Tuesday, May 21, 2019

Shouldn't it now constitutional problematic for extreme LWOP sentences to be preserved after legislative changes to three-strikes laws?

The question in the title of this post might be directed to some important federal cases in the wake of the FIRST STEP Act.  But this morning the question comes to mind due to this new AP article discussing state sentencing changes not made retroactive in Washington.  The article is headlined "‘3 strikes’ sentencing reform leaves out Washington inmates," and here are the disconcerting details:

A small group of inmates, disproportionately black, are set to stay in Washington state prisons for life — left out of the latest in a multi-year wave of reforms easing tough-on-crime “three strikes” laws around the U.S.

At least 24 states including Washington passed such laws during the 1990s, embracing tough-on-crime rhetoric. But nearly half have since scaled them back amid concern that habitual but less-violent offenders were being stuck behind bars for life with hardcore felons.

Washington’s 1993 three-strikes law was among the first and stands out as among the nation’s strictest. But lawmakers targeted it for reform this year with legislation removing second-degree robbery — generally defined as a robbery without a deadly weapon or significant injury — from the list of crimes qualifying for cumulative life sentences.

But while the original reform included a retroactive clause, making inmates sentenced under the old law eligible for resentencing, an amendment pushed by a prosecutors’ group cut out retroactivity. Washington governor and Democratic presidential contender Jay Inslee signed the changes into law April 29.

That means about 62 inmates convicted of second-degree robbery will be left serving life sentences, according to state records, even after judges stop “striking out” new offenders convicted of the same crimes. About half are black, despite African Americans making up only 4% of Washington’s population.

Under the original bill, the inmates with a robbery “strike” would have had the opportunity to have their life sentences re-examined by judges — but now they won’t. Supporters of the amendment have said even less-serious robberies can leave emotional scars, and that prosecutors might have set aside more serious charges because they knew second-degree robbery convictions would mean life in prison for those offenders.

But inmates among the 62 described frustration that offenders with similar records may face drastically shorter sentences going forward. “It’s just wrong on its face, to make people rot in prison for the rest of their life on a sentence that doesn’t even exist anymore,” said John Letellier, 67, whose 1999 fast food restaurant robbery earned him his third strike.

The push to take out the reform’s retroactivity clause emerged from the Washington Association of Prosecuting Attorneys, a group that represents prosecutors. Russell Brown, the group’s director, said he reviewed most of the cases listing second-degree robbery as the third strike, and believed that prosecutors in many probably refrained from seeking more serious charges because of the guarantee the charge — known in legal circles as “Rob 2” — would count as a third strike. But he acknowledged that he never confirmed his suspicions with any of the prosecutors who handled the cases....

In Washington, second-degree robbery has one of the lowest seriousness levels of any crime on the three-strikes list, hypothetically encompassing anything from demanding money from a clerk to snatching a purse. At least 11 states including Washington have eased their three strikes laws since 2009, often removing property crimes from “strike” lists or restoring discretion to judges over previously mandatory life sentences.

But lawmakers have also often been reluctant to make the three-strikes reforms retroactive: Out of the 11 only California has included such a clause...

In phone and email interviews, inmates among the 62 in Washington described how the reform raised their hopes — and the amendment dashed them. Among them is Devon Laird, age 54 and serving life on a robbery third strike. Convicted of snatching a wallet from an elderly man outside a drugstore in 2007, Laird’s court records include convictions for violent crimes in his early 20s, but also testimony portraying him as attempting to escape a past that included being stabbed at 14 and shot twice before age 21. “When they said it wasn’t retroactive, it really set in on me that, man, I got life,” said Laird.

Cheryl Lidel, 60, is also serving life for a 2010 robbery after being convicted of other robberies and theft. She described her crimes as driven by substance abuse that began shortly after she was sexually assaulted as a young girl. In charging documents for her third-strike robbery, prosecutors said Lidel was going through heroin withdrawal when she robbed a Subway blocks from a police station, sticking her hand in her pocket to imitate a gun. She then asked a taxi to take her to an area known for drug dealing. “The first time I came here I was 23 years old, and in March of this year I turned 60,” Lidel said.

While it’s hard to say exactly how much time any of the 62 would have faced without their robbery charges counting as strikes, few would have faced life.... According to state guidelines, the maximum for second-degree robbery, given to the highest-level offenders, is less than seven years....

Some of the 62 might not have received shorter sentences because of other serious crimes on their record, including at least eight with early robbery convictions but a final strike for murder. But nearly half the inmates on the list received a third strike only for some form of robbery.

The bill’s sponsor, Democratic Sen. Jeannie Darneille, said before the state’s legislative session ended that she did not want to change her bill with the amendment killing retroactivity but that it would have been at risk of failing without support from law enforcement or prosecutors because lawmakers would have feared being labeled soft on crime.

The particulars of this story are all too familiar, and long-time readers know that I have long argued that the standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  (My full perspectives on "sentence finality" and retroactivity appear in a law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in some prior posts reprinted below).   

Moreover, as the question in the title of this post highlights, I think these issues have constitutional implications when extreme sentences are in play.  Notably, many state courts have ruled that it would be unconstitutional to carry out a death sentence for a person long ago sentenced for murder after a state legislature prospectively abolished the death penalty.  Given that the Supreme Court has in the last decade applied my capital Eighth Amendment precedents to the application of LWOP sentences, it seems reasonable to argue that state courts should find it unconstitutional to not reconsider an extreme LWOP sentence for a person long ago sentenced to LWOP on a basis that a state legislature has prospectively abolished.

(Significantly, and in response to the concerns so often raised by prosecutors in this retroactivity setting, a narrow version of the constitutional claim here might be just that a past LWOP sentence needs to be reexamined, not automatically changed.  Under such an approach, prosecutors would be able to argue against a sentence change by bringing forward evidence that the defendant could and would have gotten an LWOP sentence on grounds other than those changed by the legislature.  But at the very least, I think the constitutional norm should be reexamination of now-changed sentences, rather than their harsh preservation. )

Some (of many) prior posts on sentencing finality:

May 21, 2019 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, May 20, 2019

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Exciting agenda for "Rewriting the Sentence Summit on Alternatives to Incarceration"

In this post a few weeks ago, I flagged this great event, titled ""Rewriting the Sentence Summit on Alternatives to Incarceration," taking place next month in New York City hosted by Columbia University and The Aleph Institute at Columbia Law School.  In my prior post, I spotlighted the many great speakers scheduled to be at the event (as detailed at this link), and noted that the event website provides this overview.  I now see that this link provides the detailed schedule for all the panels, and I think sentencing fans will find interesting and important every one of the planned panels.  Here are just a few panel title from the detailed agenda to whet appetites (click through to see all the big names under each panel title):

A New Wave of Prosecutorial Thinking: Views of Recently Elected District Attorneys

A Federal Legislative Look: The First Step Act, and the Next Steps

Risk Assessment: A Feature or a Bug? Perspectives on A Complex Debate

Sentencing Second Chances: Addressing Excessive Sentencing With Escape Valves

The Role of Mercy and Dignity in Criminal Justice: From Restoration to Clemency

May 20, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Waiting for Godot ... Gundy

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

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

VLADIMIR: We can't.

ESTRAGON: Why not?

VLADIMIR: We're waiting for Gundy.

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

VLADIMIR: What?

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

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

ESTRAGON: What others?

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

ESTRAGON: What about all the capital cases?

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

ESTRAGON: It should be here by now.

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

ESTRAGON: And if it doesn't come?

VLADIMIR: We'll come back next decision day.

ESTRAGON: And then the decision day after that.

VLADIMIR: Possibly.

ESTRAGON: And so on.

VLADIMIR: The point is—

ESTRAGON: Until Gundy comes.

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

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

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

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

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

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

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

Sunday, May 19, 2019

Spotlighting eagerness to elect state judges as well as prosecutors committed to criminal justice reform

This new Atlantic article, headlined "The Search for Progressive Judges," highlights how activists who have sought to elect a new wave of progressive prosecutors are now turning attention to judicial elections. Here are excerpts:

It used to be unheard of for Philadelphia judges to reject a negotiated sentence in these resentencings — until Larry Krasner, arguably the most progressive prosecutor in the country, took over the city’s district attorney’s office in January 2018 and started delivering on a promise to minimize incarceration.  In response, several Philadelphia judges have shut down his attempts to keep people out of prison or release them earlier.... Recently, some judges reportedly declined to consider an initiative, developed by Krasner, to seek shorter probation sentences.

After watching these developments with growing dismay, Rick Krajewski, an organizer for a leftist political group called Reclaim Philadelphia, convened about 30 Philadelphia activists in January at the offices of a prisoner-advocacy organization to float a radical proposal.  Many of them had been instrumental in getting Krasner elected.  But clearly, electing a progressive prosecutor hadn’t been enough.  This time, Krajewski wanted to persuade them to spearhead a rare grassroots campaign for the typically sleepy judicial race....

Krasner, elected in 2017, came to office during a nationwide wave of reform-minded prosecutors: In Houston, Chicago, Brooklyn, and other left-leaning cities, prosecutors have been winning races on platforms to end mass incarceration.  A prosecutor has tremendous sway when, for example, suggesting bail, negotiating plea agreements, and recommending sanctions for parole and probation violations.  But judges and magistrates have the final say — and their decisions have been thrown into relief in jurisdictions that have elected reformist prosecutors.  “What we are seeing is that the judges are deciding to take it upon themselves to be the obstacle for a progressive district attorney,” says Robert “Saleem” Holbrook, a former juvenile lifer who now works as a policy adviser at Amistad Law Project, a prisoner-rights advocacy organization.

Recently, justice-reform advocates in a couple of other places have also turned their eye to judges.  In Harris County, Texas, which includes Houston, voters swept out the old guard to completely flip all 59 contested seats in civil, criminal, family, juvenile, and probate courts from Republican to Democrat; the new judges are preparing to stop detaining people accused of low-level crimes who aren’t able to post cash bail.  Organizers in Texas are starting to scout for judicial candidates in Bexar County, which includes San Antonio, and in Dallas County, who support scaling back the use of cash bail.

In theory, judges should be impartial arbiters of justice, motivated by the law rather than politics.  Since the birth of America, legal scholars and politicians have debated the best method to create an independent judiciary: Should it be elected, or appointed by other elected officials?  That question has yet to be resolved, and currently each state institutes its own system for choosing local judges.  However, the majority — 87 percent as of 2015 — of state-court judges are elected officials.  “I think that the overwhelming majority of judges are trying to do their jobs in good faith,” says Alicia Bannon, the deputy director for program management of the Democracy Program at New York University’s Brennan Center for Justice, “but those political pressures are real.”

Historically, that pressure has been applied by advocates for a more punitive justice system.  The authors of a 2015 Brennan Center study analyzed television ads for judicial candidates nationwide and found that an increasing number of ads focused on how harshly the candidate would punish bad actors: In 2013 and 2014, a record 56 percent of campaign ads lauded tough-on-crime records or lambasted opponents for being soft.  In the past, advocates on the left have lamented how these political pressures have influenced judges.

Now, the progressive activists in the Philadelphia election, and the ones in Texas, are unapologetically supporting judges whose politics align with their own.  The primary election on May 21, rather than the actual election in the fall, will essentially determine who will win the judgeships, since the city’s electorate votes overwhelmingly for Democrats, leaving Republican candidates with little chance of victory.  The primaries are technically partisan, but only one Republican is running.  “The reality is no matter how you pick judges, they are going to be political,” says Jed Shugerman, a Fordham law professor who wrote The People’s Courts: Pursuing Judicial Independence in America. In today’s political climate, he says, progressive groups can have significant influence in left-leaning cities.

May 19, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

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

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

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

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

Chief Justice Roberts

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

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

Justice Alito

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

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

Justice Breyer

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

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

Prior related posts:

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

Saturday, May 18, 2019

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

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

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

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

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

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

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

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

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

Rounding up some interesting criminal justice reads

Frequently, when I come across interesting criminal justice news pieces or commentary while working on other matters, I will email the link to myself with the hope I will find time later to blog about the item.  This week seemed to lead to an especially large number of these items in my in-box, and so I will blogging about them all through this round up.   

A few of these pieces are news accounts of notable court rulings, but most are commentary.  And everyone on of these pieces could justify its own post, which is my way of saying folks should check them all out.  So, in no particular order:

By Seth Mayer, "What Criminal Justice Reformers Can Learn from the Green New Deal"

By Adureh Onyekwere and Ames Grawert, "Welcome To The Age Of Bipartisan Criminal Justice Reform"

By Kara Gotsch, "Criminal justice includes food security — we can't ban the social safety net"

By John Pfaff, "Five myths about prisons"

By David Nathan, Joycelyn Elders and Bryon Adinoff, "21st Century Reefer Madness"

By Andrew Wolfson, "A prosecutor ridiculed a couple's patron saint. So a court reversed their drug convictions."

By John Ellement, "SJC orders release of Wayne Chapman, convicted child rapist"

By Tamara Gilkes Borr, "How the War on Drugs Kept Black Men Out of College"

By Doyle Murphy, "St. Louis’ Justice System Grapples Daily with an Impossible Question: What Punishment Fits the Crime?"

May 18, 2019 in Recommended reading, Who Sentences | Permalink | Comments (2)

Friday, May 17, 2019

"Cruel State Punishments"

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

The Supreme Court has almost systematically expanded the Eighth Amendment over the past decade and a half, proscribing categorical limitations to the death penalty and juvenile life without parole.  With Justice Kennedy’s recent retirement, this expansion seems like it might be ending.  As this door is closing, however, another door may be opening for restricting excessive punishments — state constitutional analogues to the Eighth Amendment.  A close examination of such provisions reveals that some of the provisions use “or” instead of “and,” a linguistic difference that suggests many state constitutions might be broader than the Eighth Amendment.

This article explores the consequences of linguistic differences between the Eighth Amendment and its state constitutional analogues, focusing in particular on the effect of disjunctive state constitutional provisions.  Specifically, the article argues that these linguistic differences open the door to broader application of state Eighth Amendment analogues to rein in excessive punishment practices of state governments.

In Part I, the Article begins by providing an overview of Eighth Amendment doctrine and the importance of the conjunction in its application to criminal sentences.  Part II surveys the state constitutions and examines the language of the provision analogous to the Eighth Amendment, grouping these provisions into three broad categories.  In Part III, the Article advances its core claim — state constitutional prohibitions against “cruel” punishments should limit the ability of states to impose disproportionate punishments.  Part IV concludes the Article by exploring the many practical consequences of limiting the imposition of cruel punishments.

May 17, 2019 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, May 16, 2019

"Promoting Equality Through Empirical Desert"

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

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability.  This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory.   Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform.  Chief among them: it draws from community intuitions, and community intuitions — as the theory acknowledges — are sometimes immoral.  In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices.

This Article argues that these critiques are misplaced and overstated, and that empirical desert theory can be safely relied on in criminal justice — and beyond.  Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology.   Moreover, it can do even better. T  his Article presents an innovative proposal to reconceptualize the theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination.  It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections.  Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them.  In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.

May 16, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

Brennan Center releases great new collection of essays titled "Ending Mass Incarceration: Ideas from Today's Leaders"

Back in late April 2015, roughly 18 months before a big election, the Brennan Center for Justice released this fascinating publication (running 164 pages) titled "Solutions: American Leaders Speak Out on Criminal Justice."  That 2015 publication had nearly two dozen leaders, mostly prominent political figures with big histories and/or plans, discussing a variety of criminal justice reform topics from a variety of perspectives.  In my original post about this great 2015 collection, I expressed concern that former Prez Bill Clinton was tasked with authoring the forward and that former Prez George Bush was not a contributor to the collection.  Others noted, quite rightly and tellingly, that Hillary Clinton's essay in this collection was filled "with platitudes and self-aggrandizing references" within a "shallow discussion" that was "especially embarrassing compared to Ted Cruz's."  I also noted here that the seven GOP political leaders included in the collection had set forth an array of reform priorities and proposals that made me optimistic for potential future bipartisan reforms.

Fast forward four years, and the Brennan Center for Justice is at it again.  Specifically, this morning it just released a 2019 version of timely criminal justice essays, this time under the title "Ending Mass Incarceration: Ideas from Today’s Leaders."  Interestingly, this new must-read collection is a bit shorter (only 112 pages), and it feels a lot more titled toward the left.  Specifically, as noted above, the 2015 collection had essays from seven prominent GOP politicians as well as two additional essays from past or present leaders of right-leaning advocacy groups (not to mention tough-on-crime Democrats like both Clintons and then-VP Joe Biden).  The new collection of essays, though it does include pieces by Jared Kushner, Mark Holden and Holly Harris, fails to have any essays from any elected Republicans or would-be presidential aspirants other than those running for the Democratic nomination.  Given that then-VP Joe Biden appeared in the last volume, I would have liked to now see an essay by current VP Mike Pence on these topics.  Notably, interesting Dem voices like Cory Booker and Kamala Harris got a chance to do repeat performances in this latest volume, but interesting GOP folks like Rand Paul and Rick Perry do not.  And many folks running for Prez on the Dem side are included, but we do not hear from folks like William Weld or John Kasich or any other distinctive right leaning voices.

I would not be surprised if the Brennan Center tried to get more GOP voices involved and ultimately had their requests for contributions denied.  So my goal here is not to fault the efforts in putting together this still very important volume.  I just think it important and significant (and perhaps telling) that the essays here do not appear nearly as bipartisan as they did back in 2015.  But that reality makes this collection no less significant, and I am looking forward to finding time soon to read (and perhaps blog about) all these essays here.

Prior related posts about 2015 volume:

UPDATE: I now see that the New York Times has this good article about this new publication under the bad headline "Left and Right Agree on Criminal Justice: They Were Both Wrong Before." (It is a bad headline because the "Right" is not really fully captured in this collection.)  Here are excerpts from the Times piece:

Of the more than 20 politicians and activists who contributed essays, all but three framed the issue explicitly as a matter of racial justice, emphasizing the deep disparities in a system in which people of color are many times more likely than white people to be incarcerated. Nine called for reducing or abolishing mandatory minimum sentences.  Eight called for eliminating cash bail.  Seven called for alternatives to prison for nonviolent crimes....

No one in the 2015 report suggested decriminalizing marijuana, but Mr. Booker, Senator Elizabeth Warren of Massachusetts and former Representative Beto O’Rourke of Texas did in the new one, and other candidates have suggested it elsewhere.  In 2015, limiting employers’ ability to ask about criminal history was the central proposal from Cornell William Brooks of the N.A.A.C.P.  This year, Mr. Booker, Mr. Kushner, Mr. O’Rourke and Senator Sherrod Brown of Ohio all called for it.

The new centerpieces include eliminating cash bail and getting rid of mandatory minimum sentences altogether.  Senator Kirsten Gillibrand of New York suggested abandoning prison sentences for low-level offenses.  Senator Bernie Sanders of Vermont, Ms. Warren and Mr. O’Rourke proposed abolishing for-profit prisons, which, Mr. Sanders wrote, “have a greater interest in filling the pockets of their shareholders by perpetuating imprisonment” than in rehabilitation.

May 16, 2019 in Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, May 15, 2019

Prez Trump pardons Conrad Black and Pat Nolan

Prez Donald Trump has his clemency juices flowing again, and he is back to his high-profile pardon practices today with grants to two offenders whose names should be familiar to readers of this blog.  Here are the details from The Hill:

President Trump on Wednesday signed granted a full pardon to media tycoon Conrad Moffat Black and Patrick Nolan, former Republican leader of the California State Assembly.

Black, a Canadian-born British citizen, served as the chief executive of Hollinger International, which published the Chicago Sun-Times, The Daily Telegraph and The Jerusalem Post.  He was convicted in 2007 on three counts of mail fraud and one count of obstruction of justice in U.S. District Court in Chicago.

The 74-year-old media mogul spent 3.5 years in prison, the White House said in a statement announcing his pardon. In its statement, the White House said the Supreme Court "largely disagreed and overturned almost all charges in his case. "Two of his three fraud convictions were later overturned, leading his sentence to be shortened. He was released from a Florida prison in May 2012 and subsequently deported from the United States.

"An entrepreneur and scholar, Lord Black has made tremendous contributions to business, as well as to political and historical thought," the White House said. Black wrote a book about the president, called “Donald Trump: A President Like No Other,” published in 2018.

Nolan, who also was pardoned Wednesday, was a California legislative leader who spent years in prison after being convicted in the 1990s in an FBI sting.  Nolan was secretly recorded accepting checks from an undercover FBI agent and was later charged with using political office to solicit illegal campaign contributions, the Los Angeles Times reported.

He later pleaded guilty on one count of racketeering and served 25 months in federal prison.

The White House characterized Nolan's choice to plead guilty as a "difficult" one. "He could defend himself against charges of public corruption and risk decades in prison, or he could plead guilty and accept a 33-month sentence," the White House said. "Determined to help his wife raise their three young children, Mr. Nolan chose to accept the plea."

"Mr. Nolan’s experiences with prosecutors and in prison changed his life. Upon his release, he became a tireless advocate for criminal justice reform and victims’ rights."

Criminal justice reform advocates know how hard Pat Nolan has worked in this space for years, and Conrad Black has been a trenchant critic of the federal criminal justice system since he got caught up with it.

A few prior related posts with a few commentary from Black and Nolan:

May 15, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The Governor's Clemency Power: An Underused Tool to Mitigate the Impact of Measure 11 in Oregon"

The title of this post is the title of this notable new paper authored by Aliza Kaplan and Venetia Mayhew recently posted to SSRN.  Here is its abstract:

In this article, we analyze the historical use of the clemency power at both the federal and state levels; including the factors that occurred during the 20th century which resulted in both presidents and governors gradually using the power less, up until the 1980’s.  We examine how the “war on crime” and other political and legal changes, including the imposition of new mandatory minimum sentencing laws during the 1980’s and 1990’s, has led to mass-incarceration at both a national and Oregonian level.  We discuss how this new punitive sentencing and incarceration philosophy has resulted in a general souring on the use of the pardon power and is now seen as a challenge to powerful prosecutors who generally oppose clemency as an extra-judicial attack on their own policies.  In looking at the current prison population in Oregon, we argue that the current Governor should use her pardon power as tool to mitigate some of the prevalent injustice in Oregon.

May 15, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 14, 2019

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

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

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

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

A few prior related posts:

Since FIRST STEP:

Prior to FIRST STEP:

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

Monday, May 13, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I see no basis for this disposition in these circumstances.

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

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

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

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

Sunday, May 12, 2019

Split Sixth Circuit panel finds statutory max sentence substantively unreasonable(!) for felon-in-possession with long criminal history

A helpful reader made sure I did not miss the interesting (unpublished!) ruling of a Sixth Circuit panel late last week in US v. Warren, No. 18-3141 (6th Cir. May 10, 2019) (available here). Here is how the majority opinion in Warren starts and ends:

At Davian Warren’s sentencing hearing, both Warren and the government sought a 51-to-63-month sentence — a term that was recommended in Warren’s presentence report and that fell within the applicable Sentencing Guidelines range.  Instead, the district court imposed the statutory maximum of 120 months’ imprisonment. Warren challenges his sentence as substantively unreasonable, arguing that the district court’s explanation for its upward variance does not justify doubling the Guidelines-recommended sentence and imposing the statutory maximum.  We agree, vacate Warren’s sentence, and remand for resentencing....

To be clear, we have declined to impose a “bright-line rule” that district courts cannot rely on factors accounted for by the Guidelines in imposing a variance, Tristan-Madrigal, 601 F.3d at 636 n.1, and we have affirmed the imposition of sentences that deviate from the Guidelines to some degree based upon a defendant’s criminal history, e.g., United States v. Villarreal, 609 F. App’x 847, 850 (6th Cir. 2015) (finding that serious criminal history “warranted a slight upward variance”); United States v. Lanning, 633 F.3d 469, 476 (6th Cir. 2011) (finding that serious criminal history warranted 42-month sentence, which was “well above [the defendant’s] advisory Guidelines range of 18 to 24 months, though considerably below the statutory maximum sentence of 60 months”).  But we have also made plain that “the greater the district court’s variance, the more compelling the evidence must be.” Stall, 581 F.3d at 281–82.  Even granting that some variance based on Warren’s criminal history was justified, we are left with the definite and firm conviction that, in this case, the trial court imposed a sentence that was “greater than necessary” in roughly doubling the recommended sentence and imposing the statutory maximum based on Warren’s criminal history without a fuller consideration of whether such a sentence avoids unwarranted sentencing disparities.  Vowell, 516 F.3d at 512.

On the record before us, the district court failed to provide a sufficiently compelling justification to impose the greatest possible upward variance under the statute.  See Gall, 552 U.S. at 50; Stall, 581 F.3d at 281–82.  We are “confident that on remand, the district court can fashion a sentence that reflects [the defendant’s] actual crime, that takes into account his dangerousness to the community, and that is sufficient, but not greater than necessary, to achieve the purposes of sentencing.” Allen, 488 F.3d at 1262.

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

I respectfully dissent.  The majority holds that, “Because the district court’s only discussion of whether the selected sentence avoids unwarranted sentencing disparities hinges on criminal history factors addressed by the Guidelines, the district court insufficiently distinguished Warren from other offenders in the same criminal history category,” and thus the district court’s reasoning was “insufficient to justify such a stark departure from the Guidelines.”  The majority also characterizes Warren’s criminal record as “the only reason” offered by the district court for the sentencing disparity. I must disagree.  The district court’s extensive discussion of its reasoning for an upward variance did not only “hinge on criminal history factors,” and in my view the district court did sufficiently explain how Warren was different “from other offenders in the same criminal category.”  The district court’s reasoning for imposing an above-Guidelines sentence for Warren was clear: the danger to the community posed by the unique combination of his refusal to be “deterred” by prior sentences and his “violent nature.”

I always find it heartening to see a circuit court take seriously its responsibility to review sentences for substantive reasonableness, and I wonder if this kind of rulings has become a bit more common now that there is more bipartisan concern for mass incarceration and the severity of federal sentences.  As long-time readers know, I followed reasonableness review patterns closely for a number of years after Booker, but ultimately got very discouraged by this jurisprudence due to the unwillingness of many circuits to ever find within-guideline sentences unreasonable (and their eagerness to find below-guideline sentences unreasonable).  The federal defenders have this notable list of reasonableness reversals through Nov 2017, and I think it would be a great empirical project to explore in great detail how reasonableness review has operated in the 15 years since the Booker ruling.

While excited by the Sixth Circuit panel here giving teeth to reasonableness review, I am also struck by the interesting fact that the defendant in this case was not subject to the extreme mandatory sentencing enhancement of the Armed Career Criminal Act given his extended criminal history.   Given the Sixth Circuit setting here, I am reminded of a case from five years ago, US v. Young, in which a unanimous panel upheld against a constitutional challenge the 15-year ACCA sentence for a defendant with a much more modest criminal history than Davian Warren.  Of course, Eighth Amendment claims are even harder to win (unless you are on death row) than reasonableness appeals.  But comparing these defendants and the appellate outcomes serves as another reminder of how much arbitrariness infests the federal sentencing system.

May 12, 2019 in Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, May 10, 2019

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

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

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

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

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

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

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

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

"4 Ways To Win A Presidential Pardon Under Trump"

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

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

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

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

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

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

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

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

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

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

A few of many recent related posts: 

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

Thursday, May 09, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Spotlighting how federal drug prosecution patterns have changed in recent years

Screen-Shot-2019-05-08-at-10.43.47-AM-768x588I noted here that yesterday the US Sentencing Commission released its 2018 Sourcebook of Federal Sentencing Statistics covering Fiscal Year 2018.  There are lots of interesting data to mine from this big new resource, and I am pleased to see the folks at Marijuana Moment highlighting one particular story under the headline "The Feds Prosecuted Even Fewer Marijuana Trafficking Cases In 2018." Here are the details:

Federal marijuana trafficking cases dropped again in 2018, continuing a trend that seems linked to increasingly successful state-level cannabis legalization efforts.

A report from the U.S. Sentencing Commission that was released on Wednesday shows that while drug-related offenses still constitute a sizable chunk of federal prosecutions — larger than fraud and firearms combined — marijuana trafficking cases have significantly declined since states started repealing their cannabis prohibition laws.

There were just over 2,100 federal marijuana trafficking cases in 2018, compared to nearly 7,000 in 2012, when Colorado and Washington became the first states to legalize cannabis but hadn’t yet implemented their programs.

Trafficking cases for other drugs remained mostly stable during that period, with the exception of methamphetamine. Those cases have been on the rise, reaching about 7,500 last year.

All told, drug-related crimes represented 28 percent of federal prosecutions in 2018.  The only larger category was immigration, which accounted for 40 percent of cases.

The average sentence for marijuana trafficking cases was slightly higher in 2018 compared to the previous year, with the average offenders receiving 18 months in prison.

The reasons behind the decline in cannabis trafficking cases isn’t certain, but advocates believe that the data bolsters the case they have long made about how consumers would prefer to purchase marijuana from legal and regulated businesses instead of from the criminal market.

Technically, these US Sentencing Commission data are only specifically reflecting cases that were sentenced in FY 2018, so it is not quite right to say these data reflect precise prosecution numbers for FY 2018. (Some number of cases that get prosecuted will be dropped or will not result in a conviction for various reasons, to total number of cases prosecuted is likely a bit larger than total number of cases sentenced.)  Nevertheless, number of cases sentenced is a pretty good proxy for prosecution patterns, and the trends in all drugs noted in the graph above is interesting.  The slight uptick in federal heroin sentences and the huge uptick in federal meth sentences stand in sharp contrast to the notable declines in sentences for crack cocaine, powder cocaine, and marijuana. 

May 9, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 08, 2019

"Rewriting the Sentence Summit on Alternatives to Incarceration"

The title of this post is the title of this great event taking place next month in New York City hosted By Columbia University and The Aleph Institute at Columbia Law School.  Though I have played a small role in helping to plan the event, some folks much more talented than me have arranged for an extraordinary array of great speakers to be at the event (as detailed at this link). The event website provides this overview:

What is the Rewriting the Sentence Summit on Alternatives to Incarceration?

This is a high-level summit that aims to highlight the range of alternative sentencing policies and programs that are currently operating in the U.S. and abroad, and look more deeply at their effectiveness and functional requirements.  It will include a wide range of perspectives on these issues.

Who will participate in the summit?

The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.

What are the summit’s objectives?

Beyond education, The Rewriting the Sentence Summit on Alternatives to Incarceration will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:

  • Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
  • Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
  • NGOs that can help to support broader application of effective alternative sentencing, e.g., ubiquity of access and other measures and peripheral programs to help ensure successful reentry.

What sets the summit apart from other events?

The number of high-level participants; the balance between reformers and healthy skeptics; the interactive session; and the focus on making connections and producing outcomes that include the development of a database of best practices and an informal network for future coordination and support.

May 8, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

US Sentencing Commission (finally) releases 2018 Annual Report and Sourcebook of Federal Sentencing Statistics

Via email, I received this morning this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Newly Released Sentencing Data

Today the U.S. Sentencing Commission published its 2018 Annual Report and Sourcebook of Federal Sentencing Statistics. 

The Annual Report presents an overview of the Commission's work in fiscal year 2018. The Sourcebook was expanded this year to include more analyses of drug and immigration offenses, as well as new sections on firearms and economic offenses to give readers more complete information about the most frequently occurring federal crimes. 

The Sourcebook contains information collected from 321,000 federal sentencing documents on 69,425 federal offenders. 

Quick Highlights

  • The federal sentencing caseload increased by 2,552 cases from fiscal year 2017, representing the first increase since fiscal year 2011.

  • Immigration offenses accounted for the largest single group of federal crime — a position held by drug offenses in fiscal year 2017.

  • Immigration offenses increased from 30.5% in fiscal year 2017 to 34.4% in fiscal year 2018 while drug and firearms offenses decreased.  

  • Methamphetamine offenses, the most common drug type in the federal system, continued to rise (up from 30.8% of drug offenses in fiscal year 2016 and 34.6% in fiscal year 2017 to 39.8% in fiscal year 2018).

  • 75% of federal offenders were sentenced under the Guidelines Manual in fiscal year 2018.

Interestingly, as reveled by this prior post, these annual materials were released by the USSC last year in early March.  I presume the government shutdown and the lack of commissioners has something to do with these data coming out a few months later this year.  I am hopeful it will not take me a few months to find a few data stories to highlight from these latest USSC documents, and I welcome the help of readers to identify just how the Trump era is now looking through the lens of federal sentencing statistics.

May 8, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Does our county really need a bigger jail?"

Pretrial_detention_growth450x337The question in the title of this post is the title of a new Prison Policy Initiative report that seeks to provide cities and counties with a guide for preventing unnecessary jail expansion.  This press release about the report reviews the essentials (and provides a link):

The report, Does our county really need a bigger jail?, lays out 33 questions that local decision-makers should ask in evaluating proposals for new or bigger jails.  “It’s very common today for jails to be overcrowded, because the number of people in jails nationwide has tripled in the last 30 years,” said report author Alexi Jones. “But in too many counties, jail growth is rooted in known policy failures like an overreliance on money bail. Local policymakers owe it to their constituents to find out if there is a better fix to overcrowding than just building a new or bigger jail.”

The report’s 33 questions for policymakers include:

  • On a typical day, how many people are confined in the existing jail who have not been convicted?
  • How many people in the county are incarcerated because they cannot afford to pay fines and fees?
  • What specialized “diversion” courts and treatment programs is the county using to divert people struggling with substance use and mental illness into more effective treatments than jail?
  • Do official cost estimates for building new jail space include not only the cost of construction, but the cost of debt service on the loan, annual operation costs, and collateral costs such as adverse impacts on public health?

“Building new jail space typically costs tens of millions of dollars or more, even as other options that are both more cost-effective and more compassionate are ignored,” said Jones. “If policymakers can’t answer these questions about why more jail space is necessary, they should not be undertaking jail expansion.”

For all 33 questions, the report also offers a set of alternatives and best practices, including:

  • Releasing more pretrial defendants on their own recognizance, and investing in pretrial services to help them make their court dates;
  • Requiring judges to set fines and fees based on a defendant’s ability to pay;
  • Investing in specialized “problem-solving” courts for people with mental health or substance use disorders that serve as true alternatives to jail time.

The report’s recommendations are accompanied by helpful graphics, as well as examples of local and state governments successfully implementing alternatives to jail expansion. “We know that the answer to mass incarceration begins at the local level,” said Jones. “That’s why it’s critical to help cities and counties think beyond jail expansion when it comes to improving public safety.”

May 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, May 07, 2019

So much to keep up with concerning Kim Kardashian's criminal justice reform efforts

I have done a number of prior posts about the criminal justice activism of Kim Kardashian because I have long thought that a huge celebrity with a huge following (and a huge bankroll) could have a huge impact in this space.  And these recent (entertainment) reports suggest Kimme's impact is continuing to grow:

From TMZ, "KIM KARDASHIAN HELPED FREE 17 INMATES IN 90 DAYS ... Reuniting Them with Families"

From Elle, "Kim Kardashian West Is Producing an Oxygen Documentary on Criminal Justice Reform"

Here is an excerpt from the second of these pieces:

Kim Kardashian West is continuing her commitment to bettering the criminal justice system with a new two-hour documentary. According to a press release sent to ELLE.com, the reality star will executive produce the Oxygen film, working title Kim Kardashian: The Justice Project, which aims to capture her, "efforts to secure freedom for Americans who she believes have been wronged by the justice system." It also promises "exclusive, never before seen look inside her mission to tackle one of America's most controversial subjects."...

On Friday, Kardashian West tweeted that she'd helped secure the release of another low-level drug offender from prison."We did it again! Had the best call w/this lovely family & my attorney @msbkb who just won release for their loved one Jeffrey in Miami," she wrote on Twitter. "He served 22 years of life sentence for low level drug case. He served too much time but it gives me so much joy to fund this life saving work."

According to a new TMZ report, Kardashian West has helped 17 prisoners—and that's just in the last three months. She's reportedly involved in a campaign called 90 Days of Freedom, which was started by Decarceration Collective lawyer MiAngel Cody and Kardashian West's attorney Brittany K. Barnet. The report names several other people who have been directly impacted by Kardashian's assistance, including Jamelle Carraway, Eric Balcom, and Terrence Byrd.

Prior related posts:

May 7, 2019 in Who Sentences | Permalink | Comments (1)

Wondering how many sentencing commissions include formerly incarcerated after notable new appointment in Minnesota

In this post last month about the new secretary of the Pennsylvania pardon board, I recalled Judge Marvin Frankel famously urging the creation of a "Commission on Sentencing" and the appointment of "former or present prison inmates" to the commission because "the recipients of penal 'treatment' must have relevant things to say about it."  Frankel's long-ago advocacy and this new story out of Minnesota prompts the wondering in the title of this post.  The press article is headlined "'Incarceration survivor' vows to add missing perspective to Minnesota's sentencing commission," and here are excerpts:

Before she was a teen, Tonja Honsey knew what it was like to be under court supervision.  Decades — and several jail stints — later, she almost lost her youngest child while four months pregnant and behind bars on a probation violation. "I say that I'm an incarceration survivor," Honsey said.

The 42-year-old St. Paul woman has since found sobriety and built a deep résumé as a criminal justice reformer, a different type of record that led Gov. Tim Walz to put her on the Minnesota Sentencing Guidelines Commission.

When Honsey arrives for her first meeting later this week she will join a new panel of jurists, law enforcement and legal officials tasked with recommending changes to the Legislature and the courts on how Minnesotans should be punished and rehabilitated for their crimes.  Believed to be the first woman to serve on the commission after having served time behind bars, Honsey brings a wealth of experience helping mothers and pregnant inmates in the years since her return to society. She also brings direct knowledge, having bounced back from the receiving end of Minnesota's criminal justice system.

Growing up in what she describes as a dysfunctional family, Honsey found herself turned over to state-run institutions after repeatedly running away from home at an early age.  She later cycled into selling drugs to make ends meet while on her own, and eventually using them to cope with childhood trauma.  Her record also includes charges for check forgery and theft. Her most serious drug crime was in Freeborn County: a 2002 conviction for second-degree controlled substance, after a clandestine meth lab bust near Maple Island....

Hers is a perspective, she said, that the sentencing commission could use.  "The shift needs to turn from people who have gone to school to learn about re-entry, to where people who are directly impacted need to be the ones leading," Honsey said.  "And not just brought in for a focus group.  We actually need to be leading the charge."

She will serve with several other new members.  Walz also appointed Kelly Lyn Mitchell, who leads the University of Minnesota's Robina Institute of Criminal Law and Criminal Justice, as new chairwoman of the commission.  Abby Honold, a Minnesota rape survivor who has been a leading voice on working to improve how police handle rape cases, will be a new commissioner representing Minnesotans who have been the victims of a crime.  Walz said his appointments are intended to "ensure that a diversity of perspectives is represented when making these life-altering decisions."...

Dan Cain, president of RS Eden, was the first former inmate to serve on the commission when he was tapped in its early stages in 1982. He eventually went on to chair the group.  Minnesota was the first state to create a body to study sentencing policy in 1978 and, two years later, issued the nation's first set of sentencing guidelines for state court judges.

"I think that my being on the commission was recognition by the commission members that not everyone shared their worldview," said Cain, who is 47 years sober and was pardoned for a series of burglary and forgery crimes committed in the 1970s.  "I think a mistake policymakers make often is they believe the same things that motivate and deter them are the same things that motivate and deter everyone."

I am inclined to guess that Minnesota has now set a record by having two formerly incarcerated persons serve on its sentencing commission, and I really wonder how many states have had even one such person as a commission member. I am nearly certain that none of the 30+ members of the US Sentencing Commission over the last 35 years have had such a background.

Prior related post:

May 7, 2019 in Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

-- Questions of governance, transparency, and accountability.

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

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

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

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

Prez Trump gets back in clemency business by granting full pardon to US veteran convicted of killing Iraqi prisoner

As reported in this AP piece, "President Donald Trump has pardoned a former U.S. soldier convicted in 2009 of killing an Iraqi prisoner, the White House announced Monday." Here is more:

Trump signed an executive grant of clemency, a full pardon, for former Army 1st Lt. Michael Behenna, of Oklahoma, press secretary Sarah Sanders said. Behenna was convicted of unpremeditated murder in a combat zone after killing a suspected al-Qaida terrorist in Iraq.  He was paroled in 2014 and had been scheduled to remain on parole until 2024.

A military court had sentenced Behenna to 25 years in prison.  However, the Army's highest appellate court noted concern about how the trial court had handled Behenna's claim of self-defense, Sanders said.  The Army Clemency and Parole Board also reduced his sentence to 15 years and paroled him as soon as he was eligible.

Behenna's case attracted broad support from the military, Oklahoma elected officials and the public, Sanders said.  She added that Behenna was a model prisoner while serving his sentence, and "in light of these facts, Mr. Behenna is entirely deserving" of the pardon.  Oklahoma’s two Republican senators, James Lankford and Jim Inhofe, hailed the pardon, thanking Trump for giving Behenna “a clean slate.”

Behenna acknowledged during his trial that instead of taking the prisoner home as he was ordered, he took the man to a railroad culvert, stripped him, and then questioned him at gunpoint about a roadside bombing that had killed two members of Behenna's platoon. Behenna, a native of the Oklahoma City suburb of Edmond, said the man moved toward him and he shot him because Behenna thought he would try to take his gun.

Oklahoma’s attorney general first requested a pardon for Behenna in February 2018 and renewed his request last month. Attorney General Mike Hunter said he believed Behenna’s conviction was unjustified because of erroneous jury instructions and the failure of prosecutors to turn over evidence supporting a self-defense claim.

May 7, 2019 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 06, 2019

Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act

In prior posts, I have made much of a key provision of the FIRST STEP Act which allows federal courts to directly reduce sentences under the so-called compassionate release statutory provisions of 18 U.S.C. § 3582(C)(1)(A)This recent Reason article discussing the impact of this provision in a notable recent case from Montana.  The full title of this article serve as a summary of its contents: "A Terminally Ill, Wheelchair-Bound Inmate Applied for Compassionate Release. The Justice Department Argued He Wasn't Dying Fast Enough To Qualify. The FIRST STEP Act gives dying inmates the opportunity to appeal to a judge for compassionate release. This case shows why." Here are excerpts:

On Wednesday a judge ordered the release of federal inmate Steve Brittner, 55, under the new provisions of the FIRST STEP Act, a criminal justice bill passed late last year.  The judge ordered the release over the objections of federal prosecutors, who argued that Brittner, who is suffering from a malignant brain tumor, does not meet the "extraordinary and compelling" reasons to qualify for what's known as "compassionate release."

Brittner's case illustrates both the impact of the new law and the extraordinary hurdles terminally ill inmates and their families still face when trying to squeeze a small amount of mercy out of the federal government.

One provision of the FIRST STEP Act allows federal inmates to take their pleas to a judge if the federal Bureau of Prisons (BOP) rejects their petitions for compassionate release — a policy that is supposed to afford elderly and terminally ill inmates the opportunity to finish their lives among family and in relative peace....

"This is a very telling case," says FAMM president Kevin Ring.  "On one hand, the First Step Act's reforms to compassionate release worked as intended and this family prevailed.  On the other hand, it blows my mind that the Justice Department and BOP still fought tooth and nail to keep a low-level drug offender who is dying of brain cancer and bound to a wheelchair away from his family for the final weeks of his life.  They'll say they were just doing their jobs, but their job is to do justice."

A few prior related posts from before and after FIRST STEP :

May 6, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

New Miss USA is a lawyer who blogs and seeks "reduced sentences for people who were sentenced unjustly"

17818960_1027573494011270_3870026070707142656_nI was intrigued to learned that I share some traits with the newly-crowed Miss USA, Cheslie Kryst. As detailed on this webpage, Kryst is a lawyer and a blogger and an advocate concerned with excessive sentences:

Cheslie graduated with a Juris Doctor degree (JD) and Master of Business Administration degree (MBA) from Wake Forest University. And also earned her Bachelor of Science degree (BS) in Business Administration from the Honors College at the University of South Carolina.

Cheslie is practicing complex civil litigation for a private law firm and is licensed to practice law in two states.  She also does pro bono (free legal) work to get reduced sentences for people who were sentenced unjustly.

Cheslie currently runs her own fashion blog, White Collar Glam, that focuses on workwear fashion for women. She was inspired to begin ‘White Collar Glam’ after struggling to find appropriate, affordable, and professional clothing.

And this new TMZ piece reports that Miss USA is already joining forces with high-profile folks with a track record of getting excessive sentences reduced:

Miss USA Cheslie Kryst is hard at work on a project that goes well beyond your typical beauty pageant agenda -- and it has her crossing paths with Kim Kardashian.

The new Miss USA was on "TMZ Live" Monday and told us she's working to free an inmate who's serving a life sentence for a low-level drug charge. She's working closely with Brittany K. Barnett -- the lawyer who just secured another prisoner's release ... with Kim's funding.

Cheslie, an attorney herself, tells us she and Brittany hope to do the same for someone in her home state of North Carolina by the end of this month.

As we reported ... Kim and Brittany just helped free Jeffrey Stringer, who served 22 years of a life sentence in Florida. Kim posted a celebratory shot of his family ahead of Stringer's release.  Now, Cheslie's hoping she can accomplish a similar mission close to home.

Kim's got a pretty amazing track record when it comes to this sort of thing ... helping Tennessee inmate Cyntoia Brown secure clemency, playing a key role in freeing Matthew Charles and Alice Marie Johnson, and taking her cause to the White House for a meeting with President Trump ... accomplishments Cheslie says should be celebrated.

May 6, 2019 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Pennsylvania Gov grants clemency to three more persons serving life sentences

I am pleased to see that, while Prez Trump and some who want his job have been talking the talk about clemency at the federal level, some notable governors have been walking the walk at the state level.  This new local article, headlined "Gov. Tom Wolf releases 8 lifers, more than any other Pa. governor in decades," reports on the record of the chief executive in the Keystone state.  Here are excerpts:

On Tuesday evening, George Trudel Jr. — heretofore known as inmate AS2262 at the State Correctional Institution Phoenix — got the news he’d been awaiting for 30 years.  Gov. Tom Wolf had granted him clemency, bringing to a close what had been a sentence of life in prison without possibility of parole....

Trudel, now 52, is one of more than a thousand lifers convicted for a role in a killing that they did not personally commit or necessarily even anticipate — lookouts for botched robberies and burglars who caused elderly victims to have heart attacks....

The reduction of Trudel’s life sentence, and those of two other men, bring to eight the number of commutations granted by Wolf. That’s more than any other governor in the last 25 years.

The politically precarious practice of commuting life sentences began to fall out of favor not long before Trudel was convicted, when Gov. Richard Thornburgh took office in 1979.  It all but ceased in 1994 — the year a lifer named Reginald McFadden was released and went on a killing spree, flipping the governor’s race away from Mark Singel, who had approved the commutation, and shifting the odds of clemency from Harvard-acceptance rare to lottery-win rare for the next 2½ decades.

As a result, Pennsylvania is now home to more than 5,000 people serving live without parole.  Today, commutations must be unanimously recommended by the state Board of Pardons before the governor can even consider them.  Many applicants are senior citizens who have spent decades in prison.

The two other men who received clemency were Adolfo Carrillo, 79, from Philadelphia, and Samuel Barlow, 68, of Pittsburgh.  Carrillo shot and killed a neighbor, Santiago Garcia, during an argument in 1976; he told police that Garcia had disrespected his wife, according to news reports.  Barlow was initially sentenced to death for serving as the lookout in a 1968 bank robbery in which his co-defendants shot and killed a customer, George Morelock.

May 6, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Will New Hampshire legislature this time override veto to finally repeal state's death penalty?

As noted in this post last month, a lopsided vote in favor of a bill to repeal the death penalty in the New Hampshire legislature suggested that the state would be able to abolish capital punishment despite the opposition of the state's Governor.  On Friday, as reported in this local article, the expected veto occurred, setting up the question that is the title of this post.  The local article is headlined "Sununu vetoes repeal of seldom-used death penalty as large delegation of police applaud," and here are excerpts:

Gov. Chris Sununu vetoed legislation to repeal the death penalty Friday surrounded by about 30 state, county and local police officers at the Michael Briggs Community Center, named for the officer whose killer is the state’s lone occupant of death row.

The governor acknowledged the bill he vetoed received bipartisan support in the House and Senate that was “pretty overwhelming.”...

Michael Addison, already a convicted felon when he shot officer Briggs, is the only person on death row in New Hampshire, which hasn’t executed anyone since 1939.  A recurring theme among repeal opponents has been the fear that Addison’s sentence will be converted to life without parole if the death penalty is repealed, even though repeal advocates argue that the law can’t be applied retroactively.

After the veto signing, Sununu said he believes in the death penalty as a matter of sound public policy and that he would have vetoed a repeal whether or not the state had an inmate on death row. “The reason is quite obvious,” he said, “when you talk to law enforcement and ask if this serves as a deterrent, they say ‘absolutely.’ People in this state understand that this is a tool and when you use it justly and with prudence, as New Hampshire does, it’s appropriate.”...

Sununu said he would do everything he could to “engage citizens in this process.”

“When you get to sustaining or overturning a veto, a lot of dynamics come into play,” he said. “So we’ll go back and talk to folks. We’ll keep fighting for it.  The vote was pretty overwhelming, to be honest.  Politics didn’t come into play.  I think it was folks not really understanding what this means to law enforcement and their families.”

Because I do not know the particulars of the New Hampshire legislature and local politics, I am not able to make a confident prediction on a veto override under the circumstances. Notably, the legislature failed to override a similar veto of a similar bill last year, but the 2018 election may have changed the numbers enough to change the outcome. But, as this news article suggests, it would appear the Governor is eager to take steps to preserve his veto and thus the state's death penalty.

Prior related post:

May 6, 2019 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Urging Prez candidates to urge bold criminal justice changes looking beyond incarceration levels

Sara Wakefield and Kristin Turney have this notable new Hill commentary headlined "In 2020, we need bold ideas for criminal justice reform too."  Here are excerpts:

As the 2020 election quickly approaches, Democratic candidates are presenting bold ideas about a wide variety of issues including climate change, inequality, national paid leave, filibuster reform, student loans, and Medicare for All. Few ideas are too ambitious for the base, even though many would require major structural changes to American institutions and civic life.

Then, there’s the issue of justice. Criminal justice reform and mass incarceration get talked about, correctly, as racial justice issues that need to be addressed, but no one has proposed radical changes to how we approach crime and punishment in America. It’s time for 2020 candidates to think as boldly about criminal justice as they are about health care and climate change.

Sen. Cory Booker’s (D-N.J.) “Next Step Act” currently comes closest to a bold proposal, taking on police officer training, the conditions of confinement, and expungement procedures. Yet, even this proposal includes the sentencing reforms and reentry assistance proposals we’re used to seeing. Our collective focus, and the focus of popular criminal justice reform laws like the FIRST STEP Act, remains on a late stage of criminal justice contact: incarceration.

Prison incarceration is, of course, a consequential event, but many more millions of people engage with our inefficient and repressive criminal justice system — through arrests, misdemeanor convictions, parole and probation, the bail industry, and the accumulation of fines and fees. People don’t have to be sentenced to prison to have life-altering interactions with the criminal justice system, and our leaders need to think about these experiences too. In 2016, for example, 70 percent of the roughly 646,000 Americans in local jails on any given day had not been convicted of anything, largely remaining in jail due to their inability to make bail or because they violated the conditions of probation and parole....

Presidential candidates should also consider how much our criminal justice system impacts lives after someone has served time. In 2016, almost 7 million people were under some form of correctional supervision, such as parole or probation. The most common reentry proposals are aimed at improving the labor market prospects of the formerly incarcerated. We applaud these efforts, but people who lack health care and a stable home may struggle to find and keep a job. Discussions of health care and housing policy that ignore the formerly incarcerated ignore a population with the most significant health care problems and housing instability in the country....

By focusing on reforming incarceration only, we are obscuring a broader landscape of pain for millions of Americans. To truly begin on a path toward criminal justice reform, we need our leaders to think in terms of new deals, guarantees, and sweeping legislation that could impact more Americans, like they do on climate and health care. The type of country we want to have depends on these decisions.

May 6, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, May 05, 2019

Assembling criminal justice questions for the 2020 Prez field

Writing in the Washington Post, the Radley Balko is playing a great game of 20 questions in the form of this commentary headlined "Here are 20 criminal-justice and civil liberties questions for the 2020 contenders." I recommend the piece in full, in part because he lists a lot more than 20 questions (as my partial imprint reveals).  Here is part of its lead-in and a few of my favorite questions:

The 2020 campaign will likely present voters with the sharpest contrast on criminal-justice and civil-liberties policy in recent memory.  Most of the announced candidates for the Democratic nomination are pro-immigration and gun regulation and anti-death penalty and mass incarceration — all stances that put them at odds with President Trump. Many also have said they believe there is racial bias in the criminal-justice system and have expressed sympathy for police critics such as Black Lives Matter, again in sharp contrast to Trump.

So here’s a list of the questions I would pose to the Democratic field as a whole. (I’ll posit individualized questions based on the candidates’ records at a later date, when the field narrows down a bit.)  Feel free to leave your own questions in the comments....

5. Almost all of you favor the legalization of marijuana. Would you consider pardoning everyone who has been convicted in federal court on charges exclusively related to possession, sale or transport of marijuana?  What is your more general opinion of the pardon power?  Should it be used more often, less often?  Should it be used to grant mercy and redemption on guilty people, or as a check against injustices against potentially innocent people?...

10.  Numerous surveys and studies have shown that for much of the country, public defenders are underfunded, understaffed and overworked.  Some would argue that this imperils the Sixth Amendment rights of criminal defendants, and that under the Fourteenth Amendment, the federal government is obligated to step in to protect those rights. Do you agree?  If so, what should the federal government do to guarantee an adequate defense for indigent defendants?...

14.  Most of you say you are against the death penalty.  As president, you will have the power to commute sentences. For those of you who are against the death penalty, will you commit to commuting the sentences of everyone on federal death row? Will you vow that your administration will not seek any new death sentences?....

18.  Nearly all of you say you support reforming the criminal-justice system and ending mass incarceration. The criminologist John Pfaff, among others, has shown that to truly end mass incarceration, we’ll need to not just release nonviolent offenders but also rethink how we treat violent offenders.  We now know that from about the age of 25 on, the probability of recidivism among violent offenders drops significantly.  Would you support a policy that allows for the release of or shorter sentences for some violent offenders?

19.  There hasn’t been a justice on the Supreme Court with criminal defense experience since Thurgood Marshall retired.  Only a few justices since Marshall have had any criminal law experience at all. Do you think this is a problem? Would you consider appointing someone to the court with a significant criminal defense background?

I have a lot more questions in mind for the 2020 field with much more of a sentencing focus, but it still feels a bit too early for getting them all revved up. But readers should not feel shy about chiming in now.

May 5, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Saturday, May 04, 2019

Florida legislature passes it own first (very baby) step act on criminal justice reform

This local article out of Florida, headlined "Legislature OKs criminal justice reforms but no change to mandatory-minimum sentencing," reports on how the Sunshine State is starting to move forward on reform inspired clearly by the federal FIRST STEP Act. But, as the article explains, political challenges have resulted in Florida's first step being even more limited that what has been achieved at the federal level:

The Florida Legislature passed a 296-page criminal justice reform package bill Friday, the last full day of the session, addressing the issue of a bulging prison population that has long eluded resolution....

Reshaping Florida’s tough-on-crime policies and reducing the state’s nearly 100,000-person prison population is a rare issue that has united Trump populists and progressive civil rights groups, yet often results in open and closed-door fights among Republicans over how far to go.

This year, compromise was reached. The House passed the bill unanimously Friday, following the Senate’s near-unanimous passage on Thursday. The bill now heads to Gov. Ron DeSantis’ desk. Despite the victory for Republican Sen. Jeff Brandes of St. Petersburg, who’s long been a leading voice in the Legislature for the need for criminal justice reform, the bill’s passage was bittersweet.

“I am incredibly disappointed,” he said Thursday, referring to several big-ticket reform pieces that were taken out of the bill at the behest of the House. “I’m not surprised we didn’t get there, but I think what we did was advance the conversation.”

House Bill 7125 is the result of private negotiations between the two chambers over the past week and contains many changes proposed by those seeking to reshape Florida’s tough-on-crime laws from the 1990s. That includes making it easier for felons to get professional licenses and allowing state attorneys to decide whether juvenile cases should be transferred to adult court. Currently, that happens automatically if the crime is severe or the child has certain prior convictions.

It also would raise the “threshold” dollar amount at which theft charges go from a misdemeanor to a felony, from $300 to $750. That’s not as high as the House’s original proposal, which was to raise it to $1,000, but it brings Florida’s law closer to the national average. It also eliminates or reduces driver’s license suspensions as a criminal penalty, which lawmakers have said unfairly hampered people’s ability to get to their jobs and continue to make an honest living.

The bill has been dubbed the “Florida First Step Act” after the federal reform law with the same name. Shortly after the bill passed the House, Kara Gross, the legislative director for the American Civil Liberties Union of Florida, said the bill amounted to “a baby step, at best.”...

What didn’t make the cut of the final bill:

▪ Allowing judges discretion over sentences for certain drug crimes that currently have required amounts of time that defendants must serve, called “mandatory minimum” sentences.

▪ Permitting prison inmates convicted of nonviolent felonies to be released after serving a minimum 65 percent of their sentence if they have good behavior and participate in educational and rehabilitative programs (current law is 85 percent).

▪ Retroactive re-sentencing for people who were convicted of aggravated assault back when the state’s punishment for that crime was harsher than it is now.

Email messages between House and Senate staff obtained by the Herald/Times show that the House had, at one point last week, been “comfortable” with modified language related to giving judges more discretion over sentences for nonviolent drug crimes, reducing the length of some sentences. But that didn’t make it into the final bill....

Despite some lukewarm support for giving judges more sentencing discretion, Gov. Ron DeSantis poured cold water on the idea of letting inmates out after serving 65 percent of their sentence, likely one of the reasons that piece was scrapped....

The bill passed with only one “no” vote in the Senate, which came from Sen. Randolph Bracy, D-Orlando, who praised Brandes’ efforts but said that he, too, was frustrated with the compromise. “Honestly, I’m tired of submitting to the will of the House on these types of issues,” he said.

Still, the willingness of the House, traditionally the more tough-on-crime chamber, to cobble together a criminal justice reform package of this size shows a shift of tone, however subtle, toward reducing Florida’s burgeoning prison population.

Friday’s bill also creates a task force to reevaluate Florida’s entire criminal punishment code, and whether the set punishments fit the crime. House Speaker José Oliva said that this bill is the result of several years of discussion on this issue. Lawmakers in both the House and Senate have said they intend on taking up some of the issues that failed next year. “Sometimes ideas take time for people to understand and to have a chance to really let set in. For a lot of years the idea was being tough on crime,” Oliva said recently. He added, though, that data showing the harms of these policies “started a conversation. I think that conversation is now maturing.”

I am sorry to see that Florida is not moving forward on bolder reforms, but there is still good reason to celebrate reform efforts finding expression in this historically tough state.  Given that it took a full 40 years to ramp up incarceration level to historical levels, nobody should expect changes in the forces and laws developed in the tough era to happen quickly or without lots of fits and starts.

May 4, 2019 in Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, May 03, 2019

"When Plea Bargaining Became Normal"

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

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

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

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

Wondering, after 100 judges confirmed, if Trump judiciary has had much impact on sentencing jurisprudence

This Washington Examiner article, headlined "Senate confirms Trump's 100th judicial nominee," has prompted the wondering in the title of this post. Here is the background:

President Trump hit another milestone in his efforts to reshape the federal judiciary, with the Senate clearing his 100th judicial nominee Thursday.

The president and Republican-controlled Senate have made judicial nominations a top priority, and the confirmation of Rodolfo Ruiz to the U.S. District Court for the Southern District of Florida brought the number of Trump's judicial appointments into triple digits.

In addition to confirming Ruiz, the Senate is also set to clear two more nominees to federal district courts in Puerto Rico and Pennsylvania. If those two nominations win approval, Trump will have tapped 102 judges to the federal bench.

Trump’s judicial appointments include two Supreme Court justices, Neil Gorsuch and Brett Kavanaugh, 37 federal appeals court judges, and 61 federal district court judges....

While Trump has seen great success in remaking the federal bench, his efforts have been met by resistance from Senate Democrats, who have criticized the president for the lack of diversity among his judicial picks. Trump’s judicial nominees are also young, ensuring they will leave a conservative stamp on the federal courts that will endure for decades....

More than three dozen judicial nominees are still awaiting votes on the Senate floor, including two of the president’s picks for the 9th U.S. Circuit Court of Appeals. The San Francisco-based court is often the target of Trump’s frustration, as it has ruled against a number of the administration’s policies, and is considered the country’s most liberal appeals court. But if the Senate approves Trump’s two nominees to the 9th Circuit, it would bring the court closer to parity. Last month, Trump flipped his first appeals court, the 3rd U.S. Circuit Court of Appeals, which now has a majority of Republican-appointed judges.

On a day-to-day basis, the group of judges that matter most in the federal sentencing world are district judges, and I would love to hear from practitioners if they think any (or many) of the 61 federal district court judges appointed by Prez Trump approach sentencing in distinctive ways. I know I have seen more than a few notable circuit opinions authored by some of the circuit judges appointed by Prez Trump, but I am not able to follow all circuit jurisprudence close enough to see if an ever-growing number of new circuit judges is significantly shifting existing circuit jurisprudence.

Of course, the Supreme Court work of Justices Gorsuch and Kavanaugh (and any future SCOTUS nominees) are sure to have biggest long-term impact on sentencing jurisprudence.  The impact of these new Justices has already been seen in more than a few capital cases, and I am paying close attention to the Haymond case (background here) in part because it should provide another interesting indication of where a new Trump-impact judiciary may be headed on important sentencing issues.

Thoughts or experiences, dear readers, concerning the 100 newest federal judges and sentencing?

May 3, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Thursday, May 02, 2019

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, May 01, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Terrific vision and plans in "Beyond Guilt," a new project of the Ohio Justice & Policy Center

Cropped-bg_ojpc_gavelI am so very pleased to see the announcement of a great new project by a leading criminal justice reform group in the Buckeye State. Specifically, the Ohio Justice & Policy Center (OJPC) has just launched "Beyond Guilt," which its website says "aims to do for over-punished prisoners who admit guilt what innocence projects have for wrongfully convicted persons who claim actual innocence."  I am especially drawn to the "Strategies" discussion set out in the new project's "Our Mission" statement, which I will quote here:

Beyond Guilt will seek to do for over-punished prisoners who admit guilt what innocence projects have done for wrongfully convicted persons who claim actual innocence.  Beyond Guilt is OJPC’s answer to criminal legal system reform efforts that focus narrowly on a more palatable side of the reform movement — freeing innocent prisoners and people convicted of low-level, non-violent offenses.  Unfortunately, current reform efforts leave many behind, particularly individuals convicted of more serious offenses, including violent crimes. Beyond Guilt will advance reform initiatives to include people who have paid their debt to society for serious crimes and can safely be released.  The project will do so in four ways:

First, Beyond Guilt will identify unfairly sentenced Ohio prisoners who illustrate widespread problems in our criminal legal system (e.g. imposition of life sentences for felony-murder; life without parole sentences for youthful offenders; broken parole systems that refuse to provide a second chance) and then fight for their release.  The project will represent individuals who have served significant portions of their sentences and can demonstrate rehabilitation within the prison walls and who have the skills and support systems on the outside to continue the process of rehabilitation once they are released.  Whenever possible, Beyond Guilt will partner with prosecutors, law enforcement officers and crime survivors who can help convince courts to release prisoners through various avenues.

Second, Beyond Guilt will lift up the stories of the people it represents to humanize these individuals and other prisoners like them whom society writes off for committing violent crimes.  The project will tell their stories through a variety of means, including traditional media, social media, film and a blog hosted on a dedicated Beyond Guilt website.  The project will also facilitate in-person meetings between its incarcerated clients and legislators who can benefit from seeing, face to face, the impact of overly punitive sentencing laws.  The goal is to enable our clients to tell their own stories, to be living breathing testaments to the power of people to change, and to become disciples, who through their stories, can inspire others to care about those that they left behind in prison.

Third, Beyond Guilt will partner with its clients — both those who are freed and those who remain incarcerated — to push for reform of Ohio sentencing laws that overly punish people who have committed serious crimes and parole systems that keep offenders locked up for longer than they need to be.

Fourth, Beyond Guilt will seek to build a national network of similar projects that work to reform sentencing practices for people convicted of violent crimes and to promote evidence-based ways to reduce lengthy sentences without compromising public safety.  Beyond Guilt will partner with law schools and public defender offices to build this network and with community and faith-based groups who work with returning citizens who need assistance once released.

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

Monday, April 29, 2019

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

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

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

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

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

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

More concerns expressed about Hudson Institute's place in developing key piece of FIRST STEP Act reforms

In this post a few weeks ago, I flagged this Mother Jones article discussing criticisms of the Justice Department's pick of the Hudson Institute to host the Independent Review Committee required by the FIRST STEP Act to help DOJ develop and implement the Act's risk and needs assessment tools and recidivism reduction programs.  This new Salon article, headlined "Is the Trump Justice Department trying to sabotage the First Step Act?," follows up with a focus on a this joint statement released last week by Representatives Jerrold Nadler and Karen Bass.  Here are excerpts:

House Judiciary Committee Democrats are raising the alarm over a move by the Justice Department that would give a conservative think tank opposed to criminal justice reforms a key role in implementing the First Step Act.  That bill, signed into law by President Trump in December, combines limited sentencing reforms with measures designed to allow current inmates to shorten their sentences by participating in evidence-based training programs.

But despite the president’s support for the measure, the Trump Justice Department has taken a step that appears aimed at undercutting the act. Earlier this month, the DOJ’s National Institute of Justice announced that it had selected the Hudson Institute to host the Independent Review Committee (IRC) mandated under the act.

In a joint statement released Tuesday, House Judiciary Committee Chairman Jerrold Nadler, D-NY., and Subcommittee on Crime, Terrorism and Homeland Security Chairwoman Karen Bass, D-CA., sharply questioned the decision. “Our concerns about this decision remain” even after staff was briefed by DOJ, the pair said.

Under the act, the IRC’s function is to create independent, unbiased oversight of the law’s implementation and to ensure that reforms are carried out in a bipartisan and evidence-based manner.  The act calls on the National Institute of Justice to “select a nonpartisan and nonprofit organization with expertise in the study and development of risk and needs assessment tools.”

The Hudson Institute doesn’t fit that description.  A bastion of neo-conservative thought, the institute was founded in 1961 by uber-Cold Warrior Herman Kahn, whose quest for “winnable” nuclear war strategies inspired Stanly Kubrick’s "Dr. Strangelove."  Its primary interests are advancing militaristic security policies and a pro-Israel and Islamophobic agenda in the Middle East, although it offers up neo-conservative critiques of domestic social and economic issues as well.

“The Hudson Institute appears to have little or no expertise in the study and development of risk and needs assessment tools,” Nadler and Bass wrote. 

That opinion was seconded by Marc Mauer, executive director of the Sentencing Project, a Washington, D.C.-based non-profit dedicated to working for a fair and effective U.S. criminal justice system. “The Hudson Institute has no interest or expertise in criminal justice policy, and to the extent they do have any opinion about policy, they’re very hostile to the kinds of provisions that are in the First Step Act,” Mauer said. “It’s a strange choice when there are so many other reputable think tanks and organizations that do have experience in these issues.”

Hudson’s chief operating officer is George W. Bush-era drug czar John Walters, which raised another red flag for Mauer: “Walters is one of the premier drug warriors of the past 20 years,” he said. “He’s the co-author, with John Dilulio, of Body Count, that book from the 1990s that spread the thoroughly discredited ‘superpredators’ myth.”

In their statement, Nadler and Bass noted that DOJ was not forthcoming when queried about why Hudson was chosen and suggested that perhaps the decision has come through other-than-conventional channels. “Committee staff questioned DOJ representatives charged with overseeing First Step Act implementation as to why the Hudson Institute was selected and were told that DOJ representatives did not know,” they explained. “Staff asked whether the Hudson Institute has ever studied or developed a risk and needs assessment tool and were told that DOJ representatives did not know. Staff asked on what date the Hudson Institute was selected and were told that DOJ representatives did not know. Staff asked what process was used to select the Hudson Institute, and again were told that DOJ representatives did not know.”...

“DOJ is either paying short shrift to implementing critical elements of the First Step Act or substituting its own perspective over the will of Congress,” they added. “We ask that NIJ immediately rescind this selection and appoint an organization that comports with the mandates under the First Step Act. Congress will remain vigilant and demands that DOJ carry out the letter and spirit of the First Step Act.”

Does President Trump know that somewhere in the Justice Department his minions are working to undercut the bill he signed?  Does he care?

A few of many prior related posts on FIRST STEP Act implementation:

April 29, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Sunday, April 28, 2019

NYU Center reviewing historical state clemency grants ... starting with Pennsylvania

As detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has long been engaged with clemency reform, and its latest project is focused on important state stories:

The Center has launched a project studying historical state clemency grants and the role that local prosecutors played in the grant process.  As part of the project, Center Fellow Ben Notterman '14 has undertaken a review of historical state clemency grants in a number of states, both to understand the types of crimes for which clemency used to be granted, as well as the role that prosecutors played in recommending or opposing specific grants and advising government decision-makers.  We anticipate publishing reports on individual state practices as we complete them.

The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and it is available at this link.  Here is hoe it gets started:

Pennsylvania law automatically imposes life imprisonment for first- and second-degree murder, including felony murder, which requires no intent to kill.  It is also one of only five states that categorically excludes lifers from parole consideration; the only way for a lifer to be released is by clemency.  For a time, the State’s harsh sentencing policies were tempered by a practice of commuting several dozen life sentences each year.  That changed around 1980, when commutations in Pennsylvania fell off dramatically.  With few exceptions, clemency in the Keystone State remains in a state of a disuse.

April 28, 2019 in Clemency and Pardons, Data on sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, April 27, 2019

Should reform advocates urge Prez Trump to embrace new proposed federal Clean Slate Act as sound Second Step?

Cleanslatecampaign-feature-2The question in the title of this post is prompted by these two recent press stories about federal criminal justice reform:

Let's begin my pitch with excerpts from the first of these pieces:

President Trump began the month hosting a White House celebration with people freed from prison by the First Step Act. He told the April Fools' Day gathering the White House would work on a Second Step Act "right away."  Despite the day, Trump was not joking. But he was also not correct.

Sources tell the Washington Examiner that the White House is in fact not preparing a Second Step Act package to follow the landmark criminal justice reform law, which is Trump's only major bipartisan legislative achievement.  “There’s definitely not a Second Step Act,” said a source who works on White House reform efforts and helped with Trump’s April 1 speech, a draft of which did not mention new legislation.

The White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as Sen. Tom Cotton, R-Ark.  “One of the most important things we do in the second step is to get the first step implemented,” said Mark Holden, general counsel of Koch Industries and a prominent reform advocate.

It is unclear if Trump misspoke when he said: "Today, I am announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records. And that’s what we are starting right away."  A White House official said that Trump "wants to bring more fairness" to the legal system and "you can expect more legislation to address the second steps in the future," but that the First Step Act "will take a year to fully implement," diverting focus from additional legislation....

“There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Because there are so many important elements to the FIRST STEP Act, I think reform advocates are well advised to be laser focused on implementation issues in the short term.  The impact of FIRST STEP is still very much under development as the reach of the new sentencing/prison reforms are being defined by the judiciary and determined by executive branch officials (especially related to the risk/needs tools and prison programming).  It is not unreasonable for legislators to want to assess the initial impact of the new sentencing and prison laws before moving on to further proposals. (This is one reason I am so eager for the US Sentencing Commission to start providing real-time updates on the FIRST STEP Act.  Lawmakers cannot assess the FIRST STEP Act without data on its implementation.)

Further, as the 2020 election season heats up with criminal justice reform already becoming a topic of considerable conversation, the politics surrounding additional sentencing and prison reforms  grow dicier.  The recent commentary by Jared Kushner states that the FIRST STEP Act "nearly died dozens of times along the way" due to the persistent challenges of navigating the tribal politics of DC.  The political tribes, between and within parties, are likely to be even harder to manage over the next 18 months with a major election looming.

And yet, given Prez Trump's important statement about the importance of "successful reentry and reduced unemployment for Americans with past criminal records," I think a new bipartisan bill concerning record clearing could and should be worth focused support.  Here are a few details about a federal Clean State Act proposal via the Politico article linked above:

An unlikely pair of House members are making a push for a “second chance” law for people convicted of certain low-level federal offenses, with hopes to repeat Congress’ unexpected victory on criminal justice reform last year.  Reps. Lisa Blunt Rochester, a Democrat from Delaware, and Guy Reschenthaler, a Republican from Pennsylvania, introduced the Clean Slate Act on Tuesday, which would automatically seal a person’s record if he or she has been convicted of possession of drugs, including heroin, as well as any nonviolent offense involving marijuana.

The intention, they say, is to eliminate barriers to employment, education and housing that are common for people convicted of crimes.  “I’ve seen so many stories of people who, because of a minor offense, it has stuck with them for the rest of their lives,” Blunt Rochester said in an interview Tuesday, calling her bill the “next logical step” after last year’s landmark package of sentencing and prison reform.  The bill has won support from what Blunt Rochester described as “strange bedfellows” — the liberal Center for American Progress and the conservative FreedomWorks....

Both lawmakers said they hope the bill can be a rare area of common ground in the coming weeks as Senate GOP leaders have flatly rejected most bills sent to them by House Democrats. Blunt Rochester said she’s spoken with House Democratic leaders and is optimistic about a floor vote.... Sen. Bob Casey (D-Pa.) plans to introduce a similar bill on the Senate side and is in talks with Republicans to become a co-sponsor.

Because the Clean Slate Act addresses criminal records after a persons has fully completed a sentence, there really is no direct overlap between its provisions and laws altered by the FIRST STEP Act and so there really is no reason to await FIRST STEP implementation before taking action on this important distinct front.  Indeed, the Clean Slate Act seeks to address reentry and employment issues mentioned by Prez Trump earlier this month and does so in a manner that could itself further enhance the long-term success of the FIRST STEP Act.

As long-time readers know, I am always pragmatically pessimistic about the work of Congress in this space.  But I think the next 18 months provides a unique window of time for moving forward with a Clean Slate Act or some other expungement reform, and I hope reform advocates will all consider jumping on this particular reform bandwagon. 

April 27, 2019 in Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, April 26, 2019

"Individualized Sentencing"

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

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

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

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

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

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

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

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

Recapping a notable week of SCOTUS criminal justice arguments

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

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

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

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

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

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

Thursday, April 25, 2019

Maryland GOP Gov finally commutes notable life sentence (and others) following notably stingy prior Gov

Van Jones received considerable grief when he said earlier this year at CPAC that the "conservative movement ... is now the leader" on criminal justice reform. But this new story out of Maryland, headlined "Maryland Gov. Hogan commutes life sentence of 'model inmate' from Baltimore who's served 47 years in killing," provides another example of a GOP official being more progressive in the criminal justice arena than an official from the other side of the aisle. Here are the details:

Gov. Larry Hogan’s office said Wednesday the governor has commuted the life sentence of Calvin Ash, a 68-year-old Baltimore man who has spent nearly his entire adult life behind bars despite multiple recommendations from the parole commission for his release.

A spokesman for Hogan said the governor decided this week to accept an 8-0 vote of the parole commission that Ash be freed after serving 47 years for fatally shooting his wife’s boyfriend in the 1970s, when Ash was 21 years old.

Hogan also commuted sentences this week of two other inmates, but did not release their names....

Hogan’s actions mean the governor has now commuted the sentences of 15 prisoners since he took office in 2015 — including at least five inmates serving life sentences.  The previous governor, Democrat Martin O’Malley, released three prisoners through commutation during his eight years in office....

Ash has been imprisoned since he killed the boyfriend of his estranged wife on May 2, 1972.  On that day, Ash — who was an employee of Union Memorial Hospital — shot and killed Thomas Robinson, 24, inside a rowhouse in the 1800 block of N. Rosedale St. in West Baltimore.  Ash confessed to police during questioning, saying: “We were still seeing one another, but then she got on with someone else.”...

He was convicted of murder and sentenced to life in prison with the possibility of parole. David Blumberg, chairman of the state’s parole commission, said that for more than a decade, the panel has repeatedly recommended that Ash be freed....

Ash’s case has been in the news for years.  In 2004, the Maryland Parole Commission approved his release. But in 2006, O’Malley rejected the recommendation without comment.  In 2009, the commission again voted 5-2 to commute Ash’s sentence, but that, too, was rejected....

Maryland governors over time have adopted different stances on their power to commute sentences. In the mid-1990s, Democratic Gov. Parris Glendening, issued a so-called “life means life" edict — giving out zero commutations — as he attempted to negotiate an end to the death penalty in the state.  Glendening has since disavowed that approach.

Republican Gov. Robert Ehlirch, who served between 2003 and 2007, considered parole on a case-by-case basis.  He commuted 18 sentences, including those of five lifers.

O'Malley fought to repeal the death penalty and he commuted the sentences of Maryland’s four remaining death-row inmates to life without parole.  But when it came to releasing prisoners sentenced to life with the possibility of parole, he took a hard line.  He granted clemency to three in 2012, but approved no non-medical paroles.

Hogan has presided over a decline in Maryland’s prison population.  Maryland’s inmate census has fallen below 18,000 for the first time in nearly three decades....  The 2016 Justice Reinvestment Act is often credited for helping to reduce Maryland’s prison population.  The landmark legislation sought to divert nonviolent offenders from prison into drug treatment and other programs and included changes to mandatory minimum drug penalties.  It went into effect in October 2017.

April 25, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)