are 157 death row cases where the person was eligible for a new sentence under the 2016 ruling. Since then, those cases have been going through various stages of re-sentencing, according to the Washington-based Death Penalty Information Center....

In a blistering dissent, Justice Jorge Labarga said the decision by the majority will return Florida to its status as “an absolute outlier." He was the lone dissent. There are currently only five justices on Florida’s Supreme Court, because two of Gov. Ron DeSantis’ three appointments were recently promoted to federal courts.

“In the strongest possible terms, I dissent,” Labarga wrote. “Death is indeed different. When the government metes out the ultimate sanction, it must do so narrowly and in response to the most aggravated and least mitigated of murders. ... this Court has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida."

Labarga also noted that Florida “holds the shameful national title as the state with the most death row exonerations” — all the more reason to keep the unanimous jury safeguard in place. Twenty-nine people on death row in Florida have been exonerated since 1973, according to the Death Penalty Information Center.

Responding to Labarga’s dissent, Justice Alan Lawson wrote that this decision does not change Florida’s state law, which requires the unanimous jury. “The majority today decides constitutional questions, not political ones,” Lawson wrote. “If the Florida Legislature considers changing (the law) to eliminate the requirement for a unanimous jury recommendation before a sentence of death can be imposed, the fact that this legislative change would make Florida an ‘outlier’ will surely be considered in the ensuing political debate.”

I presume the capital defendant here, Anthony Poole, will appeal this ruling to the US Supreme Court.  Notably, SCOTUS is actively considering jury unanimity issues this term in Ramos v. Louisiana and capital sentencing procedure in McKinney v. Arizona.  So, stay tuned.

January 24, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Prez candidate Tom Steyer releases his plan for "Transforming Criminal Justice"

Back in the fall, it seemed that nearly every week we would see a big new criminal justice reform plan coming from one of the Democratic candidates for President (and I have collected a lot of the posts with this plans below).  But, of course, as the first set of votes approach, we have seen more of these candidates dropping out than proposing big plan.  And yet, excitingly, this press release details that there is now at least one more new reform plan under the heading, "Tom Steyer Will End Cash Bail and School-to-Prison Pipeline: New criminal justice plan will end mass incarceration by focusing on prevention and rehabilitation."  Here is how the press release starts:

Presidential candidate Tom Steyer unveiled a plan to reform the criminal justice system to end mass incarceration breaking the school-to-prison pipeline and fixing the pay-to-play justice system. Steyer’s plan pursues aggressive reforms including doubling the juvenile justice program to keep kids out of prison, and ending the prison industrial complex by closing private prisons, abolishing cash bail and court fees. The plan would reduce the number of individuals entering the criminal justice system, prioritize rehabilitative efforts behind bars, and support individuals when they return to society.  

The full plan runs 17(!) detailed pages, with major section headings that include "Juvenile Justice," "Police Reform," "A Progressive Department of Justice," "Equal Access to Justice in Court," "End Cash Bail," "Release More Rehabilitated People," and "Ensure Returning Citizens Have A Second Chance." There are elements under all these heading that should be of interest to sentencing fans, though the sections on "Ending the War on Drugs" and "Sentencing Reform" and "Improve Prison Conditions" may be of special interest. Here are just a few items from these sections of the Steyer plan:

  • End mandatory minimums and expand judicial discretion for non-violent drug offenders.  Mandatory minimum sentences have played a significant role in increasing mass incarceration by reducing the discretion that a judge has in sentencing an individual for a non-violent drug offense based upon their past record. Punishments should be proportional to the crime. Mandatory minimums reinforce racial prejudice in the system and do not increase public safety.  Tom supports the Smarter Sentencing Act, a bill that reduces mandatory minimum sentences for certain non-violent drug offenders and increases judicial review....

  • Legalize marijuana use and expunge past records.  Policing marijuana use has led to too many unfair incarcerations and predominantly impacted communities of color. Tom endorses the MORE Act, a bill that will deschedule marijuana at the federal level and let states set their own policies.  This bill will also expunge past records and provide individuals who served time for marijuana convictions the opportunity to participate in the legal market, including access to training programs....

  • Eliminate mandatory minimums for non-violent crimes.  As president, Tom will work to eliminate mandatory minimums for all federal non-violent crimes and allow judges more discretion for more serious crimes. And because most people are incarcerated at the state and local level, his administration will incentivize states to eliminate mandatory minimums as well.  Mandatory minimums have been responsible for much of the increase in incarceration.  Tom endorses the Justice Safety Valve Act, a bill that allows judges to use discretion and depart from mandatory minimums when appropriate....

  • Revitalize and reform the Sentencing Commission. T om will fully staff the Sentencing Commission with appointees who will strive for a more progressive criminal justice system.  He will direct the Commission to conduct additional studies on mass incarceration and recidivism and update sentencing guidelines to reflect those priorities.  Tom will double the Commission’s funding so it can offer technical assistance to states.

  • Eliminate the death penalty.  Tom believes it is a moral, practical, and long overdue imperative to end the death penalty.  He believes these individuals should instead serve life sentences without probation or parole. Tom will abolish the death penalty at the federal level and encourage states to do the same.

A few of many prior related posts:

January 24, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Thursday, January 23, 2020

"Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back"

Fentanylgraphic_map_0The title of this post is the title of this notable new report from the Drug Policy Alliance. Here is part of its executive summary:

The U.S. is in the throes of a deadly overdose crisis that claimed almost 70,000 lives in 2018. Of those, around 30,000 deaths involved synthetic opioids like fentanyl.  Policymakers have responded to the overdose crisis with a rhetorical emphasis on “treatment instead of incarceration,” leading journalists to comment that we are in the midst of a “gentler war on drugs.”  However, despite a change in discourse, draconian policies have persisted and in many cases been expanded.  This is exemplified by many lawmakers’ reaction to fentanyl and other analog drugs, both on the state and federal level.

Since 2011, 45 states have proposed legislation to increase penalties for fentanyl while 39 states and Washington DC have passed or enacted such legislation.  At this moment, some members of Congress are working to codify harsher penalties by placing fentanyl analogs permanently into Schedule 1 in both the Senate and the House with proposed legislation like the Stopping Overdoses of Fentanyl Analogues Act of 2019 (SOFA) and the FIGHT Act.  In his annual State of the State 2020 address this month, New York’s Governor Cuomo proposed banning fentanyl analogs and expanding access to medication assisted treatment in the very same sentence.

Legislators have dusted off the drug war playbook and proposed a variety of new punitive measures including new mandatory minimum sentences, homicide charges, involuntary commitment, expanded powers for prosecutors and more.  These efforts repeat the mistakes that epitomize the failed war on drugs, while undermining efforts to reform our criminal justice system and pursue a public health approach to drug use.  Indeed, such proposals risk compounding the overdose crisis.

Punitive approaches to fentanyl are particularly disturbing because they run counter to recent policy shifts that have been largely bipartisan in nature. One recent policy shift is a growing promotion of public health approaches to drug use.  There is mounting support for a number of policies and interventions -- such as increasing access to voluntary, medication-assisted treatment and naloxoneb -- as more effective responses to the current overdose crisis than the revolving door of jail or prison.  Another notable policy shift is the long-overdue recognition that decades of harsh and racially-biased drug enforcement have had devastating consequences on individuals and communities, while wasting billions of taxpayer dollars.  A recent analysis of federal fentanyl sentencing revealed that 75% of all individuals sentenced for fentanyl trafficking were people of color, suggesting that fentanyl enforcement already mirrors other disparate drug enforcement.

The criminal justice reform movement has made tremendous progress on reducing drug sentences at the local, state and federal levels.  The trend toward tougher penalties for fentanyl presents a threat to the reform movement, undercutting initiatives to reduce mass criminalization and incarceration.  To date, none of the states that enacted harsher penalties for fentanyl, nor the federal government, have demonstrated a reduction in fentanyl-involved deaths because of these new laws.

In this context, the criminal justice reform movement must do more to combat punitive proposals, putting as much energy into challenging the exceptionalism around fentanyl as other efforts to reduce sentences.  This paper aims to shine a light on the danger that harsh fentanyl penalties present to the criminal justice reform movement and efforts to end the war on drugs.

January 23, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, January 22, 2020

US Sentencing Commission releases new report on "Inter-District Differences in Federal Sentencing Practices"

As reported via this USSC webpage, the US Sentencing Commission has this morning released this big new report under the full title "Inter-District Differences in Federal Sentencing Practices: Sentencing Practices Across Districts from 2005 - 2017." Here is a summary and key finding from the USSC's webpage:

This report is the third in a series of reports. It examines variations in sentencing practices—and corresponding variations in sentencing outcomes—across federal districts since the Supreme Court’s 2005 decision in United States v. Booker.

The Commission’s ongoing analysis in this area directly relates to a key goal of the Sentencing Reform Act of 1984: reducing unwarranted sentencing disparities that existed in the federal judicial system. In particular, the Act was the result of a widespread bipartisan concern that such disparities existed both regionally (e.g., differences among the districts) and within the same courthouse. Having analyzed the differences within the same courthouse in its Intra-City Report, the Commission now turns in this report to examining regional differences since Booker....

Key Findings

While the extent of differences in sentencing practices vary depending on the specific primary guideline, the overarching trends indicate that, consistent with the findings of the Commission’s 2012 Booker Report, sentencing outcomes continue to depend at least in part upon the district in which the defendant is sentenced. In particular, the Commission finds that:

  • Variations in sentencing practices across districts increased in the wake of the Supreme Court’s 2005 decision in Booker.  These inter-district sentencing differences have persisted in the 13 years after Booker and six years after the Commission’s 2012 analysis.

  • Sentencing differences increased for each of the four major offense types analyzed (fraud, drug trafficking, firearms related offenses, and illegal reentry) during the Gall Period.  This trend continued for some, but not all, of the four offense types in the six years following the last period analyzed in the Commission’s 2012 Booker Report.

  • Guideline amendments intended to promote uniformity by addressing judicial concerns regarding severity have had an inconsistent impact on inter-district disparity.  Specifically, despite multiple significant revisions to the drug trafficking guideline, including the two-level reduction of the base offense level for all drugs, districts increasingly diverged in their sentencing practices for drug trafficking offenders.  However, the comprehensive amendment to the illegal reentry guideline contributed to increasing uniformity in sentencing practices in the Post-Report Period.

  • Certain districts have consistently sentenced more — or less — severely in relation to the guideline minimums than other districts, both over time and across offense type.

I am already looking forward to finding time to review and assess this latest big report from the USSC. But I cannot help but note at the outset that detailed data work which focuses almost exclusively on sentencing differences without any detailed discussions of sentencing severity or sentencing efficacy seems largely out of sync with the current political and policy criminal justice concerns expressed by both public officials and advocates.

Prior related post:

January 22, 2020 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, January 21, 2020

Former AG (and now Senate candidate) Jeff Sessions laments some of the sentence reductions in the FIRST STEP Act

In large part due to Prez Trump's support for the FIRST STEP Act, even the usual suspects in the "tough-and-tougher" crowd are disinclined to be too critical of this law.  But, given that former Attorney General Jeff Sessions spent much of his time as AG seeking to block the Act from getting passed with any sentencing reform provisions, I suppose I was not surprised to see this local press piece headlined "Sessions ‘uneasy’ about parts of Trump’s criminal justice reform bill — ‘Some of the sentence reductions went too far’."  Here are the details:

Former U.S. Attorney General Jeff Sessions appeared in Montgomery on Monday, where he discussed the criminal justice reform bill President Donald Trump has repeatedly championed. Sessions was asked by Yellowhammer News what he thought of the bill. At first, the candidate for his old seat in the U.S. Senate said he supported parts of the bill, but he also told the assembled reporters, “I did think some of the sentence reductions probably went too far.”

“I was uneasy about that,” he added on the question of some of the sentencing reforms.

Sessions, who was speaking at a press conference flanked by law enforcement officials who had just endorsed him, praised some aspects of the bill that is formally known as the First Step Act. “I supported much in that bill, particularly funds for education pre-release, preparation for people to be more successful when they leave,” Sessions remarked.

“There were some reductions in sentences that were legitimate. I previously supported two bills that reduced crack-cocaine sentences,” Sessions intoned. Sessions’ support for crack-cocaine sentence reduction presumably refers to his vote in favor of bills like the Obama-era Fair Sentencing Act that alleviated disparities in the penalty for possessing crack-cocaine and powder cocaine. “People shouldn’t serve any more time than necessary,” Sessions told the audience.

One of the statistics Sessions cited as relevant was the pre-existing drop in federal prison populations from 2013-2018, the year the bill was passed by Congress. In 2013, the federal government held 219,298 incarcerated people, and by 2018, it had reduced that number to 179,898, an 18% reduction in the five years before the First Step Act became law.

In just a few months after the First Step Act was made law, the federal government released an additional 3,100 inmates due to a change in how good behavior is calculated....

“I hope we don’t find that to be true,” Sessions said of his suspicion that the sentencing reforms went too far. “We’ll see how it plays out.”

Since it sounds like Sessions is here endorsing the retroactive application of lower crack sentences, I am not entirely sure exactly what he thinks were the sentence reductions that "probably went too far."   Perhaps Sessions has in mind the increased good-time credits, which impacted tens of thousands of current federal prisoners, but they mostly amount to a few week or months  off for most defendants.  Perhaps Sessions is referencing the reductions in a few mandatory minimums, the reduced impact of 924(c) stacking, and the expanded MM safety-valve (detailed in this USSC document), but there are also all pretty weak sentencing-reform tea, with only the expanded safety-valve impacting more than a few dozen cases each year.

January 21, 2020 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

Monday, January 20, 2020

SCOTUS to contemplate yet another level of ACCA jurisprudential hell with Shular oral argument

In this post a few years ago, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".   That post and that question was prompted by the headaches I get when trying to make sense of the the modern federal court jurisprudence over application of the Armed Career Criminal Act as it relates to whether a defendant's prior conviction qualities as a "violent felony."  But the US Supreme Court is due to hear oral argument tomorrow in Shular v. United States wherein the petitioner is presenting this question:

Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act.

Over at SCOTUSblog in this post titled "Argument preview: Category is: the categorical approach," Leah Litman sorts through the arguments made by the petitioner and the government.  Here are parts of the start and the end of her intricate discussion:

Most of the Supreme Court’s ACCA cases address the meaning of ACCA’s various definitions of “violent felony.”  But Shular’s case concerns the meaning of an ACCA provision that defines “serious drug offense.”  In Section 924(e)(2)(A)(ii), Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.”

The probation office determined that Shular’s prior Florida convictions were serious drug offenses and recommended that Shular be sentenced under the ACCA.  Shular objected, arguing that Congress defined “serious drug offense” as a series of generic offenses (manufacturing, distributing or possessing with intent) that do not match Florida’s drug offense.  (Specifically, Shular argued that the generic definitions of the drug offenses contain mens rea, or criminal intent, elements, while Florida’s drug laws do not.)....

There is a good amount of text and structure for the Supreme Court to work with in this case.  But the court may be interested in the implications of both sides’ interpretations. Shular is offering the court a tried-and-true approach that has come under fire in recent years.  The government is asking the court to venture into new terrain, but also does not want the court to consider some of the harder questions and greyer areas that might result from the government’s approach.  Oral argument could allow the justices to test out how the government’s proposed interpretation might work.

January 20, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Recalling on-going work of the US Sentencing Commission as I continue to troll for "Reflections on Booker at 15"

In this post last weekend, I noted (1) that it is now a full 15 years since the Supreme Court (not-so-)radically transformed the federal sentencing system through its ruling in Booker v. United States, and (2) that it seems I may be one of the few to now note (or even realize) that we have passed another big milestone in the history of the federal sentencing system.  Though I have not yet received any "Reflections on Booker at 15" in response to my prior post, a reliable source reminded me that the US Sentencing Commission has an on-going series of reports that serve to update the system-wide Booker analysis that the USSC completed in its reports to Congress in 2006 and 2012.

To aid review and reflections, here are links to the USSC's 2006 and 2012 Booker reports and to its notable follow-up work from the last few years:

  1. Report on the Impact of United States v. Booker on Federal Sentencing (March 2006).

  2. Report on the Continuing Impact of United States v. Booker on Federal Sentencing (December 2012)

  3. Demographic Differences in Sentencing: An Update of the 2012 Booker Report  (November 2017)

  4. Intra-City Differences in Federal Sentencing Practices (January 2019)

The same reliable source told me that the Commission is nearing completion on another post-Booker report to be released shortly (and this report will also outline other on-going USSC work in this arena).  If this new Commission report ends up having some provocative findings, perhaps there will be some notable "Booker at 15" talk in the offing.

Prior related post:

January 20, 2020 in Booker and Fanfan Commentary, Booker in district courts, Who Sentences | Permalink | Comments (1)

Sunday, January 19, 2020

The Prosecutors and Politics Project releases "National Study of Prosecutor Elections"

The Prosecutors and Politics Project at the University of North Carolina School of Law this past week released this massive new report titled simply "National Study of Prosecutor Elections." Here is the start of the 350+-page report's "Executive Summary":

American prosecutors wield significant power in the criminal justice system.  They must decide when to file charges, which crimes to prioritize, and how lenient or harsh to be in plea bargaining.  Prosecutors are entrusted with this power, in part, because they are accountable to voters.

In most states, that accountability comes in the form of direct elections.  Forty-five states elect prosecutors on the local level.  These local elections provide a powerful check on the power that prosecutors wield — at least in theory. But how does that check operate in practice?  Put differently, how much of a choice do voters have about who will make important criminal justice decisions in their communities?

This report presents the results of a nationwide study of prosecutor elections. The first of its kind, the study gathered data from every jurisdiction that elects its local prosecutors in a recent election cycle.  The study showed great variation in elections across the country.  Some elections gave voters choices in both primary and general elections to choose their local prosecutor.  But other elections were entirely uncontested. And some elections did not even have a single candidate on the ballot.

Whether an election gave voters a choice seems to depend on two different factors.  The first of those factors is the population in the district where the election was held. Communities with large populations tended to have more than one candidate in their elections, while communities with small populations tended to have uncontested elections.

Beginning in February 2018, the Prosecutors and Politics Project began collecting information about the most recent election cycle in each state that elects its local prosecutor. For most states, that meant we collected data from the 2014 or 2016 election cycle.  But in some states the most recent election had occurred as far back as 2012 and as recently as 2017.  In total, we collected election results for 2,318 districts across 45 states.

January 19, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Thursday, January 16, 2020

Georgia parole board commutes death sentences shortly before today's scheduled execution

As reported in this AP piece, "Georgia’s parole board on Thursday spared the life of a prisoner just hours ahead of his scheduled execution, commuting his sentence to life without the possibility of parole."  Here is more:

Jimmy Fletcher Meders, 58, had been scheduled to receive a lethal injection at 7 p.m. Thursday at the state prison in Jackson. But the State Board of Pardons and Paroles released its decision granting him clemency around 1 p.m.

Meders is only the sixth Georgia death row inmate to have a sentence commuted by the parole board since 2002. The last to have a sentence commuted was Tommy Lee Waldrip, who was spared execution on July 9, 2014....

Meders was convicted of murder and sentenced to die for the October 1987 killing of convenience store clerk Don Anderson in coastal Glynn County.

The parole board, which is the only authority in Georgia that can commute a death sentence, held a closed-door clemency hearing for Meders on Wednesday.  According to the commutation order, the board considered Meders' lack of a criminal record prior to Anderson's killing, the fact that he had only one minor infraction during 30 years on death row, the jury's desire during deliberations to impose a life without parole sentence and the support for clemency from the jurors who are still living....

Meders was sentenced to death in 1989, four years before a change in the law that allowed a sentence of life without the possibility of parole for capital cases. In the clemency application submitted to the parole board, his lawyers argued that it was clear that the jury wanted that option.  The application cited a note the jurors sent to the judge after 20 minutes of deliberations: “If the Jury recommends that the accused be sentence to life imprisonment, can the Jury recommend that the sentence be carried out without Parole??”

Meders' lawyers also gathered sworn statements from the six jurors who are still alive and able to remember the deliberations.  They all said they would have chosen life without parole if it had been an option and supported clemency for Meders.

Additionally, an analysis by Meders' attorneys of Georgia cases for which the death penalty was sought between 2008 and 2018 shows that in cases like his, with a single victim and few aggravating factors, juries don't choose the death penalty today and prosecutors rarely seek it in such cases.

The official commutation is available at this link.

January 16, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Defender General"

The title of this post is the title of this notable new article authored by Daniel Epps and William Ortman now available via SSRN. Here is its abstract:

The United States needs a Defender General — a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States.  The Supreme Court is effectively our nation’s chief regulator of criminal justice.  But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages.  As compared to counsel for defendants, government lawyers — and particularly those from the U.S. Solicitor General’s office — tend to be more experienced advocates who have more credibility with the Court.  Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients — even when they conflict with the interests of criminal defendants as a whole.  The prosecution’s advantages likely distort the law on the margins.

If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice.  In some cases — where the interests of a particular defendant and those of defendants as a class align — the Defender General would appear as counsel for a defendant.  In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits.  In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

I have lots of (mostly positive) thoughts about the general idea of a Defender General. But I want to find time to read this article before I start opining on the general topic. But that should not stop others!

January 16, 2020 in Recommended reading, Who Sentences | Permalink | Comments (1)

Wednesday, January 15, 2020

Dispute over legality of new federal execution protocol up for argument in DC Circuit

As noted in this post, roughly six weeks ago the US Supreme Court refused the Justice Department's request to vacate a district court stay of scheduled federal executions.  That stay, as reported here, was based on the district court's conclusion that DOJ's new execution protocol "exceeds statutory authority."  Notably, the short SCOTUS order upholding the stay indicated that the Court expected the Court of Appeals to review the merits of the stay "with appropriate dispatch."  The DC Circuit's dispatch, as reported in this Bloomberg Law article, has led to oral argument today in front of a three-judge panel.  Here are the details:

The Trump administration’s quest to resume federal executions faces its latest hurdle on Wednesday when an appellate panel hears arguments in a case that was at the U.S. Supreme Court previously and soon may be headed back there.

Though the broader political themes that accompany capital punishment lurk in the background of the dispute, the three judge panel at the U.S. Court of Appeals for the District of Columbia Circuit is tasked with looking at a narrower issue: essentially whether any difference between the words “method” and “manner” is enough to derail several executions for now....

Judges hearing the case are Bill Clinton appointee David Tatel and Trump appointees Gregory Katsas and Neomi Rao. Rao replaced Supreme Court Justice Brett Kavanaugh on the D.C. Circuit.

They’re reviewing the Nov. 20 ruling from Washington district judge Tanya S. Chutkan, who granted a preliminary injunction to federal death row prisoners Alfred Bourgeois, Daniel Lewis Lee, Wesley Ira Purkey, and Dustin Lee Honken. The uniform lethal injection protocol announced by the Department of Justice last year to carry out all federal executions likely violates the Federal Death Penalty Act, Chutkan found....

The death penalty act says that the U.S. marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.” The act “provides no exceptions to this rule and does not contemplate the establishment of a separate federal execution procedure,” Chutkan said in effectively blocking the executions.

The statute’s use of the word “manner” includes not just execution method but also execution procedure, she said. The judge rejected the government’s argument that the law only gave the states the authority to decide the “method” of execution, like whether to use lethal injection or an alternative. But “manner” in the context of the federal act means “the method of execution,” the Justice Department said in a brief filed Jan. 13.

What’s more, the government says, Chutkan’s and the prisoners’ reading of the act leads to absurd results, like potentially causing the federal government to use less humane methods of execution than those used in some states, and giving states the power to “make it impossible to implement some federal death sentences.”

After Chutkan’s November injunction, the Justice Department appealed quickly to the D.C. Circuit, which declined to overturn it. The government then appealed that denial to the Supreme Court, which upheld the D.C. Circuit on Dec. 6 but sent the case back down for further review.

If the case is appealed back to the Supreme Court by whichever side loses in the D.C. Circuit this time, at least three of the nine justices are poised to side with the government. Samuel Alito, Neil Gorsuch, and Kavanaugh issued a statement accompanying last month’s order, saying that the government “has shown that it is very likely to prevail when this question is ultimately decided.”

The D.C. Circuit’s decision could come relatively quickly after Wednesday’s argument. The high court said in its order that it expects the appeals court to “render its decision with appropriate dispatch,” and the separate statement from Alito, Gorsuch, and Kavanaugh said there’s no reason the appeals court can’t rule within the next 60 days, which is less than a month from now.

Prior related posts:

January 15, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, January 14, 2020

"Who challenges disparities in capital punishment?: An analysis of state legislative floor debates on death penalty reform"

the title of this post is the title of this new article just published in the Journal of Ethnicity in Criminal Justice and authored by David Niven and Ellen Donnelly.  Here is its abstract:

In McCleskey v. Kemp, the Supreme Court tasked legislatures, rather than courts, with redressing racial disparities in capital punishment.  Elected officials must then decide to amend disparate death penalty procedures.  Analyzing floor debates, we explore why legislators make arguments for racial disparity or fairness in deliberations of death penalty reforms.  Results suggest views on race and the death penalty are products of partisanship, constituency composition, and the race/ethnicity of legislators, with the interaction of these factors being most predictive of argumentation.  Findings illuminate who leads discourse on fairness in criminal justice and the limits of legislative responses to racial injustice.

January 14, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Splitting with other state courts, Georgia Supreme Court upholds use of preponderance standard in LWOP sentencing determination for juve murderer

Yesterday the Georgia Supreme Court rejected a procedural attack on a life without parole sentence given to a 17-year-old murderer and created an interesting little split on the application of Miller and Montgomery in the process.  The unanimous ruling in White v. Georgia, No. S19A1004 (Ga. Jan. 13, 2020) (available here), covers a couple of issues, and here is the key passage dealing with the procedure for imposing a LWOP sentence on a juvenile murderer after Miller and Montgomery:

White argues that, as a matter of due process, the State must prove permanent incorrigibility beyond a reasonable doubt in order for the trial court to sentence him to life without parole.  At oral argument, White’s counsel cited Mathews v. Eldridge, 424 U.S. 319 (96 SCt 893, 47 LE2d 18) (1976), which some courts have relied on to conclude that due process demands a finding of permanent incorrigibility beyond a reasonable doubt before a juvenile may be sentenced to life without parole. See Davis v. State, 415 P3d 666, 682 (Wy. 2018); Commonwealth v. Batts, 163 A3d 410, 454-455 (Pa. 2017). But those decisions ignore United States Supreme Court precedent. That Court has made clear that Mathews does not apply in the context of a state criminal case.  See Medina v. California, 505 U.S. 437, 443 (112 SCt 2572, 120 LEd2d 353) (1992) (“[T]he Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which . . . are part of the criminal process.”).  Rather, a state criminal procedure is not prohibited by the federal Due Process Clause “unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. at 445 (citation and punctuation omitted).  The United States Supreme Court has held that “application of the preponderance standard at sentencing generally satisfies due process.” United States v. Watts, 519 U.S. 148, 156 (117 SCt 633, 136 LE2d 554) (1997).  And no Supreme Court decision of which we are aware — much less that White cites — holds that juvenile sentencing of the sort at issue here is an exception to that rule.  White has not shown that the burden of proof applied by the trial court here violated his rights under the federal Due Process Clause.

I do not know if Dakota Lamar White might appeal this ruling to the U.S. Supreme Court, but the paragraph above spotlights the clean split in state courts over this issue. of course, SCOTUS is now working toward a decision in the Malvo case dealing with retroactive application in Miller, and it is possible (though not really all that likely) that other Miller application issues could get addressed directly or indirectly in that coming ruling.

January 14, 2020 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, January 13, 2020

Rounding up previews of SCOTUS oral argument in "Bridgegate" case

More than six years after an infamous partial closing of the George Washington Bridge, and more than three years after a few staffers to then-New Jersey Governor Chris Christie were convicted of federal crimes resulting from this incident, the US Supreme Court will be hearing oral argument tomorrow in Kelly v. United States.   This affair became known as "Bridgegate," and here is how the case's question is presented in the initial  petition for certiorari:  "Does a public official 'defraud' the government of its property by advancing a 'public policy reason' for an official decision that is not her subjective 'real reason' for making the decision?"

Though this case is more about the reach and application of federal criminal statutes than about sentencing, white-collar cases (and political cases) are often worth watching closely because of how they can skew, both jurists and advocates, the usual political divisions of who is pro-defendant and pro-government.  In light of that reality, I am especially interested in how the newer Justices will engage in this case.  Helpfully, Kelly has generated lots of previews from others, so I can be content here to do a quick round-up:

And back in September, SCOTUSblog had a little on-line symposium on the case, which can be found at this link.

January 13, 2020 in Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Governing puts "Criminal Justice Reform" on list of "The Biggest Issues to Watch in 2020" ... but then just discusses reentry issues

The folks at Governing have this lengthy new piece under the headline "The Biggest Issues to Watch in 2020" with the subheadline that "State legislatures will have a lot on their plates." I was pleased to see the heading "Criminal Justice Reform" among the 15 topics that received a few paragraphs of discussion, but then I was a bit surprised to see that nearly all the discussion of state developments focused on issues relating to collateral consequences and reentry:

In December, New Jersey Gov. Phil Murphy signed into law a bill returning the right to vote to anyone on parole and probation.  Earlier that month, Kentucky Gov. Andy Beshear issued an executive order automatically restoring voting rights to people convicted of nonviolent felonies who have completed their sentence.  He then called on the Legislature to adopt a constitutional amendment codifying it into law.  Colorado and Nevada adopted similar laws last spring, raising to 18 the number of states that allow any adult not currently in prison to vote.  Included in that number are Maine and Vermont, which allow people to vote while incarcerated.  Iowa remains the sole state enforcing a lifetime ban on voting rights following any felony conviction.

In recent years at least 35 states and over 150 cities have adopted versions of so called "ban the box" laws and policies.  Named for the box on job application forms that asks for a yes or no answer about a prior criminal record, a yes answer makes it difficult for former felons to get a good job after serving time.  About 19 million Americans have felony convictions.  Many more have been charged with a misdemeanor or arrested.  Justice reform advocates argue that putting up economic barriers for millions of citizens with records is a burden on local economies.

Finding housing and obtaining a professional license for occupations such as barbering, cosmetology and nursing are also more difficult with a criminal record.  Under the Clean Slate law, Pennsylvania recently became the first state to automatically seal criminal records.  Last June, an automated computer process began wiping cases from public databases.  Arrest records, dropped charges and nonviolent crimes that occurred more than 10 years ago will be expunged.  Police and other law enforcement will still have access to the records.  Courts have until June to finish sealing all the cases.  Utah and Connecticut have since introduced similar bills of their own.

Virginia Gov. Ralph Northam recently announced his plans for decriminalizing marijuana possession, raising the threshold for felony larceny and considering incapacitated or terminally ill prisoners for early release.  In addition, Northam’s budget will include $4.6 million for probation services and $2 million to support reintegration of released inmates.

I do think issues relating to collateral consequences and reentry were very hot in 2019 and will remain hot in 2020 and beyond.  But, because there is so much more these days to criminal justice reform, I would like to have seen more discussion of other hot topics like defelonization of drug possession offenses, second-chance legislation and efforts to make prisons less criminogenic (not to mention bail reform and the use of risk-assessment tools).  I do not mean to criticize the folks at Governing for not be able to cover everything in a short space, but I do mean to spotlight how some are viewing state criminal justice reform efforts these days.

January 13, 2020 in Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, January 12, 2020

Seeking guest postings for "Reflections on Booker at 15"

44508843On this day 15 years ago, January 12, 2005, the Supreme Court (not-so-) radically transformed the federal sentencing system through its ruling in Booker v. United States.  I noted in this post exactly five years ago that Booker received very fanfare when it turned 10 in January 2015, so I suppose I am not surprised that it seems I may be one of the few to now highlight (or even realize) that today marks another big milestone in the history of the federal sentencing system.

I am inclined to call year 15 the biggest birthday for Booker because, prior to the ruling, the federal sentencing guidelines operated  as a "mandatory" or "presumptive" sentencing system for roughly 15 years from 1989 to 2004.  Then along came Blakely v. Washington and Booker finding this mandatory system constitutionally flawed and "fixing" the problem by making the guidelines "effectively advisory."  Notably, the US Sentencing Commission in November 2004, right between the Blakely and Booker rulings, released this 250-page report titled "Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform."  I am not aware of any big forthcoming report from the USSC with any assessment of fifteen years of advisory guideline sentencing, though I think it could be very valuable for the USSC and others to reflect at length (and with lots of data) on what fifteen years of advisory guidelines have wrought.

So, in an effort to fill this 15 year Booker birthday void, I am eager to here solicit guest postings from anyone and everyone eager to reflect on the Booker world that has now proven to be so enduring.  In other words, if you follow or participating in the federal sentencing system, send me thoughts via email that I can repost in this space.

In some coming posts, I may do some of my own commentary under the headlined "Reflections on Booker at 15," but I am especially eager to hear other perspectives on the state of the federal sentencing world 15 years after Booker.  I will start the commentary here (and finish this post) with the notable paragraph from Justice Breyer after his embrace of an advisory guideline remedy:

Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.

Based on the passage of 15 years without even the introduction of a major bill that makes any serious effort to change the advisory guideline sentencing system, it seems that Congress has ultimately judged the Booker-created sentencing system to be best for the federal system of justice (or at least good enough for government work).

January 12, 2020 in Booker and Fanfan Commentary, Who Sentences | Permalink | Comments (1)

"Cuomo's Clemency and Cruelty of False Hope"

The title of this post is the headline of this effective commentary authored by Steven Zeidman appearing in the Gotham Gazette. Here are excerpts:

In 2015, New York Governor Andrew Cuomo announced a project to provide pro bono legal services to prisoners seeking clemency.  The governor explained that this was “a critical step toward a more just, more fair, and more compassionate New York,” and that he sought to “identify those deserving of a second chance and to help ensure that clemency is a more accessible and tangible reality.”

Two years later, the governor re-emphasized his interest in clemency via a press release stating that “Family members of individuals serving prison sentences are encouraged to apply for clemency on behalf of their family member.”

This expressed interest in clemency, more specifically clemency in the form of a commutation of sentence, reverberated across New York’s patchwork of 50 state prisons.  Men and women serving lengthy sentences with no chance of ever obtaining their freedom now had hope.  People who spent their time wasting away in their cells began to re-engage with programs.  Family visits reflected renewed promise of the possibility of unification beyond the prison walls.

In short order, CUNY Law School’s clemency project received more than 1,800 requests for help with clemency applications.

Yet not a single person had their sentence commuted in 2019 despite an abundance of robust and meritorious applications.  Then on Friday, January 3, 2020 at 6:15 p.m., an auspicious time for any gubernatorial announcement, Governor Cuomo revealed that clemency requests for commutations had been granted to two people.  Two people out of thousands of applicants.

Apparently, the promise of making clemency an “accessible and tangible reality” was nothing more than a cruel, soul-crushing hoax....

In present terms, clemency is the most readily available means to repair the nationally acknowledged crisis of mass incarceration that has devastated communities of color.  Mass incarceration is not just about unnecessarily incarcerating masses of people, but rather unnecessarily keeping masses of people in prison for decades.  Clemency is a means to address that brutal reality.

Furthermore, while clemency is usually cast as an act of mercy, we all stand to gain when clemency is granted to deserving people.  They are reunited with their families.  They care for aging parents.  They are the true credible messengers who mentor young people who might be on the wrong path.  They have jobs and contribute to the economy. And the taxpayer no longer needs to pay for the medical care required for older people in prison, among other costs. Liberal application of clemency makes us all safer and better.

Many of the men and women who submitted clemency applications based on renewed hope inspired by Governor Cuomo’s words are now saying that false hope is worse than no hope.  The wife of one of those men put it best in a tweet: “My husband wrote that he, his good friends, and more than 100 others sat on the edge of their metal beds all month [of December] waiting...PLEASE recognize the strides these men have made and show them mercy and use your redeeming power as the leader of this state.”

While clemency is typically cast as an end of year event consistent with holiday sentiments of mercy, charity, and forgiveness, surely there must be room for mercy, charity, and forgiveness more than once a year.  And surely, there are more than two people among the 45,000 in New York State prisons who deserve the measure of mercy afforded by a sentence commutation.

I am pleased to see this effort to call out Gov Cuomo for talking the talk, but then failing to walk the walk on clemency. The same also can and should be said about Prez Trump's clemency record. It is now more than 19 months since Prez Trump started talking about reviewing thousands of cases for possible clemency relief, but he has only granted a handful since then.

Prior related post:

January 12, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Mississippi Supreme Court upholds 12-year prison term for mere possession of cell phone in jail

If anyone is looking for a recent example of why and how America persistently earns its status as incarceration nation, look no further than this local article, headlined "Miss. Supreme Court upholds 12-year sentence of man convicted for having cellphone in jail."   Here are the ugly details:

The Mississippi Supreme Court affirmed the 12-year sentence of a man convicted for having a cellphone in jail on Thursday.

Willie Nash was originally booked in the Newton County Jail for a misdemeanor charge when he asked a jailer to charge his smartphone. The jailer confiscated the phone and brought it to the sheriff’s deputy in charge....

A jury convicted Nash of possessing the cellphone in a correctional facility, a felony that carries three to 15 years in prison.  On Aug. 23, 2018, a judge sentenced Nash to 12 years in prison, telling Nash to “consider himself fortunate” for not being charged as a habitual offender based on his prior burglary convictions. Nash was also fined $5,000....

On appeal, Nash challenged the sentence, arguing a 12-year sentence was “grossly disproportionate to his crime” and in violation of the Eighth Amendment....  As for the proportionality of the sentence, the court ruled that while “obviously harsh," the sentence was not grossly disproportionate, and the court affirmed the conviction and sentence.

In a separate written opinion, Presiding Justice Leslie D. King agreed the court reached the correct ruling based on case law, but wrote of his concern that the case as a whole “seems to demonstrate a failure of our criminal justice system on multiple levels.”

King said it is probable that the Newton County Jail’s booking procedure was not followed in Nash’s case, allowing him to enter the jail with his phone.  King also noted that Nash’s behavior indicated that he was not aware that inmates could not bring phones into the correctional facility.  Justice King pointed out that Nash voluntarily showed the jailer his phone when asking him to charge it, suggesting that he was not told during booking that he was not allowed to keep his phone.

King also noted that Nash’s criminal history reveals a change in behavior, with his last conviction of burglary being in 2001, which he was sentenced to seven years in prison for.  For eight to 10 years, King said Nash had stayed out of trouble with the law. He also has a wife and three children who depend on him. Based on the nature of his crime, King said the judge should have used his discretion to consider a lesser sentence....

According to the Mississippi Department of Corrections website, Nash’s tentative release date is Feb. 2, 2029.

The full Mississippi Supreme Court opinion in this case is available at this link, and it serves to highlight how easy it is to use extreme and cruel punishments to justify more extreme and cruel punishments.  Because the defendant here is apparently parole eligible in as few as three years, the trial judge was not off-base when telling him that he was lucky not to be facing a true 15-year mandatory minimum under the state's habitual offender law. And the Supreme Court of Mississippi was able to cite to other cases of defendants getting even harsher sentences(!) for mere cell phone possession to conclude that this harsh sentence was not constitutionally problematic.

With the scale of punishments set so severely for so long in so many places throughout our country, I fear it has become almost routine for many judges and prosecutors to send people off to live in cages for years and years without deep reflection on just what these sentences really mean for the defendant and what they say about American as a nation.  I suspect that, if told in general terms that a citizen had been sent to prison for more than a decade for having a cell phone in the wrong place, most of us would think that this story was coming from China or Russia or some other country with a poor human rights record.  But, in fact, it is just another day in the United States, the supposed land of the free. Sigh.

January 12, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Friday, January 10, 2020

Reviewing uncertainty still surrounding earned-time credits created by the FIRST STEP Act

Alan Ellis, Mark Allenbaugh, and Nellie Torres Klein have this new Bloomberg Law piece headlined "The First Step Act — Earned Time Credits on the Horizon." The piece is an important reminder that, even a full year after the enactment of the FIRST STEP Act, there is still uncertainty surrounding the operation of one of the biggest part of the legislation.  Here are excerpts:

One of the remaining programs to be implemented under the First Step Act is set to begin shortly, enabling some prisoners to earn time credits. But some impediments still exist. As of January, all inmates in the Bureau of Prisons (BOP) custody will have undergone an initial assessment pursuant to implementing a new risk and needs assessment program pursuant to the First Step Act.

By January 2022, it is anticipated the BOP will begin providing all eligible inmates recidivism reduction programming based on their identified needs.  As an incentive for participating in such programming, the First Step Act directs that eligible inmates be able to earn time credits which, while not expressly reducing their sentence, under some circumstances can be used toward increasing pre-release custody (e.g., halfway house and/or home confinement).  The BOP has stated it will post available programming opportunities on its website soon....

In theory, these time credits can then be redeemed by eligible inmates for early transfer into a halfway house, home confinement, or supervised release.  Earned time credits thus do not reduce a prisoner’s sentence, per se, but rather allow eligible prisoners to serve their sentence outside prison walls.

Importantly, potentially large categories of inmates will not be eligible to receive earned time credits based on the crime they committed.  Additionally, non-citizens with immigration detainers will not be able to benefit.... Offenders who complete rehabilitative programs serving sentences for offenses not eligible to receive earned time credits are nonetheless eligible for other incentives including increased telephone and email time, expanded visitation and more options at the commissary.  Incentives for privileges will be decided by individual wardens at each institution.

The current limits on time in a halfway house (up to 12 months) and home confinement (six months or 10% of the sentence, whichever is less) will not apply to earned time credits.  Thus, a person can be released to a halfway house and/or home confinement even earlier, meaning, inmates can spend more than 12 months in a halfway house or more than ten percent of their sentence in home confinement after accumulating earned time credits....

If properly implemented, this aspect of the First Step Act could not only significantly lower the number of inmates in an already over-crowded and under-staffed system, but actually reduce recidivism and thereby provide important insights to criminal justice professionals and legislators on best practices for keeping people out of prison.  As of now, no one can earn time credits for completing the program or productive activities until the DOJ completes and releases PATTERN, and the BOP creates or expands existing evidence-based programming or productive activity.  As a result, earned time credits received prior to the implementation of the Risk Assessment Tool will not be eligible for redemption until the Tool is implemented.

Unfortunately, the ability to start earning credits may not actually come for most prisoners until even later than that, depending on how long it takes the BOP to apply PATTERN and create programming and productive activities and assign prisoners to them.  PATTERN was the subject of a House Judiciary Committee Oversight Hearing where some experts expressed concern about its “racial bias and lack of transparency, fairness, and scientific validity.” 

The DOJ has been somewhat circumspect as to how close PATTERN is to being finalized, stating only that it “is currently undergoing fine-tuning.”  Nonetheless, indications are that inmates will begin being scored under a preliminary version soon.

Another potential impediment to full implementation will be the availability of half-way house beds.  In certain parts of the country, there is a shortage of available half-way house beds for federal inmates.  The act did not mention any additional funding or resources for the BOP to implement this program.  This obviously could potentially delay or otherwise limit the implementation of other aspects of the program.  Congress’ intent under the First Step Act is well-intentioned, but without adequate funding, it may not benefit qualifying inmates it was designed to serve.

January 10, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, January 09, 2020

"Should Judges Have to Weigh the Price Tag of Sending Someone to Prison?"

The title of this post is the title of this new Mother Jones piece with this subheadline: "A handful of reformist DAs think so. But they’re meeting plenty of resistance."  Here is the start of a long piece (with good links) that merits a full read:

There’s one trial that Buta Biberaj will never forget. Biberaj, a former defense attorney, remembers how Virginia jurors in 2017 requested 132 years of prison for a man who stole car tires.  The jurors may have been unaware that taxpayers could pay more than $25,000 a year to keep someone incarcerated — so by proposing their sentence, they were also suggesting that society fork over $3 million. For tires.

Last week, Biberaj started her term as district attorney in Virginia’s Loudoun County. As part of a wave of progressive candidates that swept district attorney elections in Virginia in November, Biberaj is calling for changes that reformers elsewhere have championed, like ending cash bail and letting marijuana crimes go.  But she’s also touting a proposal that goes a step beyond what most liberal district attorneys have floated: She wants courts to grapple with the financial toll of incarcerating people.

Normally, if someone commits a felony like rape or murder, a prosecutor from a district attorney’s office tells a jury or judge why the victim deserves to see the offender locked away.  Prosecutors are often evaluated by the number of convictions they receive and the types of lengthy sentences they secure, with some touting their toughness to win reelection.

Biberaj, during her 25-plus years as a defense lawyer and more than a decade as a substitute judge, came to believe that the sentencing process is flawed. So now as district attorney, she wants her office to tell juries exactly how expensive it is to send people to prison.  “If we don’t give them all the information, in a certain way we are misleading and lying to the community as to what the cost is,” she said in an interview before the election.

Biberaj is not the first prosecutor to suggest such a policy.  In 2018, Philadelphia District Attorney Larry Krasner, one of the country’s most famous progressive prosecutors, launched a similar experiment.  Shortly after his election, he instructed his office’s attorneys to tell judges how much recommended prison sentences would cost, noting that a year of unnecessary incarceration in the state rang in at about $42,000—around the salary of a new teacher, police officer, or social worker.  “You may use these comparisons on the record,” he told them. Chesa Boudin, the former public defender elected as district attorney in San Francisco in November, says he plans to implement a similar policy after taking office this week....

But so far, other than Biberaj and Boudin, the idea hasn’t caught on widely.  While more progressives are running, about 80 percent of prosecutors go unopposed in elections, meaning that many tough-on-crime district attorneys maintain their seats.

And some judges don’t want to know how much a prison term will cost. They argue that money has no place in decisions about punishment and justice.  Choosing a sentence, they say, should involve weighing the specific situation and needs of the offender and victim, irrespective of budget. And if elected judges feel pressure to save money for taxpayers, it could skew their opinions, argues Chad Flanders, a professor at Saint Louis University School of Law.  “Asking judges to make budgetary decisions in sentencing is just another way of asking them to be politicians,” he wrote in a paper on the subject in 2012.  Some judges in Philadelphia have asked Krasner’s attorneys not to share the cost data with them.

January 9, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Lots of items of capital interest at Death Penalty Information Center

I frequent the Death Penalty Information Center website on a regular basis for all sorts of data and other detailed information about the administration of the death penalty in the modern era. But the site also keeps up with some capital punishment news and research (with DPIC's abolitionist bent), and the last few weeks have had a number of notable new postings. Here is a sampling that seemed worth flagging here:

"Louisiana Reaches Ten Years Without an Execution"

"Criticism by Government Leaders, Victim’s Son Fuel Growing Doubts About Viability of Ohio’s Death Penalty"

"Death Sentences Decline by More than Half in Decade of the 2010s"

"Report Addresses Death-Row Family Members’ Barriers to Mental Health Care"

"Law Review: New Article Highlights Decline of Judicial Death Sentences"

"Controversial Mississippi Prosecutor Recuses Himself from Further Involvement in Curtis Flowers’ Case"

January 9, 2020 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Wednesday, January 08, 2020

A notable judicial pitch for better sentencing data in the Buckeye State

In this post yesterday, I noted a recent commentary discussing the role of Ohio's Chief Justice in advocating against certain state sentencing reform.  Today I can spotlight another kind of sentencing reform advocacy by two different Ohio jurists, Justice Michael Donnelly and 8th Ohio District Court of Appeals Judge Ray Headen, which appears in this new cleveland.com opinion piece headlined "Create centralized criminal-sentencing database to reduce mass incarceration in Ohio."  Here are excerpts:

As two members of our state’s judiciary, we write to include our names in support along with the Ohio Criminal Sentencing Commission for the creation of a centralized criminal database and repository to track all criminal sentences in Ohio.  The commission has stated that criminal justice data in Ohio “is disparate, mismatched, and complex, and lacks the capacity to fully and completely narrate the comprehensive criminal justice story in Ohio.”

With a sentencing database, the Ohio General Assembly would be arming judges, prosecutors, defense attorneys, and Ohio’s citizens with information that is currently unavailable to them, and that would make the administration of justice more fair, equitable, and most importantly, transparent.  Without this information, many criminal defendants will continue to believe that whether they receive a five-year or a 20-year sentence is largely determined by which judge is assigned to their case at arraignment, rather than the actual record of their case....

A sentencing database and repository developed and maintained by the Ohio Criminal Sentencing Commission -- among data-gathering reforms the 19-year-old commission recommended a year ago -- would provide all stakeholders and appellate courts charged with reviewing sentences with the ability to ensure that criminal sentences are consistent with what our General Assembly has indicated are the overall purposes and principles of felony sentencing, as embodied in Ohio Revised Code 2929.11 and 2929.12. Those purposes and principles are to punish the offender, protect the community, set the offender on a course towards rehabilitation, and use the least amount of state resources necessary to achieve these goals. Uniformity and proportionality of sentences are essential to maintaining the public’s confidence in our courts.

We agree with the Ohio Criminal Sentencing Commission’s view that policymakers and enforcers must be able to access comprehensive criminal justice information to maximize public safety and develop effective policies.  A criminal sentencing database and repository will help reduce mass incarceration and will be an investment in a safer, fairer, and more cost-efficient justice system.

January 8, 2020 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

Tuesday, January 07, 2020

Federal prosecutors, now soured on Michael Flynn, note that "similarly situated defendants have received terms of imprisonment"

As reported in this Washington Post piece, "Federal prosecutors Tuesday recommended that former national security adviser Michael Flynn serve up to six months in prison, reversing their earlier recommendation of probation after his attacks against the FBI and Justice Department." Here is more on the latest filing by prosecutors:

The government revoked its request for leniency weeks after Flynn’s sentencing judge categorically rejected Flynn’s claims of prosecutorial misconduct and that he had been duped into pleading guilty to lying to FBI agents about his Russian contacts after the 2016 U.S. election. “In light of the complete record . . . the government no longer deems the defendant’s assistance ‘substantial,’ ” prosecutor Brandon Van Grack wrote in a 33-page court filing.  He added, “It is clear that the defendant has not learned his lesson. He has behaved as though the law does not apply to him, and as if there are no consequences for his actions.”

Flynn faces sentencing Jan. 28 before U.S. District Judge Emmet G. Sullivan in Washington. Flynn defense attorney Sidney Powell is scheduled to file his sentencing request Jan. 22.

The request marked the latest twist in the legal saga of the former Army lieutenant general and adviser to President Trump, whose rocky path after his candidate won the White House included serving the shortest tenure of a national security adviser on record — just 24 days — before resigning in February 2017. He then became a key witness in a probe into the administration, before breaking with the prosecutors who had credited him with helping them.

Flynn’s change of heart came after the end of special counsel Robert S. Mueller III’s probe of Russian election interference. Some Trump allies at that time pushed the president to pardon figures in the probe, particularly Flynn. A potential prison term could renew such calls.

Flynn, 61, pleaded guilty Dec. 1, 2017, to lying about his communications with then-Russian Ambassador Sergey Kislyak during the presidential transition, becoming the highest-ranking Trump official charged and one of the first to cooperate with Mueller’s office.

Flynn faces up to a five-year prison term under the charge, which included his misrepresentation of work advancing the interests of the Turkish government. However, ahead of Flynn’s initially scheduled sentencing in December 2018, prosecutors said he deserved probation for his “substantial assistance” in several ongoing investigations. In a November 2018 filing, Mueller wrote that Flynn’s guilty plea “likely affected the decisions of related firsthand witnesses to be forthcoming . . . and cooperate.” The special counsel noted Flynn’s “early cooperation was particularly valuable because he was one of the few people with long-term and firsthand insight regarding events and issues under investigation.”...

This year Flynn switched defense lawyers, and his new team asked Sullivan to find prosecutors in contempt, alleging Flynn had been entrapped into pleading guilty and prosecutors wrongfully withheld evidence. Flynn also broke with prosecutors in the July federal trial of his former business partner Bijan Rafiekian, on charges of illegally lobbying for Turkey. Flynn was set to be the star witness against Rafiekian. He told a grand jury he and Rafiekian campaigned “on behalf of elements within the Turkish government,” a project that included an op-ed under Flynn’s name on Election Day in 2016. But just before the trial, Flynn claimed prosecutors wanted him to lie. A jury convicted Rafiekian without Flynn’s testimony, but a judge threw out those convictions in part because he found “insufficient” evidence of a conspiracy between the two men or of the Turkish government’s role....

In withdrawing their request for leniency, Flynn’s prosecutors highlighted his hindrance of Rafiekian’s prosecution, the only cooperation they had initially deemed “substantial.” The government recommended zero to six months of incarceration for Flynn, citing “the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in — and his affirmative efforts to undermine — the prosecution of Bijan Rafiekian.”

Prosecutors backed their claim Tuesday by filing dozens of pages detailing Flynn and his lobbying firm’s misconduct, including grand-jury transcripts and FBI interview reports. Overall, prosecutors said Flynn participated in 19 interviews with federal prosecutors and turned over documents and communications. The substance of his cooperation was initially hidden, but most has come out in Mueller’s final report, subsequent trials or public records released as a result of lawsuits filed by news organizations.

The Government's 33-page "supplemental memorandum in aid of sentencing" in US v. Flynn is available at this link and makes for quite an interesting read. Lots of headlines concerning the filing suggest that the feds are seeking a prison term for Flynn and one as long as six months.  But the final phrase of the submission's introduction simply states that "the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration."  A sentence of zero months for Flynn would technically be within the applicable guideline range and comply with the government's recommendation.  Highlighting the nuance of the Government's work here, consider the final section of the submission, which start and ends this way:

The factors enunciated in Section 3553(a) all favor the imposition of a sentence within the Guidelines range.  The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct.  Similarly situated defendants have received terms of imprisonment....

In the above cases, a term of imprisonment was imposed.  The government acknowledges that the defendant’s history of military service, and his prior assistance to the government, though not substantial, may distinguish him from these other defendants.  The government asks the Court to consider all of these factors, and to impose an appropriate sentence within the Guidelines range.

Prior related posts (all from over one year ago):

January 7, 2020 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"Why Is the Chief Justice of Ohio's Supreme Court Lobbying Against Sentencing Reforms?"

The question in the title of this post is the headline of this Reason commentary from a few weeks ago that I just came across today. Here are excerpts from a piece worth reading in full:

Ohio lawmakers trying to pass sentencing reforms have faced opposition this year from the usual suspects, such as lobbyists for prosecutors and law enforcement. But they've also run into vocal criticism from an unexpected source: Ohio Supreme Court Chief Justice Maureen O'Connor.

It is unusual — and it may damage the objectivity and independence of the court system — for sitting Supreme Court justices to lobby for or against legislation.  But that hasn't stopped O'Connor from jumping into the middle of the legislature's deliberations over a pair of criminal justice reform proposals. In newspaper op-eds, public appearances, and letters to members of the state Senate, O'Connor, who happens to be a former prosecutor and lobbyist, has repeatedly argued against a bill that would downgrade some felony drug possession charges to misdemeanor offenses.

O'Connor, of course, has a First Amendment right to speak about legislation and to criticize the legislative process if she wants.  But she seems to recognize the unusual nature of her advocacy. "You may think it unprecedented to receive a letter from me, as Chief Justice, that addresses my concerns about [Senate Bill 3]," O'Connor wrote in a December 3 missive to state legislators, a copy of which was obtained by Reason.  But, she adds, it is "my duty" to speak out about issues that "affect the administration of criminal justice and the operation of Ohio's courts."...

Sen. John Eklund (R–Munson), the sponsor of the bill in question and one of the recipients of O'Connor's letter, agrees that it's unusual to get a letter from a sitting Supreme Court justice advocating against a specific piece of legislation. Eklund's bill is one of two major criminal justice reform measures that have been jockeying for legislators' support in Columbus this year. He says says it's rooted in the idea that people deserve a chance to prove they can learn from past mistakes. "We want people to get better and move on to lead productive lives, while also ensuring that traffickers are arrested and stay behind bars," he explains....

At the same time that she's been lobbying against Senate Bill 3, O'Connor has been pushing the legislature to approve the other criminal justice bill it was considering this year: House Bill 1.  In her December 3 letter, O'Connor highlights the House bill's support from law enforcement groups — she specifically name-checks the Ohio Prosecuting Attorneys Association — as a reason to prefer it to the Senate proposal.

The House bill also seeks to shunt some drug offenders into treatment programs, but it does not reclassify some drug felonies as misdemeanors. O'Connor and others claim that the cudgel of a felony charge is necessary to get offenders into treatment. "Downgrading the underlying offenses will only reduce one of these incentives and the likelihood of a lasting recovery," the chief justice wrote in a September 19 letter to Eklund.

There's no law or rule that says judges can't lobby for legislation. Indeed, Jonas Anderson, a professor of law at American University who has written about judicial ethics and lobbying, points out that there are times when judicial input can offer important information to legislators, particularly when they can provide technical information about the workings or needs of the justice system.

But judges should be careful about crossing the line into pushing or opposing specific policies, he adds. "We think of the judicial system as a place where you can get a decision about a dispute that's free from political considerations," says Anderson.

In lobbying against Senate Bill 3, O'Connor has indeed made some technical arguments about how the court system would operate under the new sentencing guidelines proposed by the law.  But her objections are overwhelmingly directed at the underlying policy....

After a career defined by criss-crossing the dividing lines between branches of government — and by advocating for tougher criminal justice legislation both from inside the executive branch and as an outside lobbyist — O'Connor apparently thinks it appropriate to tell state lawmakers what to do.  Indeed, this is not the first time she's tried to stamp out sentencing reforms.  In 2018, she penned op-eds telling voters to oppose a ballot measure that would have reduced drug possession penalties in order to keep low-level nonviolent offenders out of the prison system.  Passage of the measure would be "catastrophic" for Ohio, she wrote.  Not exactly the sort of dispassionate analysis one would hope to read from the head of the state's highest court.  Voters listened, and they defeated that proposal at the ballot box last year....

By using her authority as the state's top jurist to parrot talking points from prosecutors and law enforcement lobbyists, O'Connor may yet succeed in stomping criminal justice reform efforts, but she also undermines her own credibility and that of the state's court system.  The legitimacy of the judiciary survives largely because the system is perceived to be separate from the political machinations that go on within a legislature.  O'Connor's willingness to use her judicial position to help shape policy should make Ohioans wonder about her ability to be an objective arbiter.  "Judges shouldn't be muzzled," says Anderson, "but lobbying as a judge — not as an individual, but as a judge — risks the independence and objectivity of the judicial branch."

January 7, 2020 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, January 04, 2020

Despite creating lots of clemency hope, NY Gov Cuomo delivers little clemency relief

This New York Daily News article, headlined "Gov. Cuomo grants clemency to abused upstate woman convicted of murder as advocates call for more action," reports on the clemency grants issued yesterday by New York Andrew Cuomo. Here are the details:

An upstate woman convicted of murder after suffering physical and emotional abuse at the hands of her husband had her 50-year prison sentence commuted by Gov. Cuomo on Friday. Monica Szlekovics, along with her abusive husband, was found guilty of a 1996 murder in Rochester.

Szlikovics, 42, had a traumatic childhood and endured “extreme, ongoing physical and psychological abuse from her husband,” said a statement from Cuomo’s office. She suffered from complex post-traumatic stress disorder and trauma bonding when her husband forced her to take part in the slaying, the statement said.

In her more than two decades behind bars, Szlekovics has expressed remorse for her role in the murder, completed a bachelor’s degree in sociology, worked as a clerk for the prison college program and participated in domestic violence classes. She also has the support of domestic violence groups and women’s justice advocates....

Cuomo also commuted the sentence of Ryan Brice, 32, who turned to crime to make money after his family lost their home and possessions from flooding during Hurricane Irene in 2011. Albany cops caught Brice trying to raise cash by selling a loaded assault rifle for $1,200, leading him to plead guilty to a charge of criminal weapons possession. He was sentenced to prison as a violent offender — even though he never committed any violent acts, the governor’s office said.

Cuomo pardoned nine others convicted of a variety of charges who have remained crime-free since serving their time. Most of those pardoned were convicted of misdemeanor drug charges. He called those who he granted clemency "deserving New Yorkers who have proven their remorse and undergone successful rehabilitation.”

Advocacy groups say Cuomo has failed to follow through on promises to assist more convicted criminals who have demonstrated remorse and accountability. The Release Aging People in Prison Campaign issued a scathing statement Friday calling on Cuomo to show mercy to more of the thousands of prisoners who have applied to have their sentences shortened....

Since 2011, Cuomo has commuted the sentences of only 21 people — most famously that of Judith Clark, who drove a getaway car in the 1981 Brink’s robbery that left three people dead. The commutation in 2016 move made Clark eligible for parole; she was released from prison last June. In 2018, Cuomo issued around 30 pardons, mostly to immigrants who were at risk of deportation. He also commuted the sentences of nine prisoners.

The official statement from Gov Cuomo about the 11 clemency grants can be found here, and the statement from The Release Aging People in Prison Campaign can be found here. Here is an excerpt from that later statement:

As New York celebrates a new year and decade, thousands of New Yorkers continue to languish behind prison bars in 2020 because the governor continually refuses to use his executive clemency power in a meaningful way.  While governors in Kentucky, Oklahoma, Pennsylvania, California, and other states have recently used their executive power to promote freedom and reunite families, Cuomo continues to keep people in despair and families apart.

In 2015, Cuomo invited pro bono attorneys to help incarcerated people put together clemency petitions with the goal of granting more clemencies to worthy candidates.  More than 6,000 New Yorkers in prison responded by applying for clemency in ways that demonstrated their remorse, accountability, many accomplishments, family and reentry support, and more.  Yet to date, Cuomo has granted only 21 total commutations, an average of two per year since taking office in 2011.

If New York is to be a leader in the movement to end mass incarceration and the nationwide effort to resist President Trump’s racist agenda, then we need a progressive governor to show bold courage and leadership. Justice for one or two individuals isn’t enough.

More than a few notable folks have used Twitter (such as Profs Rachel Barkow and Steve Zeidman) to expresss similar disappointment at Gov Cuomo's failure to walk the clemency walk after having long talked up his clemency powers.

January 4, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 03, 2020

"The Effectiveness of Prison Programming: A Review of the Research Literature Examining the Impact of Federal, State, and Local Inmate Programming on Post-Release Recidivism"

The title of this post is the title of this notable new research document authored by James Byrne on Behalf of the First Step Act Independent Review Committee. (Backgound on this important Committee can be found at this link.)  I do not believe that this Committee has yet produced much original substantive material, and I am not sure if this new 42-page research document (which is dated Dec. 2019) is a sign of more to come.  In any event, here is its introduction:

The First Step Act emphasizes the importance of BOP programming as a recidivism reduction strategy and includes sentence-reduction incentives for eligible inmates who participate in “evidence-based recidivism reduction programs.”  This memorandum reviews available research about the recidivism reduction effects of federal, state, and local prison programming in an attempt to determine to what extent such programming can fairly be described as evidence-based.  There are three distinct types of reviews that can be used to establish evidentiary criteria and determine “what works” in the area of prison programming (Byrne and Luigio, 2009).  The most rigorous such review would focus narrowly on the results of high quality, well-designed randomized control trials (RCTs) conducted during a specified period.  A minimum of two RCTs demonstrating effectiveness (and a preponderance of lower-level research studies producing similar results) would be necessary before a determination could be offered about whether a particular program or strategy “worked.”  This is the type of review strategy and scientific evidence relied on in the hard sciences.

A second review strategy allows identification of a program as evidence-based (or working) if there are at least two quasi-experimental studies with positive findings, and the majority of lower-quality studies point in the same direction.  This is the approach used in the reviews produced by the Campbell Collaborative.  A variation on this approach — representing a third type of evidence-based review — is found on the DOJ CrimeSolutions.gov website, where a program will be described as effective based on a rating of each applicable research study by two independent reviewers.

To be rated as effective, at least one high quality evaluation — RCT or well-designed quasi-experiment — needs to be identified.  This memorandum adopts the second standard described above to summarize the research under review (see Appendix B), but we have also examined all studies and reviews of prison programs identified by CrimeSolutions.gov.

Included in this review is a careful look at the available evaluation research on the BOP programming, focusing on the 18 “national model” prison programs identified by BOP.  Also included in this review is an examination of the much larger body of evaluation research conducted on the recidivism reduction effects of state and local prison programs.  This memorandum offers summary assessments of all relevant evaluation research and corresponding recommendations for DOJ and BOP to consider as they move to implement high quality, evidence-based programming in the federal prison system.

And here is a key paragraph labelled "Conclusion" after a detailed substantive discussion (with emphasis in original):

Completion of prison programming by federal prisoners does appear to provide an important signal that these individuals have begun to address — via BOP programming — problems that we know are linked to criminality: substance abuse, mental health deficits, and lack of education and/or employment skills.  However, a careful review of the evaluation research strongly suggests that the likely effects of participation in current prison programming on both treatment outcomes (i.e. improvement in identified need areas) and post release behavior are—statistically speaking—significant but marginal (i.e. about a .10 absolute difference between treatment and control groups is the likely result were these programs rigorously evaluated).  While prison programming is certainly one piece of the desistance puzzle, it appears that individuals will desist from crime upon release from prison based on a variety of individual and community level factors not directly related to the availability and/or quality of prison programming.  For this reason, accurate prison-based risk/need classification that links inmates at different risk/need levels to appropriate evidence-based prison programming should be followed by evidence-based reentry programming (Cullen, 2013).  While this report focuses on prison programming, we recognize the critical role of reentry programming and community context (e.g. structure, support, resources, location) in the desistance process.

January 3, 2020 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Thursday, January 02, 2020

Deep dive into parole history and modern parole practice in California

The New York Times Magazine has this very long new piece on parole under this full headline "Can You Talk Your Way Out of a Life Sentence?: California is giving a second chance to thousands of inmates who had no hope of parole. But first they have to prove to a panel of strangers that they’ve truly changed." The lengthy piece merits a full read, and here is a snippet from its early sections:

The modern idea of basing a prisoner’s release on evidence of his or her rehabilitated character can be traced to 1870, when the inaugural meeting of the newly formed American Prison Association took place in Cincinnati. There, representatives from 25 states, Washington, D.C., and Canada adopted a declaration of principles, among them that prisoners should be rewarded for good conduct and that a “prisoner’s destiny should be placed, measurably, in his own hands.” To achieve this, they argued, “sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time.”

By 1922, nearly every state in the union had adopted indeterminate sentencing, in which judges hand out sentences that are formulated as a range of years — a minimum and a maximum amount of time to be served. The responsibility for deciding exactly when in this range an inmate had been rehabilitated enough to be released was vested in state parole boards. (The federal penal system has its own early-release process.)

Over the next half century, it became clear that there was an intrinsic tension between the high-minded notion that inmates should be in control of their own destinies, by deciding whether or not to reform, and the practical difficulty of determining whether they had actually done so. By the 1970s, the discretionary parole system was under attack. Liberals argued that a parole board’s broad leeway allowed racial and class biases to rule unchecked. Conservatives argued that parole boards were releasing dangerous felons who then went on to commit more crimes. A rising national crime rate made the public increasingly dubious of the paternalistic promises of a rehabilitative system.

Over time, some states got rid of parole entirely, while others drastically increased the minimum amount of time an inmate would need to serve before becoming eligible to go before a board. In Georgia, for example, inmates who received a life sentence for a serious crime committed before January 1995 became eligible for parole after seven years. Those who have received a life sentence for a crime committed after June 2006 don’t become eligible for parole until they’ve served 30 years.

But discretionary parole continues to exist in most states, even if it’s often limited to a small pool of longtime inmates whose lengthy periods of incarceration have consigned them to near-oblivion. Conducted by panels of political appointees with varying levels of professional expertise, little accountability and almost unlimited discretion, parole hearings rarely garner attention except when a high-profile inmate comes up for parole.

The United States Supreme Court ruled in 1987 that inmates who have been sent to prison for life have no due-process right to be released unless the wording of their state’s parole statute created one. In the absence of such rights, parole decisions can be remarkably arbitrary. A 2017 survey of paroling authorities by the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School found that 41 percent of parole boards never make public the logic behind a parole denial, and at least seven states don’t require their parole boards to provide a written explanation for their denial to the parole-seeking inmate. Prisoners are often unable to see the file that the parole board bases its decisions on — in Alabama and North Carolina, inmates are not even allowed to be present for the hearing. While every state except Kentucky and New Mexico allows inmates to have a lawyer at their hearing, very few states will pay for one, which means only a tiny minority of inmates have a lawyer with them at their hearings. “You have about 3 percent of the procedural rights before a parole board as you would in a courtroom,” says Kevin Reitz, the Robina Institute’s former co-director.

All of this makes discretionary parole a far cry from the equation proposed in 1870, in which demonstrated behaviors would result in predictable outcomes. Instead, Reitz has found that parole commissioners are dominated by fears of releasing an inmate who goes on to commit a terrible crime. That’s exactly what happened on March 19, 2013, when a parolee, Evan Ebel, murdered Tom Clements, the executive director of Colorado’s Department of Corrections. When he interviewed parole board members in Colorado, Reitz says, he found the specter of that murder loomed over every decision they made: “Board members told me, ‘If I let someone out and he does something horrible, that’s on me.’ ” So parole-board members have little motivation to release inmates, no matter how deserving they seem.

January 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Two jurisdictions to watch closely in 2020 for the future of the US death penalty

Though I am surely biased by my proximity, I do not think I am wrong to have long viewed Ohio as an especially interesting and important state with respect to the modern administration of the death penalty.  And this recent Columbus Dispatch column, headlined "Will the new year bring an end to Ohio’s elusive death penalty?," suggest reasons why the Buckeye State might be an especially interesting potential capital punishment bellwether this year.  Here is how the piece starts and ends:

Among the new year's possibilities, 2020 may see Ohio end its death penalty.  Reason One is that the state has run out of places to buy the substances specified for administering lethal injections.  Reason Two is the colossal cost to taxpayers of defending in the appeals courts virtually every death sentence that Ohio metes out (with some of those costs for compensating public defenders representing, as is only right, death row inmates).

As to practicality and cost, two of Ohio's most powerful leaders, Republican Gov. Mike DeWine and Ohio House Speaker Larry Householder, a Republican from Perry County's Glenford, have expressed serious concerns.  The unavailability of execution drugs means, in practice, that Ohio is facing a de facto moratorium on executions.

Meanwhile, Householder said this in mid-December, as The Dispatch reported: "We may have a law in place that allows for a death penalty that we can't carry out. And the question is: Are the costs that are associated with that and retrials and all these things, at the end of the day, is it worth that?"...

In courtroom after courtroom, what an Ohio death sentence might really mean is imprisonment for life — if you can call that a life — without any possibility of liberty. The question is whether Ohio should admit the reality of its death penalty, or, at a cost of millions of taxpayer dollars in legal fees, keep denying the obvious.

During most of the past 15 years when Ohio death penalty stories have been very dynamic, the federal death penalty was largely dormant. But the Trump Administration took efforts to gear up the federal federal machinery of death in summer 2019. Executions were temporarily block by court order right before the end of this year, but this long Intercept article, headlined "In The Shadow Of The Federal Death Chamber, Executions Are On Hold — For Now," highlights how the possible return of federal executions in 2020 may impact folks near the site of the federal execution chamber and in lots of other places.

January 2, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Tuesday, December 31, 2019

Illinois Gov pardons more than 11,000 people convicted of low-level marijuana crimes

As reported in this local article, "On the day before recreational cannabis becomes legal in Illinois, Gov. J.B. Pritzker announced he was pardoning more than 11,000 people who had been convicted of low-level marijuana crimes." Here is more:

“When Illinois’ first adult use cannabis shops open their doors tomorrow, we must all remember that the purpose of this legislation is not to immediately make cannabis widely available or to maximize product on the shelves, that’s not the main purpose, that will come with time,” Pritzker said to a crowd at Trinity United Church of Christ on the Far South Side. “But instead the defining purpose of legalization is to maximize equity for generations to come.”

Pritzker, who has touted the social equity elements of the recreational pot law he signed this summer, was joined Tuesday by state, county and local leaders including Cook County State’s Attorney Kim Foxx, who has already begun the process of clearing the records of those with low-level marijuana convictions in her jurisdiction.

The 11,017 people pardoned by Pritzker will receive notification about their cases, all of which are from outside Cook County, by mail. The pardon means convictions involving less than 30 grams of marijuana will be automatically expunged.

Pritzker and other elected officials said they believe Illinois is the first state to include a process for those previously convicted of marijuana offenses to seek relief upon legalization of cannabis. “This is justice,” said Lt. Gov. Juliana Stratton. “And this is what equity is all about, righting wrongs and leveling the playing field.”...

Officials estimate there are hundreds of thousands of people with marijuana-related convictions in Illinois who could be eligible for relief. Those with criminal convictions can get a copy of their criminal record and start the process, though many of the cases will be automatically expunged by the state in the next couple of years.

The Illinois State Police are searching criminal records to identify eligible cases, which are then sent to the state’s Prisoner Review Board. After the board reviews the cases, the names of those eligible for relief are sent to the governor’s office to be considered for pardon. After Pritzker issues the pardon, the attorney general’s office automatically files petitions on the person’s behalf to expunge the records.

State’s attorney offices across the state are also being notified of eligible cases, which can then be vacated by a local judge. In Cook County, prosecutors are working with California-based Code for America to search for convictions involving less than 30 grams of cannabis. Those cases have resulted in both misdemeanor and Class 4 felony convictions....

Individuals with cases involving 30 to 500 grams of cannabis can also be eligible for relief, but the process won’t be automatic, instead requiring the person to file motions to vacate the conviction, according to the governor’s office.

While a pardon forgives a conviction, an expungement erases it from the public record. When a judge vacates a conviction, it overturns it as if it never happened. When a case is expunged, the case is hidden from public view, but it could be viewed by law enforcement if they obtained a court order.

Many of the elected officials noted that enforcement of marijuana-related offenses have disproportionately affected minorities. The Rev. Michael Pfleger, of St. Sabina Church on the South Side, said the elected officials on the stage had done their job, but it would be up to business leaders in the new industry to provide financial mobility for those individuals. “Employ these individuals," Pfleger said to the crowd. “Give them a job.”

Ald. Walter Burnett Jr., of the 27th Ward, noted that a pardon for an armed robbery conviction decades ago changed his life and allowed him to serve in public office. He invoked Martin Luther King Jr.'s words to describe how he felt when his record was expunged and how others might feel when they hear news of the pardons. “Free at last,” Burnett said. “Free at last. Thank God almighty, they are free at last.”

Cross-posted at Marijuana Law, Policy and Reform.

December 31, 2019 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Looking back on state criminal justice reform and significant reporting of 2019

I fear I may not find time to do a full "2019 blog in review" post in the coming days, though I hope to soon do a post noting some highlights from this past year as I imagine what 2020 might bring in the sentencing universe.   I certainly can find time here to spotlight some other notable "year in review" efforts.  Specifically, a must-read for anyone focused on state-level reforms in this Appeal piece by Daniel Nichanian headlined "From marijuana to the Death Penalty, States Led the Way in 2019: A retrospective on the year that was on criminal justice reform. Seven maps. 16 issues. 50 states."  Here is how this great lengthy piece gets started:

State legislatures this year abolished the death penalty, legalized or decriminalized pot, expanded voting rights for people with felony convictions, restricted solitary confinement, and made it harder to prosecute minors as adults, among other initiatives.

But criminal justice reform remains an uneven patchwork. States that make bold moves on one issue can be harshly punitive on others.  And while some set new milestones, elsewhere debates were meager — and in a few states driven by proposals to make laws tougher.

The Political Report tracked state-level reforms throughout 2019. Today I review the year that was — by theme and with seven maps. And yes, each state shows up.

In addition, I noticed that two notable media outlets that do a lot of great original criminal justice reporting have assembled their own best-of reviews of 2019:

December 31, 2019 in Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, December 28, 2019

"Attorney General Barr wrong about role of prosecutors. Tough-on-crime stance stunts progress."

The title of this post is the headline of this notable new USA Today commentary authored by Ronald Wright.  Ron is a co-author on the Sentencing Law and Policy casebook, so I am professionally inclined to agree with a lot of what he has to say.  But this commentary — which carries a subheadline "Criticism of 'social justice' prosecutors, threat to communities shows DOJ leaders lack vision, understanding to ensure justice system reform" — strikes me as an especially astute and thoughtful response to some of the silliness emerging from DOJ leaders on this issue of late.  Here are extended excerpts:

Across the country, a new wave of prosecutors is working to reverse the damaging effects of decades of over-incarceration, attempting to make progress in the face of criticism from the nation's top law enforcement officials — Attorney General William Barr and Deputy Attorney General Jeffrey Rosen.  Both men have shown a lack of understanding when it comes to prosecutorial reform — Barr in a column written his month in which he criticized "'social justice' DAs" and "'progressive' judges" and another written last month by Rosen that accused prosecutors of "shirking" their duty....

These comments are misleading, incorrect and, more than anything, demonstrate that Barr and Rosen don't understand the modern prosecutor’s job.

The idea that the criminal justice system is not broken appears to stem from an indifference to historical trends and current realities.  Incarceration rates may have begun to tick down, but the United States remains far and away the world's incarceration leader, with 2.2 million people behind bars.  Jails process 10 million admissions every year.  And we spend too much to incarcerate too many — at least $80 billion a year. In this country, spending on the very systems Barr and Rosen claim are working, has outpaced spending on education.

Absent from their vision is how our system punishes the most vulnerable. The median income of adults who end up in the system hovers at less than $20,000 a year for men (and about $5,000 less for women). That's half the average median income of men who never end up in prison. Every day, according to 2018 numbers, we keep about 53,000 children incarcerated in this country. And while a white man has a 1 in 17 chance of being sent to prison, those chances grow to 1 in 6 for Latino men and 1 in 3 for black men. In short, to claim that these systems are not broken shows willful blindness.

Instead of learning from past mistakes, Barr and Rosen continue to call for more of the same. They often credit law enforcement policies of the last few decades with reducing crime — without providing any evidence that mass incarceration works.

Yes, crime rates fell during the same time period that incarceration soared. But the crime drop has many causes. Studies show that tough-on-crime policies had, at best, a “modest” effect on the decline.  Prison growth in the 1990s had a limited impact on crime, but since then the effect mostly disappeared.  It is now clear that states with lower incarceration rates achieved just as much public safety as states with higher rates.  And other countries got better results with far smaller and more humane prison systems.

In sum, our bloated prison systems cost far more than necessary.  And we pay the price not only in tax dollars, but in damage to community trust. The best results for public safety happen when strong communities cooperate with prosecutors and police and other public officials.  In many places, voters have rejected the tough-on-crime mindset. Instead, they put their trust in district attorneys who campaigned to address the imbalances in the system, to correct past instances where the system failed, and to use the discretionary power all district attorneys possess to prosecute fewer people.

Which leads to perhaps their most glaring error. District attorneys that are catching criticism have listened to the voters. Then they pledged to fix the system and are doing exactly what the voters elected them to do.

All too predictably, Barr and Rosen return to the tired old argument that a prosecutor who cares about reform disrespects victims. Reformers are shifting their resources away from thefts and less damaging crimes precisely because they want to put more focus on firearms and violent crimes.  That choice of priorities takes victims seriously.  Moreover, by focusing on diversion instead of prosecution for minor and nonviolent offenses, reform prosecutors can help people address the underlying causes of criminal behavior. That makes today’s crime victims — and their communities — safer in the long run.

Barr and Rosen cast the prosecutor as a tough-on-crime warrior who exercises discretion in a few individual cases, while ignoring larger questions about the health of criminal justice.  Reform-oriented prosecutors were elected to improve criminal justice.  They listen to the lessons of history and the values and hopes of their own communities.  It requires a peculiar sort of deafness to argue for the same old prison-centered strategy that has proven too costly over many decades.

The best prosecutors are not warriors — either the tough-on-crime type or the social justice type.  The best prosecutors are problem solvers.

December 28, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Friday, December 27, 2019

Fitting criticisms of unfit attack on Washington DC's proposed Second Look Amendment Act

The revised sentencing provisions of the ALI's Model Penal Code include a section, titled "Modification of Long-Term Prison Sentences," calling upon jurisdictions to allow resentencing of all individuals sentenced to long terms after they have served 15 years in prison.  Senator Cory Booker has introduced a federal Second Look Act which would allow all persons to petition for resentencing after having served at least 10 years in prison.

Against backdrop, the proposed Second Look Amendment Act being considered by the Washington DC Council might look quite modest; it will allow only persons serving lengthy sentences who committed their crimes before age 25 to petition for a reduced sentence after having spending 15 years in prison (and DC law already allows this for those who committed their crimes before age 18).  But this recent Washington Post editorial, headlined "A bill to reduce sentences for violent D.C. felons goes too far," launches an immodest attack on the proposal. The very headline of this editorial had me troubled, as the DC bill does not itself actually reduce any sentences, it just provides a chance for some individual offenders serving extremely long terms to seek sentence reconsideration.

The text of the WaPo editorial is no more accurate.  In a closing paragraph, for example, the editorial asserts that "the measure would embrace a radical rejection of transparency in sentencing and straight dealings with victims."  Huh?  Given that this proposal is less ambitious than what the MPC now urges, there is really nothing "radical" about what this bill proposes.  Plus, the operation of the proposed sentence reconsideration would by entirely "transparent" and should operate with crime victims having an opportunity to be involved in sentencing reconsideration.   (Indeed, an article linked in the WaPo editorial highlights that some victims have been supportive of resentencings in the past.)

Helpfully, I have see two astute criminal justice commentators already busy on Twitter criticizing many more aspects of this WaPo editorial.  Scott Hechinger here has multiple tweets highlighting the problems in the language used throughout the editorial.  And John Pfaff here has multiple tweets highlighting how extreme US sentencing policies and practices are compared to the rest of the world.  Pfaff's tweet thread concludes with this fitting final thought: "the attitudes embodied in this editorial — the cruel punitiveness that doesn’t even require a trace of justification — is why we are where we are, and why we risk staying here indefinitely."

December 27, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, December 26, 2019

"Victims' Rights from a Restorative Perspective"

The title of this post is the title of this new paper authored by Lara Bazelon and Bruce Green recently posted on SSRN.  Here is its abstract:

The criminal adjudicatory process is meant in part to help crime victims heal.  But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims.  For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution.  But these efforts, while important, have not persuaded crime victims to trust criminal process.  For example, sexual assaults remain grossly under-reported and under-prosecuted.  Less than 1 percent of sexual assault crimes result in a felony conviction.  Even the few victims who do receive their promised retributive outcome are not necessarily healed by the process.

Reform efforts seem to presuppose that victims of crime — or victims of particular crimes such as sexual assault — are essentially the same and have essentially the same need, namely, a need for the offender to be criminally prosecuted and sent to prison to serve the longest sentence the law allows.  However, sexual assault victims are a diverse group — racially, ethnically, socio-economically, and with respect to sexual identity – and they suffer varied harms because sexual assault encompasses a wide realm of misconduct and victim-offender relationships or lack thereof.  Even when victims suffer similar harms and come from similar backgrounds, they often have distinct, though sometimes overlapping, needs and objectives.  Some have no desire to participate in the criminal adjudication process at all.  Some will be re-traumatized by a successful criminal prosecution, even with the implementation of procedural reforms promoted by the victims’ rights movement and others.

Proceeding from the premise that victims are a diverse group with differing needs, we focus on victims who might prefer, and be better served by, a non-adversarial process that is centered on their needs, namely, restorative justice.  However much improved, adversarial adjudication directed at convicting and incarcerating offenders risks re-traumatizing victims rather than promoting healing.  It denies victims any significant control over the process, including control over their own narratives. We explore the value of restorative justice processes as an alternative that, in many criminal cases, may be preferable from victims’ perspective.  We acknowledge that restorative justice processes are rarely employed in sexual assault cases in the United States and that prosecutors may have reasons, independent of victims’ perceived interests, for preferring the adversary process, a criminal conviction and imprisonment.  Further, some victims’ advocates regard restorative justice as particularly inappropriate in the context of sexual assaults. Nonetheless, we suggest that when victims voluntarily choose to engage in a restorative justice process, it may be healing, because it gives victims agency in seeking a reckoning that fits with their particular needs and offers possibilities for addressing and repairing the harm that a criminal prosecution cannot.

December 26, 2019 in Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Tennessee Criminal Justice Investment Task Force releases extensive report with extensive criminal justice reform recommendations for the Volunteer State

As reported in this local article, the Tennessee Criminal Justice Investment Task Force recently "released its interim report, detailing problems with Tennessee's criminal justice system that have led to a high recidivism rate and 23 recommendations to fix them. Here is more about the report from the press piece:

Despite spending over a billion dollars a year and sending more people to prison, Tennessee communities are no safer than they were a decade ago.  That's the major conclusion from Governor Bill Lee's criminal justice investment task force....

Lee created the task force through an executive order in March, with the goal to help develop policies to reduce recidivism and improve public safety.  In August, the task force began reviewing the state's sentencing and corrections data, policies, practices, and programs. It also looked at what other states were doing.

Among the task force's key findings:

  • Tennessee's prison population grew 12 percent over the last decade, primarily because of longer sentences and fewer paroles
  • Three out of every four new prisoners in FY 2018 were serving time for non-violent crimes
  • Over half of prisoners released from custody are back in jail within three years
  • Half of local county jails are overcrowded
  • An increasing number of prisoners are women, with the state ranking 11th highest in the nation for female incarceration

With lawmakers set to return to Nashville in less than three weeks, the task force made 23 recommendations. The recommendations include:

  • Expanding access to sentencing alternatives, like probation and treatment programs
  • Help more inmates transition successfully back into society
  • Increase educational opportunities
  • Improve community supervision programs
  • Reduce probation terms
  • Streamline the parole process
  • Rewrite the sentencing code (replacing the current one from 1989)

This full 38-page task force report can be found at this link, and the last dozen pages has an intricate accounting of the 23 recommendations designed to "provide an avenue
for Tennessee to reduce recidivism and improve public safety."  Other states might also find these proposed avenues quite useful

December 26, 2019 in Offense Characteristics, Prisons and prisoners, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, December 24, 2019

"An Intellectual History of Mass Incarceration"

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

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little.  This Article asks, as Americans built the carceral state, what were we thinking?  The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century.  In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects.  For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing.  This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law.  The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents.

December 24, 2019 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Two modern takes on the modern politics of criminal justice reform

I have recently seen these new commentaries that both speak to the interest state of modern criminal justice reform politics:

From The Conversation by Jody Armour, "How being ‘tough on crime’ became a political liability." Excerpts:

Kamala Harris recently dropped out of the presidential race after months of attacks from the left for her “tough-on-crime” record as San Francisco’s district attorney and as California’s attorney general.  A few years ago, the idea that being tough on crime would be a liability — not an asset — was unthinkable for both Democrats and Republicans.

Bill Clinton, during the 1992 presidential race, interrupted his campaign so he could return to Arkansas to witness the execution of a mentally disabled man. During Harris’ 2014 reelection campaign for attorney general, she actively sought — and won — the endorsements of more than 50 law enforcement groups en route to a landslide victory.

But something has changed in recent years. Harris’ failure to gain traction as a presidential candidate has coincided with a growing number of “progressive prosecutors.”  In the past, I would have scoffed at the notion of a progressive prosecutor. It would have seemed like a ridiculous oxymoron.

But in one of the most stunning shifts in American politics in recent memory, a wave of elected prosecutors have bucked a decades-long tough-on-crime approach adopted by both major parties. These prosecutors are refusing to send low-level, non-violent offenders to prison, diverting defendants into treatment programs, working to eradicate the death penalty and reversing wrongful convictions....

Michelle Alexander’s 2010 book, “The New Jim Crow,” deserves some credit for changing the way activists thought about crime and punishment.  Alexander cast mass incarceration as a civil rights crisis by showing that people didn’t simply end up in jail because they were bad people who made poor choices.  Nor did prison populations explode simply because there were more crimes being committed.  Instead, mass incarceration was closely intertwined with race, poverty and government policy.

Among civil rights activists, issues like affirmative action in higher education had been consuming a lot of time, energy and resources.  Alexander’s book helped redirect attention to racialized mass incarceration as a main battlefront in U.S. race relations.  Since its formation in 2013, the Black Lives Matter movement has made criminal justice reform a centerpiece of their activism.

From The Hill by Paul Samuels and Gabrielle de la Gueronniere, "Candidates take note: Strong bipartisan consensus on criminal justice reform."  Excerpts:

From the headlines these days, you might think that there is little that Republicans and Democrats agree on — but that is simply not true.  After decades of failed policies and devastating consequences, Americans on both ends of the political spectrum strongly agree about the need for bold action to reform the nation’s drug and criminal justice policies.  The question is: Will policymakers hear their unified voices urging action?

Polling recently conducted on behalf of Legal Action Center (LAC) found most Americans (71 percent) believe that treatment for addiction to opioids and other drugs should be readily available and affordable for all who need it, including 80 percent of Democrats and 64 percent of Republicans.  Most Americans (67 percent) also believe we should treat addiction to opioids and other drugs more as a health problem than a criminal problem, including 78 percent of Democrats and 55 percent of Republicans.  And there is strong support (61 percent) for expanding programs that send people arrested for drug use to treatment instead of prison.

As the polling makes clear, Americans recognize this essential truth: Addiction treatment is less expensive, more effective and simply more sensible than the current law enforcement approach, which has not worked, is racially biased and has devastated communities.

Nearly two-thirds of Americans (62 percent) believe that we should provide legal protections that help individuals leaving prison reenter society and find employment, housing and educational opportunities, including 71 percent of Democrats and 54 percent of Republicans. A majority of Americans (56 percent) also support sealing non-violent criminal records after people complete their sentences to facilitate their successful reentry into society.

December 24, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, December 23, 2019

Alice Marie Johnson and Mark Holden provide their perspective on FIRST STEP and next steps

Alice Marie Johnson and Mark Holden, two figures who surely played a major role in helping to get the FIRST STEP Act to the finish line, have this new Fox News commentary under the headline "First Step Act working — now here are the next steps in criminal justice reform."  Here are excerpts:

The pursuit of criminal justice reform has done what some might have thought unthinkable in this bitter political environment. Only this could bring together the likes of Snoop Dogg with Donald Trump, Democratic Sen. Cory Booker with Republican Sen. Mike Lee, Kim Kardashian West with a grandmother from Tennessee serving a life sentence for a first-time nonviolent offense, and thousands of families in communities across the United States.

 In the last 12 months, more than 4,000 individuals have rejoined their communities thanks to the First Step Act, and more than 1,600 who were not part of the Fair Sentencing Act of 2010 have had their federal prison sentences reduced.

More than 600,000 people return home and rejoin their communities each year.  They face a myriad of challenges, from acquiring proper identification to finding a job to securing housing and building a supportive network of family, friends and community partners....

We need people in our communities, in groups such as Americans for Prosperity, Cut50, the American Civil Liberties Union, and Prison Fellowship, to unite over where they can make a difference, not on their differences.  That is why we are both working with Stand Together to unite with anyone who seeks to improve our justice system.

We also need partners in business to help individuals take the next step as productive members of society. Across the nation, companies like Koch Industries, Butterball, Uber and others have partnered with the Society for Human Resource Management (SHRM) on the Getting Talent Back to Work initiative, which aims to help businesses recruit, train and hire qualified applicants who might not otherwise get an opportunity with a record.

Criminal justice reforms like the First Step Act have enhanced public safety and reduced crime and recidivism across the country.  Look at Pennsylvania and Utah, where lawmakers recently enacted clean slate legislation that has enabled millions of eligible people to have their records expunged.  Other states are considering similar proposals, with the potential to open opportunities for millions more.

States that have implemented data-driven prison and sentencing reforms, from Michigan to Georgia to South Carolina to Texas and beyond, have reduced crime while giving people opportunities to improve their lives and their communities.  In the Lone Star State alone, crime rates have dropped to some of their lowest since the 1960s while saving taxpayers $3 billion.    They may have come for the savings, but they’re staying for the salvation.  Together, we can take the next step, and we must.

December 23, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Another round of headlines highlighting continuing controversies surrounding former Kentucky Gov Bevin's pardon flourish

In this post nine days ago, I rounded up some representative headlines and stories covering former Kentucky Gov Matt Bevin's considerable and controversial clemency grants as he relinquished power in December.  As I mentioned before, there are many elements to what Bevin did with his clemency pen, and the resulting controversies have continued to rage.  Once again, I will try to use headlines and links to numerous pieces to provide even more flavor of the grants and some commentary that has followed:

From the Louisville Courier Journal, "Working weekends, late nights, Gov. Matt Bevin rushed to issue hundreds of pardons"

From the Louisville Courier Journal, "Former Kentucky Gov. Matt Bevin defends controversial pardons, blames outrage on 'political opportunism'"

From USA Today, "Republican mega-donor urged ex-Kentucky Gov. Matt Bevin to pardon convicted killer"

From the New York Times, "Matt Bevin Drew Outrage Over His Pardons. These Governors Have, Too."

From WHAS11, "Man pardoned by Bevin, gives back to Chickasaw community: Tod Moore created New Day Ministries while in prison and handed out new bikes to kids in time for Christmas"

From the Louisville Courier Journal, "Opinion: Feds should investigate child molesters pardoned by Bevin"

From the Lexington Herald Leader, Opinion: "Don’t let Bevin’s pardons slime the legislature’s important work on criminal justice reform"

From Patheos, "On Bevin’s Pardons and Prison Abolitionism"

I would need dozens more links to adequately cover all the important facets of this story, and so I will conclude with a link to this effective piece titled simply "A lawyer looks at Bevin’s pardons." The piece, which is authored by Jazmin Smith, merits a read in full and it starts and ends this way:

Kentucky is one of only three states that have no form of civil rights restoration by statute. If you listen to My Old Kentucky Podcast, you’ve only heard me say that 100 times. That’s why pardons, commutations, and executive orders are so important. Only our executive has the ability to restore a person’s rights....

A few things have been really frustrating about Pardon-Gate. Pardons are good and so many people are worthy of them. This negativity may make executives less willing to use their pardon power and I think the reaction, especially by those who claim to be progressive or passionate about criminal legal reform, is imprudent and bad for the reform movement.

The way the media treated the pardons is also upsetting. The NPR headline “On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More” is extremely unhelpful, as is the Courier-Journal article that decided the 12 “most controversial pardons.” Many stories in the media also featured only interviews from the prosecutors on the case, and of course, the prosecutor wants the person they prosecuted to be in prison. Choosing to feature only interviews from prosecutors in articles about pardon reactions is just bad and lazy journalism.

Finally, Matt Bevin pardoned many people who have turned their lives around and have done awesome work, like Amanda Hall at the ACLU, and that is getting overshadowed. Horrific comments and racial data aside, I’m still glad he pardoned these people. They all served time, and though maybe some were more deserving than others, I don’t think the Commonwealth is less safe than it was before.

While I think those pardons are good, Bevin is definitely not blameless. Pardoning your friend’s kid and people who financially supported you is a super easy way to get the media to attack you. The huge reaction has been frustrating, but Bevin is the one to blame for creating it. The fact remains that Kentucky is incarcerating people too often and for too long. Any limits on the pardon power that come from this will be a real shame.

December 23, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noticing that little has been done since Prez Trump's executive order to establish a "Commission on Law Enforcement and the Administration of Justice"

This new Washington Post piece, fully headlined "Trump signs order creating national commission to study police and justice system: The composition of the commission is unclear; prosecutor and defense groups not yet contacted," highlights the interesting reactions (and lack of reactions) to this executive order that Prez Trump signed in late October 2019.  Here are excerpts:

With little fanfare, President Trump in late October signed an executive order creating the Commission on Law Enforcement and the Administration of Justice.  The commission is one that police and civil rights groups have sought for years, looking for big ideas on how to approach national problems confronting law enforcement, such as diversifying police forces, addressing racial inequities and using technology to improve crime-fighting.

An identically named panel was formed by President Lyndon B. Johnson in 1965, and led to advances such as the creation of the 911 emergency call system and improved training for law enforcement.  A bill to once again create such a commission was introduced in the Senate in 2017, and again this year, but never moved even though senators on both sides of the political aisle declared their support and it didn’t seem particularly controversial.  The NAACP Legal Defense Fund, the National Urban League and the Leadership Conference on Civil and Human Rights also endorsed the bill as a way to enact criminal justice reform on a large scale.

So police groups such as the International Association of Chiefs of Police and the Fraternal Order of Police turned to the White House for help.  “From the IACP’s perspective,” said Terry Cunningham, deputy executive director of the IACP, “we honestly didn’t care whether it got done through legislation or an executive order, we just wanted to see it come to fruition. It’s an opportunity to recalibrate everything we do and how we do it in policing.”  He noted that President Barack Obama’s 21st Century Task Force on Policing in 2015 called for “the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform.”

Jim Pasco, executive director of the National Fraternal Order of Police, said the police union had opposed such a commission “and effectively blocked it legislatively, because there was no provision for a rank-and-file representative on the commission. Ninety-four percent of law enforcement members are state and local, and 99 percent are rank-and-file, they should be represented.” He said the IACP had helped create the commission, “but we did extract a commitment that we’ll be on it.”

But where the legislation called for co-chairs appointed by the president and Congress, and required at least four law enforcement and two tribal law enforcement officials, Trump’s executive order merely states, “The attorney general shall determine the composition of and procedures for the functioning of the commission,” to include naming the chairman and also for the attorney general to invite elected state, local and tribal officials.

The composition of the commission hasn’t been announced, and Cunningham said, “We want to make sure we have people that are not in lockstep with law enforcement. That gives the commission the credibility that it needs to create a living, breathing document.” A number of groups that might be expected to be part of the discussion said they had not yet been invited, including the National District Attorneys Association, the National Association of Criminal Defense Lawyers, the NAACP Legal Defense Fund, the Leadership Conference on Civil and Human Rights and the Major Cities Chiefs Association, a much smaller group than the IACP that focuses on issues specific to large cities. Art Acevedo, the Houston police chief and head of the Major Cities Chiefs, said, “We fully anticipate being part of it.”

The legislation envisioned the commission having 18 months to complete its work, but the president’s executive order requires a report to be completed within a year of the Oct. 28 signing date, meaning it has roughly 10 months left to work.

Supporters of the legislation aimed to create a body to discuss challenges such as overburdened courts, unsustainable incarceration costs, national security, prisoner reentry, victims’ rights and civil rights and liberties. But the new executive order is more police-centric, calling on the commission to examine such issues as challenges police face as they encounter those suffering mental illness and substance abuse and the homeless. It also will look at recruitment and training of police, physical safety and health of police officers, and both the benefits and challenges to law enforcement of technological advances.

The order also calls on the commission to study “the need to promote public respect for the law and law enforcement officers” and “refusals by state and local prosecutors to enforce laws or prosecute categories of crimes.”

“The thrust of the order,” said Nina J. Ginsberg, a Virginia-based lawyer who is president of the defense lawyers’ association, "begs the question as to how interested this commission will be in solving the deep and structural problems in America’s criminal justice system, as opposed to simply delivering on certain law enforcement requests.” Ginsberg said the order “altogether fails to acknowledge or propose solutions to critical criminal justice issues like mass incarceration, systemic racism, disparate policing of minority and poor communities” and “reads like a road map for repeating precisely the same mistakes that brought America’s criminal justice system to its current, abysmal state.” She said the defense group stood ready to help....

Cunningham said he expected the commission would create working groups on a wide range of topics. “It’s not just policing, it’s the broken criminal justice system,” Cunningham said.  He said the working groups would look at how police handle mental health calls and how other social service agencies can help.  He said the commission also needs to examine not only using new technology, but figuring ways to overcome technology that is used to commit crime, as well as recruitment of new officers and getting more women and minorities to put the badge on. “Everything the working groups do,” Cunningham said, “they have to find a bipartisan way in Congress to implement all of these things. We’ll have their report, but how do you get it funded?”...

Cunningham said the Justice Department would commit significant resources to support the commission.  He said Dean M. Kueter Jr., an adviser in the Office of Legislative Affairs at the Justice Department, would be the commission’s executive director, and Tim Shea, senior counsel to Attorney General William P. Barr, would also work with the commission. The Justice Department declined to comment for this story.

Because this executive order does not once mention sentencing or punishment or incarceration, I do not think this still-to-be-constituted Commission is likely to do much more than address a variety of police-focus concerns.  That said, there is plenty of work needing to be done to address the many modern challenges of modern policing, and I want to be hopeful that this Commission can and will be able to provide an informed and productive perspective on needed reforms to this important aspect of our criminal justice system.

December 23, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Thursday, December 19, 2019

Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty?

The question in the title of this post is prompted by this remarkable new brief story in the Columbus Dispatch headlined "Householder says legislature may dump Ohio’s death penalty law." Here are the details:

House Republicans have started talking about whether the state should keep a death penalty law on its books if Ohio can’t buy the cocktail of drugs needed to carry out those sentences. “We don’t know that there is an option right now,” Ohio House Speaker Larry Householder told reporters Thursday. “We may have a law in place that allows for a death penalty that we can’t carry out. And the question is: Are the costs that are associated with that and retrials and all these things, at the end of the day, is it worth that?”

Ohio didn’t execute anyone in 2019, but the Buckeye State ranks seventh in the nation for number of people on death row. Republican Gov. Mike DeWine pushed back six execution dates this year, in part because of the problems Ohio has had with drug companies that are increasingly adamant that their drugs not be used in executions.

“We have been talking about, you know, is there support today to get rid of the death penalty or not,” Householder said. “We’ve been having those discussions.” But the speaker made clear that as of yet there’s been no resolution on the best way forward.

Though Ohio is still a bellwether state and though I still think of it as a purple state, its General Assembly is very red as Republicans outnumber Democrats in the Ohio Senate 24 to 9 and in the Ohio House of Representatives 61 to 38.  Consequently, it is a big story and a sign of the times that such a GOP-dominated legislature is even talking openly about possibly repealing the death penalty.  I doubt repeal will really move forward anytime soon, but it is still very telling and significant that GOP state leaders seem more interested in talking about repeal than in talking about possible alternative execution methods.

December 19, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum

A helpful reader made sure I did not miss this How Appealing post flagging the fascinating split Second Circuit panel ruling yesterday in US v. Manzano, No. 18-3430 (2d Cir. Dec. 18, 2019) (available here).  The start of the majority opinion sets forth the basics:

Respondent Yehudi Manzano stands charged with production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment, and transportation of child pornography, which is punishable by a mandatory minimum term of five years’ imprisonment.  Shortly before trial, he filed motions requesting permission to argue for jury nullification — in essence, that the jury should render a verdict not in accordance with the law — and to present evidence regarding the sentencing consequences of a conviction in this case.  On the eve of trial, the district court (Underhill, Chief Judge) granted Manzano’s request to argue jury nullification, but reserved decision on the admissibility of evidence regarding the sentencing consequences of a conviction.

The government now seeks a writ of mandamus directing the district court to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any evidence of sentencing consequences at trial.  Applying settled law in this circuit, we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification, and that the other conditions for mandamus relief are satisfied.  We further hold that, at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.

Here is the start of Judge Barrington Parker's partial dissent:

We are fortunate that the prosecutors in this Circuit nearly always bring a high degree of professionalism, good judgment, and common sense to bear in the exercise of their responsibilities.  This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power.  Charging decisions are, of course, by and large the exclusive province of prosecutors. 

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent.  The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted.  But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back.  I believe that most conscientious jurists would have done the same.  I have no difficulty concluding that Judge Underhill was right to do so.  “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”  United States v. Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (quoting Daye v. Attorney Gen., 712 F.2d 1566, 1571 (2d Cir. 1983)).  They should use these powers “to see that the waters of justice are not polluted” and “to protect the integrity of the federal courts.” United States v. Payner, 447 U.S. 727, 744 (1980); accord United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017).  Their supervisory powers are not restricted to the protection of explicit constitutional rights.  McNabb v. United States, 318 U.S. 332, 341 (1943).  The powers exist “in order to maintain respect for law” and to “promote confidence in the administration of justice.”  Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting); accord Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); United States v. Getto, 729 F.3d 221, 229 (2d Cir. 2013).  The supervisory powers should be sparingly exercised.  HSBC, 863 F.3d at 136.  Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times.  Payner, 447 U.S. at 737.  But since Payner, we have recognized that within their supervisory powers, courts should “not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.” Johnson, 221 F.3d at 96 (quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)). This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an “often decisive role.” Id.

Whether Judge Underhill went too far is debatable.  But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.  I concur to the extent that the majority denies a writ directing the District Court to exclude at trial evidence of sentencing consequences.

This local article about the ruling reports that the defendant's lawyer is going to seek en banc review. I am not optimistic the full Second Circuit will take up this matter or resolve it different, but I would like to see these issues get a lot more attention particularly in light of recent Sixth Amendment jurisprudence.  Notably, in the recent Haymond case, Justice Gorsuch spoke broadly about the Framers' vision of the jury right and explained: "Just as the right to vote sought to preserve the people's authority over their government's executive and legislative functions, the right to a jury trial sought to preserve the people's authority over its judicial functions." But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?

December 19, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, December 18, 2019

After serving more than 13 years in federal prison, former WorldCom CEO Bernie Ebbers secures compassionate release thanks to FIRST STEP Act

Regularly readers know that I have been regularly extolling the significance of the FIRST STEP Act's changes to the so-called compassionate release provisions of federal law. In many prior posts I have stressed the provision which now allows federal courts to directly reduce sentences under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons; this provision is such a big deal because, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.

Today, as reported in this Bloomberg piece, the highest-profile defendant to date has benefited from this FIRST STEP Act change: "Bernard Ebbers, the former WorldCom Inc. chief executive officer, was ordered freed from prison, almost eight years before he was due to be released." Here is more from the press piece:

A federal judge in Manhattan on Wednesday granted compassionate release to Ebbers, who is serving a 25-year sentence for an $11 billion fraud that bankrupted the company. U.S. District Judge Valerie E. Caproni said Ebbers’s health is failing and that letting him out early doesn’t minimize the impact of his punishment.

Relatives of the 78-year-old reacted with jubilation in court. “We’re elated and just very grateful not only for Mr. Ebbers but especially for his family,” lawyer Graham Carner said after the hearing. “All they wanted was for him to live out his time with them.”

Ebbers has served more than 13 years for overseeing the fraud, which was the biggest in U.S. history at the time. He was scheduled to be released in July 2028 with credit for good behavior. It isn’t immediately clear when he will leave prison.

Attorneys for Ebbers asked Caproni in September to free him due to his many medical problems, including macular degeneration that has left him legally blind and a heart condition that makes him vulnerable to cardiac arrest. The U.S. Bureau of Prisons had denied a request from Ebbers’s daughters for compassionate release under the 2018 First Step Act, which allows some federal inmates to be released if they are over 60 years old and face terminal illnesses.

While Caproni noted that records “suggest some exaggeration of his mental condition” that led her to believe Ebbers was trying to manipulate her, she also expressed concern that he’s malnourished and appears to have lost almost 60 pounds since last year.

Some of many prior related posts:

December 18, 2019 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

SCOTUS grants cert on a couple more criminal justice matters to round out 2019

As reported here at SCOTUSblog, late last week the Supreme Court "added five new cases, for a total of four hours of argument, to their docket for this term .... but this morning the justices added five more new cases, again for a total of four hours of argument, to their docket."  Two of the grants involve criminal justice matters, and here are descriptions of those via SCOTUSblog:

In Torres v. Madrid, the justices will weigh in on what it means to be “seized” for purposes of the Fourth Amendment’s ban on unreasonable seizures.  The case arose when Roxanne Torres dropped off a friend at the apartment complex where police in Albuquerque were attempting to serve an arrest warrant on a different person.  When police approached her car, Torres — not realizing that they were police officers — believed that she was about to be the victim of a carjacking and drove her car forward.  The officers shot her twice while she was still in her car; Torres managed to continue to drive away from the scene and was later treated at a hospital for her injuries.  When Torres sued the officers for using excessive force, the U.S. Court of Appeals for the 10th Circuit threw out her case.  It ruled that Torres had not been “seized” because she continued to drive away after being shot, rather than being arrested.  Torres asked the justices to review that ruling, which they agreed to do today....

And in Pereida v. Barr, the justices will decide whether a noncitizen who is convicted of a state crime can apply for relief from deportation — such as asylum or cancellation of removal — when the state-court record is ambiguous about whether his conviction corresponds to an offense listed in the Immigration and Nationality Act.  The question arises in the case of Clemente Pereida, who was convicted in Nebraska of “attempted criminal impersonation,” a misdemeanor for which he was fined $100.  The dispute centers on whether the conviction was a “crime of moral turpitude,” which would bar Pereida from applying for relief from deportation.  The federal government agreed with Pereida that review should be granted, although it agrees with the U.S. Court of Appeals for the 8th Circuit that Pereida is not eligible for relief from deportation.

December 18, 2019 in Who Sentences | Permalink | Comments (0)

AG William Barr announces "Operation Relentless Pursuit" to combat violent crime in seven US cities

This new press release from the Justice Department reports that today "Attorney General William P. Barr announced the launch of Operation Relentless Pursuit, an initiative aimed at combating violent crime in seven of America’s most violent cities through a surge in federal resources."  Here is more from the press release:

Joined at a press conference in Detroit, Michigan, by Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Acting Director Regina Lombardo, Drug Enforcement Administration (DEA) Acting Administrator Uttam Dhillon, FBI Director Christopher A. Wray, and U.S. Marshals Service Director Donald W. Washington, Attorney General Barr pledged to intensify federal law enforcement resources into Albuquerque, Baltimore, Cleveland, Detroit, Kansas City, Memphis, and Milwaukee — seven American cities with violent crime levels several times the national average.

“Americans deserve to live in safety,” said Attorney General William P. Barr.  “And while nationwide violent crime rates are down, many cities continue to see levels of extraordinary violence. Operation Relentless Pursuit seeks to ensure that no American city is excluded from the peace and security felt by the majority of Americans, while also supporting those who serve and protect in these communities with the resources, training, and equipment they need to stay safe.”

“The men and women of ATF are deeply committed to and focused on reducing crime gun violence in our communities,” said ATF Acting Director Regina Lombardo.  “We are proud that our efforts have significantly contributed to the historic reductions in violence that our nation has realized in recent years.  Operation Relentless Pursuit combines the resources of ATF, DEA, FBI, and U.S. Marshals to support our state and local law enforcement partners in those cities that — regrettably — continue to be plagued by rates of violent crime that are simply too high.  Through Relentless Pursuit, we pledge to hold accountable the trigger-pullers, firearm traffickers, violent criminals and those who supply them the guns to terrorize our communities.  ATF will aggressively utilize every available tool, including our crime gun enforcement teams, National Integrated Ballistic Information Network and firearms tracing to identify, investigate and support the prosecution of the most violent firearm offenders.”

“Drug traffickers — including cartels and street gangs — will stop at nothing to turn a profit, often using violence and intimidation to expand their reach,” said DEA Acting Administrator Uttam Dhillon.  “This targeted surge of resources will further strengthen our ability to work with our federal, state, and local partners to pursue the worst offenders and make our communities safer.” 

“The FBI remains committed to providing our specialized expertise and resources to assist our federal, state and local partners fighting violent crime,” said FBI Director Christopher A. Wray.  “We are here today to reaffirm our dedication to reducing violent crime in the cities selected for Operation Relentless Pursuit to combat the threats that arise from gangs and criminal enterprises that drive violence in the communities we are sworn to protect.”...

The operation will involve increasing the number of federal law enforcement officers to the selected cities, as well as bulking up federal task forces through collaborative efforts with state and local law enforcement partners.  The surge in federal agents will be complemented by a financial commitment of up to $71 million in federal grant funding that can be used to hire new officers, pay overtime and benefits, finance federally deputized task force officers, and provide mission-critical equipment and technology.  

December 18, 2019 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Tuesday, December 17, 2019

Rick Gates gets sentence of 45 days in jail and a fine and community service (while co-defendant Paul Manafort has five more years in prison)

As reported in this CBS News piece, "Rick Gates, the former Trump campaign official and onetime business partner of Paul Manafort, was sentenced to 45 days in jail on counts of conspiracy and lying to federal investigators." Here is more:

Gates, 47, appeared in federal court in Washington to learn his sentence Tuesday. U.S. District Judge Amy Berman Jackson sentenced him to 36 months probation and 45 days behind bars, which he will be allowed to serve on weekends or under a schedule set by probation officers. He must also pay a fine of $20,000 over the course of 20 months, and complete 300 hours of community service.

Gates was one of six Trump associates charged in connection to special counsel Robert Mueller's investigation into Russian interference in the 2016 election. He pleaded guilty to two counts in February 2018, admitting he lied to federal investigators and helped Manafort conceal millions of dollars in overseas payments. Gates agreed to cooperate with the government, becoming the star witness in high-profile trials of three others charged in the Mueller probe: Manafort, Roger Stone and Greg Craig.

Because of his extensive cooperation with the government, federal prosecutors recommended that Jackson sentence Gates to probation, a much lighter punishment than the maximum 10 years in prison the charges allowed under federal guidelines.

Gates was Manafort's right-hand man and became his deputy when Manafort was named chairman of the Trump campaign in 2016. After Manafort was forced to step down over revelations about his work in Ukraine, Gates stayed on, becoming a liaison between the campaign and the Republican National Committee. He helped plan President Trump's inauguration before leaving for a job with a pro-Trump outside group.

At Manafort's trial on charges of bank fraud and other financial crimes, Gates provided crucial testimony against his former boss, telling jurors Manafort had instructed him to forge financial documents and IRS forms.

As folks may recall, Manafort was convicted at trial of some counts, pleaded guilty to another set of charges and he ultimately received 7.5 years in total imprisonment after two sentencings.  And, according to the Bureau of Prisons inmate locator, Manafort now has a release date of Christmas Day 2024.

Prior related post:

December 17, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Monday, December 16, 2019

"Algorithmic Risk Assessment in the Hands of Humans"

The title of this post is the title of this new empirical paper authored by Megan Stevenson and Jennifer Doleac.  Here is its abstract:

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing.  We find that judges' decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores.  However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less.
Risk assessment's failure to reduce recidivism is at least partially explained by judicial discretion in its use.  Judges systematically grant leniency to young defendants, despite their high risk of reoffending.  This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability.  Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors.  Since one of the most important inputs to the risk score is effectively off-limits, risk assessment's expected benefits are curtailed. 
We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most. We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm.  Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23.  In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.

December 16, 2019 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, December 15, 2019

"The progressive prosecutor movement is great — but without funding public defenders it won't work"

The title of this post is the headline of this new Salon commentary authored by Premal Dharia.  Here are excerpts:

This growing support for public defense funding highlights a glaring missed opportunity: the inclusion of this issue on the policy platforms of the growing number of so-called progressive prosecutors. In counties and cities around the country, campaigning and newly elected prosecutors have highlighted plans to end cash bail, increase diversion programs, stop prosecuting certain drug or minor cases, and stop seeking the death penalty.  These policy changes are all important. But many of them won’t have nearly the impact they could because a critical piece of the infrastructure is missing: resourced public defenders.  If prosecutors truly want to bring about meaningful change, they must make the funding of public defenders a centerpiece their platforms. Indeed, the failure to include indigent defense funding in platforms for progressive change lays bare the failure to envision what is actually needed for change to happen.  Public defenders are essential to implementing the policy changes proposed by so many prosecutors. They are the other half of the adversarial system; for every lever set up by prosecutors, they are necessary for pushing or pulling it....

Public defenders are on the front lines of the devastation wrought by our system of mass criminalization and they are guided by an unwavering dedication to the very people being devastated.  The failure to fund them is part and parcel of the very same culture that allows excessive fines and fees to be imposed on the poor and money bail systems to flourish in courthouses around our country.  It’s time that the people claiming to want reform — including a new wave of prosecutors and hopeful prosecutors around the country — advocate for the resources that are essential to making real change happen.

December 15, 2019 in Who Sentences | Permalink | Comments (3)

Saturday, December 14, 2019

A Kentucky clemency controversy captured in headlines

Just under two decades ago, Prez Bill Clinton created a huge stir when granting 140 pardons and a few commutations on his very last day of office.  That controversy comes to mind as I see news about former Kentucky Gov. Matt Bevin's clemency spree as he relinquished power in the last few weeks.  This Kentucky clemency controversy has many elements, so I figured I would use headlines of numerous press pieces to provide an overview:

From NPR, "Outgoing Kentucky Gov. Matt Bevin Issues 428 Pardons, Many Which Are Controversial"

From CNN, "Former Kentucky governor pardons convicted child rapist"

From the Louisville Courier Journal, "Kentucky governor pardons convicted killer whose brother hosted campaign fundraiser for him"

Also from the Louisville Courier Journal, "Senate President Robert Stivers wants feds to investigate Matt Bevin's pardons"

From The Hill, "McConnell: Bevin pardons 'completely inappropriate'"

Also from The Hill, "Former Kentucky Gov. Bevin defends pardons amid backlash"

Also from NPR, "Kentucky Lawmaker Wants Constitutional Amendment to Reform Governor's Pardoning Power"

December 14, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Terrific new editorial about Ohio Gov DeWine's terrific new "Expedited Pardon Project"

Because I am directly involved in Ohio Governor Mike DeWine's exciting new "Expedited Pardon Project," I had an inkling I would like this new Columbus Dispatch editorial when I saw the headline "For those deserving pardons, relief is better sooner than later."  Wonderfully, not only does the editorial rightly praise Gov DeWine for his vision and leadership, it also captures in a few paragraphs why this new program is so valuable for everyone involved.  I recommend the editorial in full, and here are excerpts:

We welcome a movement in Ohio to make the criminal justice system more compassionate and pragmatic, and the Expedited Pardon Project recently announced by Gov. Mike DeWine is another positive development.  The goal is to make it easier and much faster for nonviolent former felons who have stayed out of trouble for at least a decade to receive formal pardons.

It’s not just a matter of pride; a felony conviction is a shackle that can keep people from reaching a good job, safe housing, an education loan or any number of things that could make the difference between getting ahead and giving up....

DeWine’s idea is to enlist the help of law students and educators at Ohio State University’s Moritz College of Law and the University of Akron School of Law to vet applications and zero in on those who do have a chance: those who have committed no further crimes for at least 10 years; have paid any court-ordered fines and restitution; are working or have a good reason not to be; and have done volunteer or community service work. Those whose applications meet the criteria are expected to get a hearing before the parole board within six months.

The law schools deserve thanks for lending much-needed manpower to such a worthy cause, but they also are likely to benefit. Delving into those applications should give students and seasoned lawyers alike a better understanding of how the criminal justice system affects the lives of the human beings caught up in it.  That can’t help but make for more-enlightened lawyers and judges down the road, and that benefits everyone....

Punishment for a single nonviolent criminal episode should end when the prison sentence ends. Society has nothing to lose and much to gain by helping reclaim lives.

Related posts and links:

December 14, 2019 in Clemency and Pardons, Who Sentences | Permalink | Comments (0)