Monday, December 10, 2018

Congress finally enacts "Paroline fix" that should improve victim restitution in federal child porn cases

Long-time readers may recall regularly blogging here about federal district and circuit opinions struggling to figure out whether and how courts could impose restitution awards/punishments on federal offenders convicted only of downloading child pornography images.  Because the child porn restitution questions produced various splits in the lower courts, the Supreme Court took up and "resolved" these issues in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  But because Paroline required federal judges, in the words of one district court, to make "essentially a wild-ass guess" when trying to determine the appropriate level of restitution for a victim in a child porn downloading case, this issue continued to cry out for a legislative fix in the wake of the Paroline ruling.

A few days after the Supreme Court ruled in Paroline, I asked in a post "Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?".  And a few years after the Supreme Court ruled in Paroline, victim advocates Paul Cassell and James Marsh talking through these issues in a law review article "Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response".  Now, a little more than 55 months after the Supreme Court ruled in Paroline, Congress managed to get a Paroline fix done in a bipartisan fashion. 

Specifically, Congress used its lame duck session to finalize a long-discussed Paroline fix in the form of an amendment to federal restitution statutes called the "Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018."   President Trump, as reported in this press release, on Friday signed this legislation into law.  Senator Orrin Hatch, who played a leading role in getting this enacted, released this press statement celebrating and explaining this new legislation:

Senator Orrin Hatch (R-UT), the senior Republican and President Pro Tempore of the US Senate, released the following statement after the President signed the Amy, Vicky, and Andy Child Pornography Victim Assistance Act into law. Senator Hatch introduced the legislation alongside Senators Dianne Feinstein (D-CA), Chuck Grassley (R-IA), Amy Klobuchar (D-MN), John Cornyn (R-TX), and Pat Toomey (R-PA). This bill recognizes the unique kind of harm caused by child pornography and requires restitution in a manner that will support victims.

“I’m thrilled the President has signed the Amy, Vicky, and Andy Act into law. This is a momentous day and many years in the making.” Hatch said. “This bipartisan legislation will provide meaningful assistance for child pornography victims to support their recovery and allow them to reclaim their lives. I am proud of this legislation and look forward to seeing it change the world for good.” The legislation establishes more relevant standards for child pornography victims who seek restitution from defendants and gives victims the alternative of a one-time fixed compensation payment from the existing Crime Victims Fund. The bill also allows victims access to the images depicting them, which can be important for victim identification, expert testimony, forensic review, and treatment.

The bill passed in the Senate by unanimous consent in January. With the help of Congressman Trey Gowdy (R-SC), the House sponsor of the bill, and House Judiciary Chairman Bob Goodlatte (R-VA), the House of Representatives passed an amended version of the bill by unanimous consent. In November, the Senate passed the amended bill by unanimous consent, and ... was signed by the President into law.

The bill is named after victims depicted in some of the most widely circulated child pornography series in the world. “Amy,” “Vicky,” and “Andy” all strongly support the bill.

The Amy, Vicky, and Andy Child Pornography Victim Assistance Act includes the following provisions:

  • Findings that focus on the unique nature of child pornography crime and how it harms victims
  • A more relevant and predictable definition of “full amount of a victim’s losses”
  • Restitution: --- Child pornography production: victims receive full amount of their total losses; ----Child pornography trafficking: victims receive from each defendant a minimum of $3,000
  • Compensation: --- Victims of child pornography trafficking are entitled to receive a one-time payment of $35,000 in defined monetary assistance (which is indexed to inflation) from a Child Pornography Victims Reserve (CPVR) within the federal Crime Victims Fund (CVF); --- Caps fees for attorneys representing a victim seeking defined monetary assistance at 15%; --- The court must assess defendants in child pornography cases to contribute to the CPVR: up to $17,000 for possession, up to $35,000 for distribution, and up to $50,000 for production crimes; --- The CPVR will be capped at $10 million
  • Victims of child pornography trafficking will enjoy the same priority in restitution payments as victims in other restitution statutes
  • Child pornography victims have equal rights with criminal defendants to review the child pornography depicting them at a government facility or court for the purposes of furnishing expert testimony
  • The Department of Justice must deliver a report to Congress within two years after passage about the Act’s implementation including an assessment of the funding levels for the Child Pornography Victims Reserve

I have long been a support of more effective and predictable restitution mechanisms in these  kinds of cases and others, so I welcome this overdue development.  Because few have been reporting consistently on the impact of the Paroline ruling in federal cases, I am especially glad this legislation give the Justice Department a responsibility to report on this new legislation's effectiveness.

A few (of many) prior posts on Paroline and child porn restitution issues mostly from some years ago:

December 10, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

"Class v. United States: Bargained Justice and a System of Efficiencies"

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

In 2018, the United States Supreme Court ruled in Class v. United States that a defendant does not inherently waive his or her right to appeal constitutional claims simply by entering an unconditional plea of guilty. Rather, the Court determined such waivers must be express.  While the issue decided in Class was relatively straightforward, the case stands more importantly as another pillar in the growing body of modern plea-bargaining jurisprudence.  In particular, Class is of note because the facts of the case and the discussions surrounding the appeal raise fundamental questions regarding the operation of the plea-bargaining machine, the psychology of defendant decision-making, and the voluntariness of plea bargaining given our growing understanding of the phenomenon of factually innocent defendants falsely pleading guilty.

This article begins with an examination of Class, including the incentives that led the defendant to plead guilty despite his belief that the statute of conviction infringed his constitutional rights.  The article then examines the shadowy rise of plea bargaining during the 19th and 20th centuries and the recent focus on plea bargaining by the Supreme Court since its 2010 decision in Padilla v. Kentucky.  This analysis of recent plea-bargaining case law will illustrate that fundamental issues are beginning to rise to the surface regarding defendant decision-making and voluntariness in the plea context, including the reliability of admissions of guilt in return for plea bargains and the phenomenon of false pleas.  The article, therefore, next examines recent psychological research on these topics, including research demonstrating that factually innocent individuals will falsely confess in return for the benefits of a bargain and research finding that pretrial detention is a driver of false pleas.

Finally, the piece considers the ramifications of growing evidence that plea bargaining has a voluntariness and reliability problem.  Along with considering ways to address these concerns, the article proposes that these revelations will inevitably lead us to face a broader question.  What does it mean if we have adopted a criminal justice system that embraces efficiency at the expense of accuracy?

December 10, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

SCOTUS rules unanimously that ACCA predicates can include all sorts of burglary

The Supreme Court this morning handed down its first full sentencing opinion of the Term, and the opinion in yet another Armed Career Criminal Act dispute over statutory interpretation is not all that interesting or all that surprising.  Justice Breyer wrote a short opinion for a unanimous court in US v. Stitt, No. 17-765 (S. Ct. Dec. 10, 2018) (available here), and it gets started this way:

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term.  The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes.  18 U. S. C. §924(e).  Those prior convictions include convictions for “burglary.” §924(e)(2)(B)(ii).  And the question here is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.  We hold that it does.

And here are a few paragraphs from the opinion's substantive discussion:

The word “burglary,” like the word “crime” itself, is ambiguous.  It might refer to a kind of crime, a generic crime, as set forth in a statute (“a burglary consists of behavior that . . . ”), or it might refer to the way in which an individual offender acted on a particular occasion (“on January 25, Jones committed a burglary on Oak Street in South San Francisco”).  We have held that the words in the Armed Career Criminal Act do the first.  Accordingly, we have held that the Act requires us to evaluate a prior state conviction “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”  Begay v. United States, 553 U.S. 137, 141 (2008). A prior state conviction, we have said, does not qualify as generic burglary under the Act where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 579 U. S. ___, ___ (2016) (slip op., at 19).  The case in which we first adopted this “categorical approach” is Taylor v. United States, 495 U. S. 575 (1990).  That case, which specifically considered the statutory term “burglary,” governs here and determines the outcome.

In Taylor, we did more than hold that the word “burglary” refers to a kind of generic crime rather than to the defendant’s behavior on a particular occasion.  We also explained, after examining the Act’s history and purpose, that Congress intended a “uniform definition of burglary [to] be applied to all cases in which the Government seeks” an enhanced sentence under the Act.  Id., at 580–592.  We held that this uniform definition includes “at least the ‘classic’ common-law definition,” namely, breaking and entering a dwelling at night with intent to commit a felony.  Id., at 593.  But we added that it must include more.  The classic definition, by excluding all places other than dwellings, we said, has “little relevance to modern law enforcement concerns.” Ibid. Perhaps for that reason, by the time the Act was passed in 1986, most States had expanded the meaning of burglary to include “structures other than dwellings.” Ibid. (citing W. LaFave & A. Scott, Substantive Criminal Law §§8.13(a)–(f) (1986)).

For a small number of federal defendants facing ACCA's long mandatory minimum based on a quirky prior crime, this ruling is very important and consequential.  For others, not much too see here.

December 10, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

After Virginia jury convicts James Fields of first-degree murder for killing in Charlottesville, same jury to begin considering sentence

As indicated in this brief AP report headlined "Jury to recommend sentence for white nationalist," a high-profile jury sentencing gets started today:

A man convicted of first-degree murder for driving his car into counterprotesters at a white nationalist rally in Virginia faces 20 years to life in prison as jurors reconvene to consider his punishment.

The panel that convicted James Alex Fields Jr. will hear more evidence Monday before recommending a sentence for Judge Richard Moore.

Fields was convicted Friday of killing Heather Heyer during last year's "Unite the Right" rally in Charlottesville, organized to protest the planned removal of a statue of Confederal Gen. Robert E. Lee. The 21-year-old Fields, of Maumee, Ohio, also was found guilty of injuring dozens of others by driving into a crowd of people who were marching peacefully after the rally.

I know very little about Virginia's sentencing process, and I am now very curious about what they are allowed to hear at this stage.  I do know that Virginia jurors are not told about sentencing guidelines that would be applicable and considered at a judicial sentencing.  And I wonder if they can be told about the fact that the defendant here is also facing dozens of federal charges.  Here is a little about recent history of jury sentencing from the Virginia Sentencing Commission's 2018 Annual Report (from pages 25-27):

There are three methods by which Virginia’s criminal cases are adjudicated: guilty pleas, bench trials, and jury trials.  Felony cases in circuit courts are overwhelmingly resolved through guilty pleas from defendants, or plea agreements between defendants and the Commonwealth.  During the last fiscal year, 91% of guideline cases were sentenced following guilty pleas.  Adjudication by a judge in a bench trial accounted for 8% of all felony guidelines cases sentenced.  During FY2018 1.2% of cases involved jury trials. In a small number of cases, some of the charges were adjudicated by a judge, while others were adjudicated by a jury, after which the charges were combined into a single sentencing hearing....

In FY2018, the Commission received 270 cases adjudicated by juries.  While the concurrence rate for cases adjudicated by a judge or resolved by a guilty plea was at 82% during the fiscal year, sentences handed down by juries concurred with the guidelines only 39% of the time.  In fact, jury sentences were more likely to fall above the guidelines than within the recommended range.  This pattern of jury sentencing vis-à-vis the guidelines has been consistent since the truth-in-sentencing guidelines became effective in 1995. By law, however, juries are not allowed to receive any information regarding the sentencing guidelines....

In cases of adults adjudicated by a jury, judges are permitted by law to lower a jury sentence.  Typically, however, judges have chosen not to amend sanctions imposed by juries. In FY2018, judges modified 16% of jury sentences.

December 10, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Sunday, December 09, 2018

Rounding up negative reactions to William Barr's nomination to be next US Attorney General

Unsurprisingly given his prior record as Attorney General and various statements on reform efforts past and present, folks in the criminal justice and drug policy reform community are not too keen of Prez Trump's decision to nominate William Barr to be the next US Attorney General.  Here is an extended sampling of press releases and articles on this front:

From ACLU, "No Relief: William Barr Is as Bad as Jeff Sessions — if Not Worse"

From The Brennan Center, "William Barr Is Out of Step on Criminal Justice Reform"

From Drug Policy Alliance, "Barr Record on Drug War and Criminal Justice Reform is Appalling"

From FAMM, "FAMM Statement on the Nomination of William Barr for U.S. Attorney General"

From The Intercept, "Trump’s Pick For Attorney General Pushed For Military Strikes On Drug Traffickers, Questioned Asylum Law"

From Leafy, "What Trump’s New AG Pick Could Mean for Cannabis"

From Marijuana Moment, "Where Trump’s Pick For Attorney General Stands On Drug Policy"

From Quartz, "Trump nominee William Barr pushed for the death penalty to “send a message to drug dealers"

From Vox, "William Barr helped establish mass incarceration. Now Trump wants him as attorney general."

Largely because of points made in these pieces, William Barr certainly was not the AG candidate I was rooting for.  (Retired DC Circuit Judge Janice Rogers Brown was a name thrown out at one point that struck me as especially interesting.)  But though I share many of the concerns expressed in the press releases and articles assembled above, I am also hoping and rooting that Barr's thinking on various crime and punishment issues may have evolved, at least a little bit, since his last stint as Attorney General a quarter century ago.  Particularly given how a number of "tough on crime" defenders of mandatory minimums and other harsh federal sentencing laws have come around in just the last few years to be vocal advocates for reform (e.g., Representative James Sensenbrenner and Senator Charles Grassley), I am not prepared quite yet to fear that an AG Barr will be as bad or worse than an AG Sessions.  But we will perhaps find out before too long.

Prior related posts:

December 9, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Saturday, December 08, 2018

"Bias In, Bias Out"

The title of this post is the title of this recent article authored by Sandra Mayson that I just came across on SSRN. Here is its abstract:

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime.  As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology.  The deep problem is the nature of prediction itself.  All prediction looks to the past to make guesses about future events.  In a racially stratified world, any method of prediction will project the inequalities of the past into the future.  This is as true of the subjective prediction that has long pervaded criminal justice as of the algorithmic tools now replacing it.  What algorithmic risk assessment has done is reveal the inequality inherent in all prediction, forcing us to confront a much larger problem than the challenges of a new technology.  Algorithms shed new light on an old problem.

Ultimately, the Article contends, redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk.  The Article argues that criminal law and policy should, first, more clearly delineate the risks that matter, and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion — in which case they cannot justify state coercion.  To the extent that we can reliably assess risk, on the other hand, criminal system actors should strive to respond to risk with support rather than restraint whenever possible.  Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support.

December 8, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Even more great clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  And last month in this post I reported that the Oklahoma Pardon and Parole Board had recommended commutations for a sizable group of offender, and this past week Governor Mary Fallin officially approved 21 commutation requests.  This local article reports on these development, and here are excerpts (with some emphasis added): 

Oklahoma Governor Mary Fallin has approved commutation requests for 21 non-violent offenders. The 21, whose names were read off one-by-one Wednesday by the governor, made it to the final step in a three-stage process by receiving a favorable vote from at least a simple majority of the five-member Oklahoma Pardon and Parole Board.

"We can keep people who are dangerous to society locked up, for those who have addiction issues that are non-violent, low-level offenders, there's a better way of doing this in our nation," Fallin said.  "On a personal note, this is just me saying this but, as we prepare for the Christmas holiday season, let's not forget there is a God of second chances."

Those being assisted through the commutation campaign are serving 10 years or longer for crimes that now carry lesser punishments following recent reforms approved by voters and legislators.

One of those was Juanita Peralta. Her daughter, Destiny Pinon, told News 4 that her mother was serving a 15-year sentence after she was arrested for a DUI while in a drug court program. Peralta has served about two years of her sentence in Taft, Oklahoma. "It’s unreal. I mean, it’s a good unreal feeling," Pinon said.  "When they said her name, it was just a rush of emotions."...

The 21 offenders were sentenced to a cumulative 349 years of incarceration. Wednesday’s action shaved 306 years off those incarcerated.

Richard Quillen, along with other parents and family members, was able to break the news over the phone to his daughter, Peyton Quillen. She had been serving time in Tulsa for a drug-related offense. "Governor Mary Fallin just signed your release papers and, as of this moment, you are a free woman," Richard told his daughter over the phone. "Okay, I love you."

Edmond resident Alyshea Rains, the mother of commuted offender Alexis Rains, told News 4 that the past two years without her daughter has been nothing short of tough. Alexis, now 24, was sentenced to 10 years for drug possession. She will return home to her now 5-year-old daughter....

News 4 spoke with Kayla Jeffries on Wednesday moments after she was released from the Kate Barnard Correctional Center. Her 20-year sentence was commuted after she was arrested for drug infractions at the age of 18. Jeffries served two and a half years at Mabel Bassett Correctional Center and six months at the Kate Barnard Correctional Center. “It’s surreal. I’m praising God. I’m thanking God every step I take,” she said. “I had my youngest daughter at Mabel Bassett, so I haven’t really had any bonding or or one on one time with her so I’m really looking forward to that and to just being a good mom and telling my story.”

Next Wednesday, the Oklahoma Pardon and Parole Board will consider sending eight more commutation applicants to the governor.

Prior related posts:

December 8, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, December 07, 2018

Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten

The US stock market probably can lay claim to being the most volatile and unpredictable metric since last months election, but the ups and downs surrounding the possible enactment of the FIRST STEP Act during the lame duck Congress have certainly been knocking me for a loop.  As of yesterday evening, as reflected in this post, I was ready to put a folk in reform efforts and conclude they were done for now.  But a new day brings all sorts of new developments: (1) Senator Ted Cruz issued this press release reporting "the White House and the sponsors of this bill ... have decided to accept [his] amendment" to exclude violent offenders from being released early so that now he believes "the Senate should take up and pass this important legislation, and (2) Prez Donald Trump posted this tweet:

This new Politico article, headlined "Trump leans on McConnell to vote on criminal justice reform," provides the latest full update, including these mostly encouraging details:

President Donald Trump pressured Senate Majority Leader Majority Leader Mitch McConnell on Friday to pass criminal justice reform, hoping to push a reluctant McConnell to put it on the floor during a crowded lame duck session. After going mostly silent on the bill for several weeks, Trump touted the bill at an event in Kansas City and then singled McConnell out on Friday on his Twitter feed....

A person familiar with the conversations between the two men said the president was using a light touch on the bill, but would call McConnell out if he felt the bill was drifting away. “McConnell said if we’ve got 65 votes then he would allow the bill to get on the floor. And we’ve far exceeded that. And now the president is pushing the president to get the floor time," the person said. "We need to figure out exactly how this fits in in the floor time. Until we can answer that question all the pressure in the world won’t make a difference. What [Trump has] done is he’s expressed very clearly to McConnell that he wants him to figure it out."

Senate Judiciary Chairman Chuck Grassley (R-Iowa) also talked to Trump on Friday and tweeted that "Trump told me he wants it done THIS CONGRESS."

The Trump tweet came on top of a day of rising public support for the bill, with Sen. Ted Cruz (R-Texas) endorsing a revised version of criminal justice reform. The legislation, which would relax some federal sentencing guidelines and reform the federal prison system, is being amended to “exclude violent offenders from being released early,” the Texas Republican said in a statement....

Four other senators endorsed the bill on Friday as it faces a time crunch on the Senate calendar. Sens. Thom Tillis (R-N.C.), Tina Smith (D-Minn.), Michael Bennet (D-Colo.) and Steve Daines (R-Mont.) backed the bill.  Those senators plus Cruz give the bill more than 30 official supporters in both parties, though almost the whole 49-member Democratic caucus is expected to back the bill if it comes up for a vote.

The real issue is on the Republican side, where advocates argue that about 30 of the 51 senators support it, but GOP leaders say the bill’s support is much lower.  Though conservatives like Tom Cotton (R-Ark.) have led the public charge against it, there are quieter opponents of the bill like Sen. Dan Sullivan (R-Alaska), who says his state is in the midst of a “crime wave” from similar legislation.  “It’s a very challenging time in Alaska to be focused on criminal justice reform,” Sullivan said in an interview. He said the bill should not come up this year.

The internal disagreements and opposition from the National Sheriffs’ Association have made McConnell reluctant to bring the bill to the floor, especially with just two weeks left to pass legislation to fund the government. McConnell has repeatedly indicated to the White House and his conference that finding a window to pass the criminal justice reform bill would be challenging. “Until we can kind of figure out how to get the sheriffs on board, we still have a lot of opposition in our ranks,” said Sen. John Thune of South Dakota, the No. 3 GOP leader. “Then, from a timing standpoint, how would we process that in the next two weeks?”...

Sen. Lindsey Graham (R-S.C.) said he spoke to President Donald Trump on Friday and that the president wants the bill to pass, potentially as part of the spending bill along with more money for the border wall. But that plan would surely draw broad Democratic opposition over funding for the wall. And McConnell has mentioned taking up the bill next year after Democrats take the House. But the bill's supporters say that's akin to starting all over after building a fragile compromise this year.

Some of the most recent of many prior related posts:

December 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

So what does Bill Barr now think about federal criminal justice reforms or state marijuana reforms?

The question in the title of this post is prompted, of course, by this news as reported here by CNN: "President Donald Trump has decided to nominate former Attorney General William Barr to be the next permanent head of the Justice Department, the President told reporters Friday." Here is more:

"He will be nominated for the United States attorney general and hopefully that process will go very quickly," Trump added.

Barr previously worked at the CIA in the 1970s and served in several leadership roles at the Justice Department serving under President George H.W. Bush. He ultimately served as attorney general from 1991 through 1993. He subsequently served in several executive and leadership positions at corporations, including Verizon Communications. Barr also served as a board member on CNN's parent company, Time Warner, Inc., (now Warner Media) from 2009 until 2018....

Officials at the DOJ are thrilled with Trump's selection of Barr, multiple current and former officials told CNN. He's universally seen as solid, reliable conservative, but also someone who can get confirmed. Deputy Attorney General Rod Rosenstein was "elated" by Trump's selection of Barr, according to a source close to him.

One Justice Department lawyer who had been nervous about who the President might pick praised the choice of Barr, saying it is good for morale. "As compared to other potential picks, this is a great choice," said the official. The source called Barr a "very mature choice," and said when Barr emerged as the front runner people at Justice were hoping he'd be the pick "because he's tough he's principled and he's independent."...

As for how quickly Barr could be confirmed, one congressional source notes it's usually at least two months from nomination to confirmation and said if the appropriate paperwork gets to the Hill in time, a hearing could be held in January.

South Carolina Republican Sen. Lindsey Graham, a leading contender to become the next chairman of the Senate Judiciary Committee, praised the President's selection of Barr, saying he "will provide new and much-needed leadership for the Department of Justice."...

Democratic congressional leaders criticized the President's choice. Nancy Pelosi, who is running to be the next speaker of the House, called Barr's proposed nomination "deeply concerning," adding that he "has spent the past two years auditioning for this job by stoking partisan attacks on our nation's law enforcement community, and encouraging the President to use the Justice Department as a political weapon to pursue his rivals and undermine investigations into Trump and his family's scandals."

Senate Minority Leader Chuck Schumer said Barr "will have a steep hill to climb in order to be confirmed by the Senate." Schumer demanded that Barr commit to allowing the Mueller investigation "proceed unimpeded" and that the special counsel's final report be available to Congress and the public after the investigation is completed.

As highlighted in this prior post, Barr's past history on issues of incarceration are not encouraging for advocates of federal criminal justice reform.  But lots of folks who adopted "tough-and-tougher" approaches to crime and punishment a few decades ago have become significant modern voices for all sorts of reforms.  So, I am hopeful that the coming weeks will bring thoughtful inquiries and questions concerning how would-be AG Barr would approach federal criminal justice reforms or state marijuana reforms circa 2019.

December 7, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

"George H.W. Bush’s biggest failure? The war on drugs."

The title of this post is the headline of this Washington Post commentary authored by historian Matthew Pembleton.  Here are excerpts:

And Bush’s complicated legacy does include much good, from his handling of the end of the Cold War to his support for climate science and the Americans With Disabilities Act. But it also includes some bad — specifically, a profound escalation in the War on Drugs. Ronald Reagan may have reoriented public attitudes about drugs when he pronounced in 1982, “Drugs are bad, and we’re going after them . . . And we’re going to win the war on drugs.” But, it was Bush — and later, Bill Clinton — who put real resources into the effort.

When Bush took office, the federal drug control budget was around $5 billion. When he left office in 1993, it was over $12 billion. This was the sharpest escalation in the history of the drug war and it locked the country into a strategy of punishment, deterrence and intolerance. Based on instinct rather than evidence, Bush’s approach did little to alleviate the public health crisis of addiction or halt the flow of drugs to American shores. And we remain trapped within this largely punitive approach today. So while we remember Bush as a “gentle soul,” we should also remember his role in fomenting a drug war that harmed millions of American citizens, particularly in communities of color.

In a tale retold quite a bit over the last few days, one of those citizens was an 18-year-old D.C. resident named Keith Jackson, who was arrested as part of a White House publicity stunt. In September 1989, Bush astonished the American public by brandishing a bag of crack cocaine during a nationally televised address. The drug, a seemingly bemused president remarked, “looked like candy, but it’s turning our cities into battle zones, and it’s murdering our children.”

Rather than address the underlying poverty, despair or thrill-seeking that drives destructive drug use, Bush sought to wipe out the drug menace by punishing everyone involved to the fullest extent of the law and doubling down on policing. The solution, Bush said, was “more prisons, more jails, more courts, more prosecutors,” and a $1.5 billion increase in federal police spending, the greatest single increase in the history of drug enforcement.

Jackson, meanwhile, was a hapless pawn in Bush’s theatrics. When the DEA learned that Bush’s people wanted to use crack seized near the White House as a prop for the speech, they lured the local high school student to Lafayette Square, even giving him directions to get him there. An obvious setup, the case was subsequently thrown out by two juries, but Jackson was eventually sentenced to a mandatory 10 years for selling to an undercover agent in the months leading up to his fateful September arrest.

Bush was widely mocked for the incident but remained unrepentant and paid little price. That’s because the fundamental strategy of escalating the War on Drugs enjoyed widespread bipartisan support, including significant buy-in from the black political class.... The instinct to punish drug users, particularly the poor, runs deep in American political thought, and the consensus supporting these tough-on-crime attitudes continued to harden as Bush championed the growing War on Drugs. On the first anniversary of Bush’s speech, Los Angeles police chief Daryl Gates told the Senate that casual drug users “ought to be taken out and shot.” This wholly punitive approach reached its apotheosis with the 1994 Clinton crime bill and its notorious “three-strikes” provision.

December 7, 2018 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Thursday, December 06, 2018

Yet one more round-up of news and notes as debate over the FIRST STEP Act rages on

I sincerely wish Senate Leader Mitch McConnell would schedule a vote on the FIRST STEP Act so that I would not have to keep blogging round-ups of stories and commentary surrounding the prospects of the FIRST STEP Act. But since I have seen lots of notable developments and discussion even since I did this post this morning, here goes:

UPDATE: Saving the worst for last, here are two more recent pieces suggesting the odds of enactment are growing ever bleaker:

I fear it is getting dangerously close to dust off the old Don Meredith saw, "Turn out the lights, the party's over...."

December 6, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Who Sentences | Permalink | Comments (0)

Talk of William Barr for Attorney General (and his "Case for More Incarceration")

73EAIRHZP4I6RBSCZFYYUJLMXUThis new Washington Post article reports that "Former attorney general William P. Barr is President Trump’s leading candidate to be nominated to lead the Justice Department."  Here is more: 

Barr, 68, a well-respected Republican lawyer who served as attorney general from 1991 to 1993 under President George H.W. Bush, has emerged as a favorite candidate of a number of Trump administration officials, including senior lawyers in the White House Counsel’s Office, these people said.  Two people familiar with the discussions said the president has told advisers in recent days that he plans to nominate Barr.

One person familiar with the discussions cautioned that while Barr is the leading candidate, the decision is not final and the president could decide to pick someone else.  Another person familiar with the discussions said Barr is “a really serious contender and possibly the front-runner” for the job but stressed it was impossible to predict Trump’s pick definitively until it was announced publicly.

That person said those advising the president viewed Barr as someone who knows the department well and is a good manager. Barr, this person said, also had a bluntness that is likely to resonate with the president. “He’s a serious guy,” the person said. “The president is very, very focused on [a candidate] looking the part and having credentials consistent with the part.”

Barr declined to comment.  Those familiar with the discussions said Barr, having already been attorney general, doesn’t feel a particular ambition for the position, but does feel a sense of duty to take it if offered....

Even if Barr were announced as the president’s choice this week, it could take months for a confirmation vote, given the congressional schedule.  In the meantime, acting attorney general Matthew G. Whitaker would still serve as head of the Justice Department...

Administration officials expect Barr’s nomination would be received positively by Republicans who respect his experience and Democrats who would likely view him as an old-school GOP lawyer with no particular personal loyalty to the president....

After leaving the Justice Department, Barr served in a variety of high-level corporate positions, including as general counsel and executive vice president of Verizon Communications.  He is currently a lawyer at Kirkland & Ellis and does work advising corporations on government enforcement and regulatory actions.

Any confirmation hearing for a new attorney general will likely be dominated by questions about how the nominee would handle political pressure from the White House, and oversee the ongoing Russia probe into whether any Trump associates conspired with Russian officials to interfere in the last presidential election.

Barr shares at least one of the president’s views on the probe being conducted by special counsel Robert S. Mueller III.  In 2017, when asked by The Washington Post about political donations made by lawyers on the special counsel’s team, Barr said “prosecutors who make political contributions are identifying fairly strongly with a political party” and added: “I would have liked to see [Mueller] have more balance on this group.”

Barr also wrote last year that the administration’s decision to fire James B. Comey as FBI director was “quite understandable” because, in his view, Comey had usurped the power of the attorney general when he publicly announced his recommendation not to charge former secretary of state Hillary Clinton during the investigation of her private email server.

Barr’s daughter, Mary Daly, is a senior Justice Department official overseeing the agency’s efforts against opioid abuse and addiction.

Of course, I would be even more interested to hear about Barr's views on the FIRST STEP Act than about his views on the Special Counsel. A number of folks I follow on Twitter have been quick to note this notable document coming from the Justice Department in 1992 titled "The Case for More Incarceration." Then-AG Barr said this in a brief note at the start of that document:

[T]here is no better way to reduce crime than to identify, target, and incapacitate those hardened criminals who commit staggering numbers of violent crimes whenever they are on the streets.  Of course, we cannot incapacitate these criminals unless we build sufficient prison and jail space to house them.

Revolving-door justice resulting from inadequate prison and jail space breeds disrespect for the law and places our citizens at risk, unnecessarily, of becoming victims of violent crime.

Notably, as this BJS document highlights, at the end of 1992, the federal prison population was "only" just over 80,000 and the national prison population was just over 883,000.  This subsequent BJS document two dozen years later details that by year end 2016, the the federal prison population clocked in at over 196,000 and the national prison population was over 1,526,000.  I am not at all keen to see more early 1990s era thinking about imprisonment at the Justice Department, but I certainly would like to see a return to early 1990s incarceration levels.

December 6, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Latest seemingly encouraging news on debate over FIRST STEP Act

As lots and lots of folks keep discussing and debating the FIRST STEP Act in various fora, this new Washington Examiner article brings something close to new news about the prospects for the legislation.  The lengthy piece is headlined "Influential First Step Act opponent backs some key provisions, offering hope to supporters," and here are excerpts:

A leading opponent of President Trump's push for criminal justice reform has admitted that he supports key planks of the legislation, giving reformers hope it can pass by the end of the year.

Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in the Trump-backed First Step Act.

Provisions to reduce prison sentences were added last month to satisfy senators pushing for deeper reform after less-controversial prison reform and societal reentry measures passed the House of Representatives in May. Leiser opposes the underlying bill, but said there's merit to the additions.

"This is significant because Larry has been among the loudest and most persistent critics of criminal justice reform and the First Step Act," said Koch Industries general counsel Mark Holden, a supporter of the legislation. "Having him on board with these reforms should help ease any concerns some senators may have about making our sentencing laws more proportional and just."

The First Step Act faces a tight deadline before Democrats retake the House of Representatives in January. Reform advocates fear that a divided Congress will lead to an impasse that results in no reform. Republicans are split on the bill, and Senate Majority Leader Mitch McConnell, R-Ky., has not committed to a vote. Bill supporter Sen. Lindsey Graham, R-S.C., said last month that it would get 80 votes in the Senate, but that the push would likely die when Democrats retake the House and advocate for even farther-reaching changes.

As time dwindles, Holden shared with the Washington Examiner details about a private conversation he had with Leiser, a leader of the opposition, alongside Sen. Tom Cotton, R-Ark. Holden said that nearly a year ago, Leiser said he supported three of four major sentencing changes ultimately added to the bill. In a phone call Wednesday, Leiser confirmed the account, but said that he opposes the overall package, mainly due to concerns about process and provisions that passed the House.

"What Mark Holden is trying to do is pick off the things we agree on and say we support the overall bill, [but] there are parts of the bill that we think are adverse to public safety,” Leiser said. Leiser said he supports repeal of a three-strikes life sentence for drug crimes and an expanded sentencing “safety valve” to allow judges to deviate from harsh drug penalties, though he believes the Senate bill sets the bar too low.

Leiser said he opposes a fourth major sentencing addition to the First Step Act that would retroactively reduce sentences for crack cocaine convicts punished under a since-changed law. Many such sentences, however, already were cut by former President Barack Obama.

Although he supports some of the reforms, Leiser opposes seemingly less-contentious provisions in the bill that passed the House, notably allowing inmates who participate in anti-recidivism programs to transfer early to supervised release, such as living in a halfway house. He said there's no evidence programs reduce recidivism at the federal level and that he suspects reformers are downplaying the bill's potential effects.

December 6, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Wednesday, December 05, 2018

Previewing SCOTUS (re)consideration of "separate sovereigns" Double Jeopardy exception in Gamble v. US

After delaying a day for honoring a deceased former Prez, on Thursday morning, the Supreme Court will hear oral argument in Gamble v. United States to “separate sovereigns” doctrine providing that different sovereigns can prosecute for the same conduct without violating the Constitution's double jeopardy prohibition. Here are links to some folks discussing this case:

The Atlantic: "There’s an Exception to the Double-Jeopardy Rule: The Supreme Court will hear a challenge to the “separate sovereigns” doctrine in Gamble v. United States."

The Economist: "The Supreme Court considers nixing a “double jeopardy” loophole"

SCOTUSblog: "Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception"

The Volokh Conspiracy: "Dual Sovereign Doctrine Under Attack in the Supreme Court: Strong originalist arguments exist for overruling the dual sovereign doctrine in a case being argued before the Supreme Court today."

December 5, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Timely reminder that now would be the perfect time for Prez Trump to make good on his clemency talk

The Washington Examiner has this notable recent article headlined "The criminal justice reform Trump can achieve without Congress." Here are excerpts:

President Trump unveiled one of his top legislative priorities before Democrats take over the House of Representatives: passage of the First Step Act, which would reduce some prison sentences. Though he still must win a tug-of-war within the Republican Party to get that bill through, he has a Plan B — and he doesn't need Congress for it.

That would be the creation of a White House clemency commission to supplement or replace the Justice Department’s opaque Office of the Pardon Attorney, which critics say is inherently biased in favor of prosecutors.

A new clemency commission can be created without Congress. The idea has support from both left-wing and conservative advocates, who note Trump’s repeated musing about the unfairness of the criminal justice system, including a remark in October that “a lot of people” are in prison for “no reason” and that he was “actively looking” to address that.

Trump has nearly unchecked power to pardon or release federal inmates — an authority he’s already used in unconventional ways, breaking with stingy recent predecessors to give nine early-term pardons or commutations, including the first pardons to currently incarcerated inmates since the 1800s.

“The reason you haven’t seen anything done yet is that there are only 24 hours in the day, and this requires some thought,” said Heritage Foundation scholar Paul Larkin, who advocates a clemency review process headed by the vice president.

Larkin attended a September meeting at the White House hosted by Jared Kushner and Ivanka Trump. Kim Kardashian West joined a dozen reformers around a Roosevelt Room table, where guests discussed commission ideas.

U.S. Sentencing Commission member and New York University law professor Rachel Barkow, who also attended the White House meeting, offered a similar assessment. “My guess is institutional resources might be focused on the First Step Act, so clemency reform could be on hold,” she said....

Mark Osler, a University of St. Thomas law professor also involved in talks about a commission, doesn't expect the clemency board to be used as a Plan B but rather as a second step: “I suspect it will get more attention once the First Step Act is dealt with,” though he declined to say if he’s been in touch with the White House. “It’s important to reform the clemency process, and I think the project will come to the front of the agenda when President Trump wants to or does grant more clemencies. The September meeting was a great start,” he said....

The pending First Start Act would, among other reforms, expand good-time credit, allow judges greater sentencing flexibility, and retroactively shorten some crack cocaine sentences. But it wouldn’t reduce many already imposed terms.... Amid uncertainty over the bill’s fate, some advocates have recommended greater unilateral action to a potentially jilted Trump.

“Now is the perfect opportunity for President Trump to show Senate Majority Leader Mitch McConnell who's the boss," CAN-DO Foundation founder Amy Povah said recently. "He can commute the sentences of hundreds, if not thousands of prisoners who would qualify for an immediate release if First Step passes with one stroke of the pen."

A few of many recent related posts: 

December 5, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 04, 2018

"What the Feds Can Do to Rein in Local Mercenary Criminal Justice"

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

Although physical and psychological harms caused by local police are the most common bases for federal intervention and reform efforts, this Article focuses on the financial harms local police can cause.  As the U.S. Department of Justice’s Ferguson Report and numerous other studies highlight, local police departments are front-line players in a broader governmental strategy to generate revenue from individuals ensnared in the criminal justice system.  The strategy is problematic for a variety of reasons, including the skewing effect it has on enforcement priorities and the major negative personal impact it has on those targeted (very often, people of color and economically disadvantaged individuals).  Aggravating matters, the mercenary practices of local criminal justice system actors are complemented by private business entities that secure significant profits from the business local governments send their way.  This Article surveys the adverse consequences of local mercenary criminal justice for governance, residents and their communities; the many, quite distinct obstacles that federal reform efforts face; and the several possible avenues for reform and their likelihood of success.

December 4, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, December 03, 2018

"21 Principles for the 21st Century Prosecutor"

The title of this post is the title of this notable new report from the folks at Fair and Just Prosecution, Brennan Center for Justice, Emily Bazelon, and The Justice Collaborative.  Here is its introduction:

Prosecutors are charged with addressing violations of criminal law and promoting public safety. In carrying out these responsibilities, they must also bear in mind their role as ministers of justice and consider the rights, needs, and interests of all members of their community — including victims and individuals who are charged with criminal conduct.

Prosecutors wield enormous influence at every stage of the criminal process, from initial charging decisions to the sentences sought and imposed Along the way, they often control decisions about plea bargains and whether mandatory minimum sentences will be triggered, and thus greatly impact whether (and for how long) defendants remain in jail and prison.

Over the last four decades, the total incarcerated population in the United States has quintupled, to 2.2 million, or nearly 1 out of 100 adults. About 10.6 million people cycle in and out of jail each year.  While the causes are complex, it’s clear that punitive policies have contributed to the incarceration build-up.  These policies have included the war on drugs, over-policing of poor and minority communities, and harsh directives from legislators, like mandatory-minimum sentencing laws.  Putting so many people behind bars imposes great costs and burdens on them, their families, and our country.

In recent years, the role of prosecutors has received increasing attention.  Given their powers, prosecutors are well positioned to make changes that can roll back over-incarceration.  They can use their discretion to improve the overall fairness and efficacy of the criminal justice system and champion priorities that improve the safety and well-being of our communities.

Fairness is paramount It helps achieve the mission of public safety by building trust, which in turn aids police and prosecutors in solving crime The 21 principles below offer practical steps prosecutors can take to transform their offices, and collectively, their profession.

The principles include examples of innovative endeavors by prosecutors around the nation, not necessarily as endorsements, but as illustrations of new approaches.  We recognize that prosecution is local, and some of these recommendations and examples won’t be suited to all jurisdictions.  We nonetheless hope that these ideas generate conversation, creative thinking, and change.

The central aspiration of these principles is at once simple and profound: that prosecutors will adopt a new and bold 21st Century vision for meting out mercy and justice.

December 3, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act

A new week bring a new round of stories about the status of the debate over the FIRST STEP Act.  For example, this morning's Politico piece, headlined "Trump lays off McConnell as criminal justice reform stalls: Advocates fear the president isn’t fully invested in the fight for the bill," is focused on whether Prez Trump should be trying to do more to get the legislation through Congress.  Given that Prez Trump does not work in Congress, I would rather these days to see stories about whether he will ever make good on all his prior clemency talk, but that it a topic for a coming post.

Of course, I understand why Politico and others are inclined to focus on Prez Trump 's role in this process, but I have long been wondering why nobody is talking about whether Senate Judiciary Chair Charles Grassley would be willing to stall/block any and all votes on judicial nominees — not only now in lame duck, but also in the next Congress — until a Senate floor vote is scheduled on criminal justice reform bills.  As this AP story notes, outgoing GOP Senator Jeff Flake is using his judiciary power to block votes on judges to seek a floor vote on a bill to provide protections for the special counsel.  As a Beltway outsider, I do not see why Senator Grassley — or other big GOP reform supporters on the Judiciary Committee like Mike Lee — are not at least talking up a similar move to try to get Senator McConnell to schedule a vote on the FIRST STEP Act.

Meanwhile, this CNN article discussing the discussion of the FIRST STEP Act among GOP Senators provides this glimpse into the faulty and foul thinking that creates challenges for any and all criminal justice reform efforts:

Sens. John Cornyn of Texas and Dick Durbin of Illinois, the number-two ranking Republican and Democrat respectively, discussed in the Senate gym Thursday morning potential compromises that could get wary Republicans on board. "This is a once in a political lifetime opportunity," Durbin said.

In a separate interview, Cornyn said that addressing some of the concerns of one law enforcement group — the National Sheriffs' Association — would "guarantee" the support of some Republicans. Cornyn, the GOP Whip, said his job was to give McConnell "an accurate count of where the votes are," rather than arm-twisting members into voting for it.  He also noted that "our time is limited" in getting it done.

Many Democrats are in favor of the bill — Durbin, the Democratic whip, said his party's "support for this measure is solid." If the Senate can pass it, the House is expected to easily do so too.

This has left the fight to Republican members of the Senate.  Sen. Rand Paul, a Republican from Kentucky, told CNN that there's a generational divide within the party on the issue....  "We had one of the senators in the lunch saying, 'You know how you get no recidivism?  Don't ever let him out of jail.  Zero recidivism!'" added Paul, referring to a closed-door meeting GOP senators held this week.

This contention of "Zero recidivism!" is most obviously faulty because it fails to acknowledge that prisoners can and do commit crimes while in prison, with the most common victims being prison guards and other prisons.  This contention is most obviously foul because it entirely disregards the humanity and social meaning of those persons who become federal prisoners (not to mention all their friends and families).  Fundamental ignorance about prisons and prisoners, along with a easy willingness to dehumanize and disregard the interests of those in our criminal justice system and those who care about those in our criminal justice system, help account for why it can be so very easy for all to many leaders to talk this way when seeking to thwart thoughtful and balanced criminal justice reform efforts.

Of course, though nobody is really serious about making all federal crimes subject to mandatory LWOP terms in the name of recidivism reduction, there is also a telling revelation in this faulty and foul comment imagining permanent imprisonment for everyone.  Opponents of the FIRST STEP Act are fundamentally making the claim that we should fear a bill intended and well-designed to seek to reduce recidivism rates among federal prisoners because the recidivism rates among federal prisoners are currently too high.  

Some of the most recent of many prior related posts:

December 3, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sunday, December 02, 2018

En banc Fifth Circuit overrules multiple precedents to clean up (and expand) its "crime of violence" jurisprudence

A helpful reader made sure I did not miss a remarkable en banc opinion handed down by the Fifth Circuit on Friday in US v. Reyes-Contreras, No. 16-41218 (5th Cir. Nov. 30, 2018) (available here).  Regular readers may recall that I suggested in this post that it might feel like dropping through Dante's various levels of hell when seeking to sort through intricate precedents to figure out what is and what is not a "violent felony" or a "crime of violence" for federal sentencing purposes.  There is a hellish-landscape quality to the 30+ pages of Reyes-Contreras, but the start and close of the opinion hints at how the en banc Fifth Circuit is doing its level best to escape (with footnotes omitted):

Fredis Reyes-Contreras pleaded guilty of illegal reentry.  Because he had been convicted of voluntary manslaughter in Missouri, the district court applied a sentencing enhancement for a crime of violence (“COV”).  Well represented by the Federal Public Defender, Reyes-Contreras appealed to challenge the enhancement.  Burdened by binding caselaw that required us to declare that killing a person with a baseball bat is not a COV, the panel vacated for resentencing.  The court granted the government’s petition for rehearing en banc, thus vacating the panel opinion.  Finding it necessary to overrule several of our precedents, we now affirm the judgment of conviction and sentence....

It is high time for this court to take a mulligan on COVs.  The well-intentioned experiment that launched fifteen years ago has crashed and burned.  By requiring sentencing courts and this court to ignore the specifics of prior convictions well beyond what the categorical approach and Supreme Court precedent instruct, our jurisprudence has proven unworkable and unwise.  By employing the term “crime of violence,” Congress and the U.S. Sentencing Commission obviously meant to implement a policy of penalizing felons for past crimes that are, by any reasonable reckoning, “violent,” hence the term.

As with many legal standards, decisions are difficult at the margins.  But this case is nowhere near the margin.  Except as otherwise directed by the Supreme Court, sentencing should not turn on “reality-defying distinctions.” United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017), cert. denied, 139 S.Ct. 63 (2018).  The interests of justice and Congress’s commands are not served by the absurd conclusion that intentionally killing with a baseball bat, and intentionally ramming a vehicle into a car containing a child, are not COVs.  A more realistic approach comports with reason and common sense. 

In sum, we hold that MISSOURI REVISED STATUTES § 565.023.1 is divisible. Using the modified categorical approach, Reyes-Contreras was convicted under Subdivision (1), which is generic manslaughter, a COV.  In the alternative, even if Section 565.023.1 were not divisible, we hold that the statute as a whole is a COV because Subdivision (2) satisfies the use-of-force requirement and thus is independently a COV.

In finding “use of force” for purposes of identifying COVs, the distinction between direct and indirect force is abolished.  Likewise for the now-repudiated distinction between causing injury and using direct force. We show that the Missouri assisted-suicide statute satisfies the use-of-force requirement.  And we hold that, even if it did not, there is not the realistic probability of enforcement.

The holdings just announced, true to Supreme Court precedent, are in conflict with numerous panel and en banc decisions of this court. We therefore overrule, in whole or in part, as explained herein, the following [18] decisions and their progeny....  Reyes-Contreras’s conviction of voluntary manslaughter under MISSOURI REVISED STATUTES § 565.023.1 is a crime of violence that calls for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).  The judgment of conviction and sentence is AFFIRMED.

December 2, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, November 30, 2018

Outgoing California Gov Jerry Brown urged by notable group to commute 742 death sentences

As reported in this Reuters article, a "Catholic group close to Pope Francis and representatives of 25 countries on Wednesday appealed to outgoing California Governor Jerry Brown to commute all the state’s 742 death sentences before laving office." Here is more:

The Sant’ Egidio peace group made the appeal together with the justice ministers of South Africa, Benin, Zimbabwe and Malaysia, and 21 lower-ranking officials from other countries at a conference on the death penalty held in Italy’s parliament. Mario Marazziti, a Sant’ Egidio leader, asked Brown to “declare a moratorium on all executions and begin the process of commuting the sentences into jail terms before leaving office”.

Brown, who once trained to be a priest of the Jesuit order, will leave office after completing his current two terms on Jan. 7, when Governor-elect Gavin Newsom is sworn in.

There are currently 742 people condemned to die in California, where the last execution took place in 2006. Executions since then have been blocked by legal issues.

Sant’ Egidio, which has branches in many countries and hundreds of thousands of followers around the world, is in the forefront of efforts to abolish the death penalty and help migrants. It has found great favor with the pope. Last August, the Roman Catholic Church formally changed its teaching to declare the death penalty inadmissible, whatever the circumstance....

An editorial in the Los Angeles Times last week urged Brown to commute at least the death sentences of those who committed crimes when they were young. The newspaper also urged Newsom to place a new anti-death penalty initiative on a future ballot.

Propositions to end capital punishment were defeated in 2012 [and] 2016 in California.

November 30, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 29, 2018

Latest chapter of FIRST STEP Act massaging and messaging

Just about day now seems to bring a new development in the saga surrounding a possible Senate vote on some possible version of the FIRST STEP Act.  This new Politico article, headlined "Criminal justice reform bill still alive as McConnell deliberates," reports on the very latest of these developments, and here are excerpts:

Chuck Grassley and other advocates of criminal justice reform are desperately trying to sway Mitch McConnell to stay longer in December to finish their bill. And McConnell isn't ruling it out.

The Senate Judiciary chairman said he's still waiting on an official word from the majority leader on whether he will provide floor time to take up a measure that has drawn heated opposition from some Senate Republicans despite earning President Donald Trump's endorsement....

McConnell said the Senate GOP is still deliberating on whether to move forward, though he left the door open in a brief Thursday interview. “We’re trying to figure out how to proceed on it. We’re still trying to figure that out," the Kentucky Republican said....

Meanwhile, even as a bipartisan group of senators is still working on coming up with a new agreement to win more co-sponsors and the support of the National Sheriffs' Association, a Justice Department draft began circulating on Thursday that rewrites a number of key provisions.

The draft, obtained by POLITICO, would still allow many federal inmates to earn time credits and obtain supervised release but would bar people convicted of violent crimes and major drug trafficking crimes. It would also increase penalties for attacking police officers and fentanyl dealers, a key concern of law enforcement groups and senators from states wracked by the opioid crisis.

But the White House pushed back quickly against the draft, reiterating Trump's call for the criminal justice bill to get a vote this year. "The president has endorsed the Senate compromise on the First Step Act, and the White House is not circulating any other version,” White House deputy press secretary Hogan Gidley said. “All reporting to the contrary is false. The White House is committed to passing this legislation in the lame duck."

One person working in favor of criminal justice reform also slammed the draft as reflecting the efforts of a "rogue DOJ official who always hated the bill." Democrats and Republicans have been working to overcome objections from Republican senators, but "this is not what is being considered," the person said....

Senate Minority Whip Dick Durbin (D-Ill.) said supporters are considering excluding people from sentencing reforms that committed arson, certain drug crimes, and "taking care of the sheriffs' concerns" about sex crimes.

November 29, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (8)

New data show major change in felony filings after Oklahoma initiative defelonized various offenses

This new posting, titled "In its first year, SQ 780 reversed 10 years of growth in felony filings," reports on interesting new data out of Oklahoma concerning the impact of the passage of a criminal justice ballot initiative back in 2016. Here are details:

New data shows that State Question 780 reduced felony filings by over 14,000 across Oklahoma’s District Courts in its first year in a major realignment of how the state deals with low-level offenses.  SQ 780, approved by voters by a wide margin in 2016, reclassified simple drug possession and many minor property crimes as misdemeanors rather than felonies.  Assessing the First Year of SQ 780, a new report from Open Justice Oklahoma, uses original data from aggregated District Court criminal filings in the last ten years to evaluate the impact of the justice reform ballot measure in FY 2018.  Open Justice Oklahoma, a project of the Oklahoma Policy Institute, seeks to improve understanding of our justice system through analysis of public data. The data reveal several trends:

  1. SQ 780 reversed a long trend of increasing felony and decreasing misdemeanor filings across the state.Total felony filings fell by 14,141, or 28.4 percent, in FY 2018, while total misdemeanors rose by 6,437, or 13.6 percent.

  2. Cases involving reclassified charges shifted sharply from felony to misdemeanor in FY 2018. The number of felony cases filed involving simple drug possession fell by 14,164, or 74.9 percent, and felony cases involving property crimes fell by 8,095, or 29 percent, from FY 2017 to FY 2018. Misdemeanor cases involving drug possession rose by over 160 percent, while those involving property crimes rose by over 10 percent.

  3. Filing of other cases showed little change statewide in FY 2018, but felony cases filed with possession with intent to distribute (PWID) charges rose slightly. The number of felony cases involving PWID rose by 431, or 13.6 percent, but the number filed in FY 2018 (3,604) was only slightly more than were filed in FY 2016 (3,515). The number of felony cases involving drug trafficking changed by less than one percent.

  4. The effects of SQ 780 varied across counties and District Attorney districts. Nearly all counties saw declines in felony filings; in some rural counties, like Cotton and Harper Counties, felonies dropped by more than 50 percent. Some counties saw increases in PWID cases of 200 percent or more in FY 2018 compared to the average of the previous three years, including Haskell and Dewey Counties; the patterns in these mostly rural counties suggest there could be a shift toward harsher filing practices.

November 29, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress

As reported in this AP piece, "Michael Cohen, President Donald Trump's former lawyer, made a surprise appearance before a federal judge in New York on Thursday to plead guilty to lying to Congress about work he did on an aborted project to build a Trump Tower in Russia." Here is more:

Flanked by his lawyers, Cohen admitted making false statements in 2017 to the U.S. Senate Select Committee on Intelligence about the project. Cohen told the judge he lied about the timing of the negotiations and other details to be consistent with Trump's "political message."

Cohen and prosecutors referred to Trump as "individual one" throughout Thursday's proceedings and said he lied "to be loyal to Individual One." Among other lies, Cohen said he told Congress that all discussions of the Moscow Trump Tower project ended by January 2016, when they had actually continued until June of that year....

In August, Cohen pleaded guilty to other federal charges involving his taxi businesses, bank fraud and his campaign work for Trump. Reacting to the plea to the new charges, House Speaker Paul Ryan said Cohen "should be prosecuted to the extent of the law. That's why we put people under oath."

Cohen gave a statement to congressional committees last year saying the president's company pursued a project in Moscow during the Republican primary but that the plan was abandoned "for a variety of business reasons." Cohen also said he sent an email to the spokesman for Russian President Vladimir Putin as part of the potential deal. In his statement, he said that he worked on the real estate proposal with Felix Sater, a Russia-born associate who he said claimed to have deep connections in Moscow.

The discussions about the potential development began after Trump had declared his candidacy. Cohen had said the talks ended when he determined that the project was not feasible. Cohen had also disclosed that Trump was personally aware of the deal, signing a letter of intent and discussing it with Cohen on two other occasions.

As readers may recall and as detailed in this post, Cohen other plea deal from this past summer included an agreement not to challenge any sentence imposed in the range of 46 to 63 months of imprisonment. The folks at Lawfare now have collected here the criminal information, and plea agreement in the latest version of US v. Michael Cohen.  The nine-page plea agreement has lots of sentencing talk but none of that talk is that interesting because the guideline range for this offense seems clearly to be just zero to six months of imprisonment.  Consequently, from a sentencing perspective, it seems that this otherwise notable development is unlikely to significantly change Cohen's sentencing exposure.  And his ultimate sentence is likely to turn on how he cooperates with the Special Counsel team and how that team portrays his cooperation at sentencing.

Prior related posts:

November 29, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

"The Death Penalty & The Fundamental Right to Life"

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

For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment.  But the Court has never addressed—let alone decided—whether the death penalty per se deprives the fundamental right to life in violation of substantive due process.  The legal literature has followed suit, scarcely addressing the issue.

This Article makes the case for why the death penalty violates the fundamental right to life.  It first argues that the condemned have a fundamental right to life based on a history and tradition of diminished support for the death penalty nationally and worldwide, the dignity of the condemned, and the negative right not to be killed by one’s government.  It next argues that the death penalty deprives this right in violation of substantive due process because the State cannot prove that the death penalty is narrowly tailored to achieve deterrence or retribution: arbitrariness, delay, and unreliability deprive the death penalty of a compelling purpose, and execution belies narrow tailoring.  Lastly, this Article argues that the right-to-life challenge is not inconsistent with the Fifth Amendment’s text or the elephant in the room: abortion rights.

Although the Eighth Amendment has paved the road toward judicial abolition of the death penalty, there remains no end in sight, no welcome sign on the horizon.  The road less traveled is substantive due process: the right to life of the condemned.  On the long road toward abolition, this Article argues that two lanes are better than one.

November 29, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 28, 2018

SCOTUS argument in Timbs suggest agreement on incorporation of Excessive Fines Clause and perhaps little else

In this post yesterday previewing today's SCOTUS oral argument in Timbs v. Indiana, I confidently predicted that the Justices will decide that the Excessive Fines Clause applies to the states, and further suggested that the Court may be too divided to say much more about the application of the EFC.   My prediction was not especially bold, but reports on the argument suggest that it is on the right track.

From SCOTUSblog: Argument analysis: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states:

Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does....

There seemed to be significantly less agreement among the justices on the scope of the right – that is, whether fines like the forfeiture of Timbs’ car do indeed violate the excessive fines clause. Chief Justice John Roberts was unsympathetic, telling attorney Wesley Hottot, who represented Timbs, that Timbs’ Land Rover “was an instrumentality of the crime. This is how he got to the deal place and how he carried the drugs.” If a defendant was carrying the drugs in his car, Roberts stressed, “I think it’s pretty well-established” that the car can be forfeited....

Given the near consensus on the Supreme Court that the excessive fines clause applies to the states, the justices are likely to say so, but without much more. That could still be good news for Timbs, because two lower courts agreed with him that the forfeiture of the Land Rover was excessive; the Indiana Supreme Court ruled only that the excessive fines clause does not apply to the states at all.

From The Volokh Conspiracy: Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures:

Today's oral argument makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states.  The justices also seem likely to rule that at least some state asset forfeitures violate the Clause.  Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation.  It is hard to say, however, what — if anything — the Court will do on the question of how to define "excessive."  The justices could well decide to leave it to the lower courts, at least for the time being.

The full transcript of oral argument in Timbs v. Indiana is available at this link.

Prior (somewhat) related posts:

November 28, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Lessons for Sentencing Reform and Reentry: A Case Study of Project New Opportunity"

The title of this post is the title of this new Center for Community Alternatives' Justice Strategies report. Here is its executive summary:

This study looks at the development and implementation of Project New Opportunity (PNO).  PNO was created to provide reentry support to people being released from federal prison under President Obama’s Clemency Initiative and the United States Sentencing Commission’s (USSC) 2014 reduction in drug sentencing guidelines.

Through the retroactive application of the guideline reforms, about 6,000 individuals were eligible to be released on November 1, 2016.  Another 1,928 were released though the Clemency Initiative. Yet except for probation supervision and Bureau of Prison (BOP) halfway houses, there were no reentry supports available to these individuals, many of whom had served decades in prison.

The Center for Community Alternatives (CCA) worked with Project Director Malcolm Young to design the PNO project to provide a model of reentry support for people released under these criminal justice reform efforts.  PNO is based on research both about the challenges that accompany the transition from prison to community and the role that formerly incarcerated people can play in helping newly released people make this transition.  Imprisonment leaves scars including post-traumatic stress responses, a lack of familiarity with the routines of daily life, and forms of culture shock as one confronts technological and other changes that have occurred during one’s time in prison.  These adjustment issues contribute to recidivism, which is highest within the first 6 months of release.

The key elements of PNO’s model are: 1) a staffing plan that relies on formerly incarcerated people as Reentry Consultants, and 2) an “inside/outside” connection that introduces incarcerated people to their Reentry Consultant six months prior to their release and continues after release.  The majority of PNO participants cited this pre-release connection with someone who will be there when they get out as the primary benefit of the program.

PNO adds yet another example to the growing body of evidence that shows that sentencing reform, shorter sentences and early release mechanisms are reasonable and humane without jeopardizing public safely.  While PNO was unable to track recidivism of its participants through official data, it was able to follow up through the Reentry Consultants and/or participants themselves.  The information, while informal, is very encouraging: there were no known incidents or reports of rearrests, violations of the terms of probation supervision, or incarceration from the consultants or participants.  This suggests that PNO was able to help people stabilize and avoid new encounters with the criminal justice system in the immediate aftermath of release.

November 28, 2018 in Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50"

Politico has this lengthy report, headlined "White House makes last-ditch push on criminal justice reform bill," on the state of debate among Senate Republicans concerning the FIRST STEP Act.  Here are details:

The Trump administration and a bloc of Republican senators are making a last-ditch attempt to pass a criminal justice reform bill in the lame duck session.

In a closed-door party lunch on Tuesday, Vice President Mike Pence made a strong endorsement of the bill to Senate Republicans, senators said, emphasizing that the GOP could take a clear win in the lame duck with passage.  And supporters said they picked up votes during the discussion; one supportive GOP senator said they’ve accrued more than 20 hard “yes” votes and that another dozen or so GOP senators are gettable, which would likely be enough to easily pass the bill — if leadership will bring it up.

Senate Majority Leader Mitch McConnell (R-Ky.) maintained his poker face at the meeting, other than to reiterate the Senate’s short calendar.  Asked to assess the prospect that McConnell will put the sentencing and prison reform bill on the floor, one attendee said: “Less than 50/50.”...

“A lot of people like me are still trying to understand what it does,” said Sen. Bob Corker (R-Tenn.), who characterized Tuesday’s critical meeting as a “higher level discussion of whether we should attempt to do it.”

As they assess the bill‘s prospects, GOP leaders are also asking senators whether they'd prefer to deal with the bill next year after Democrats take over the House, according to two sources familiar with the matter.  That would dismantle a fragile bipartisan agreement and require Republicans and Democrats alike to essentially start over.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) is still trying to garner more support for the bill, which would lower mandatory minimum sentences for some drug-related felonies, expand a program for early release, promote training programs in prison and require inmates be placed in prisons closer to their homes. He and other advocates say they are open to changing the bill’s treatment of some criminals in order to win new supporters.

“We’re still working on getting additional yeses or additional cosponsors,” Grassley said, noting that the only way to overcome opposition from Sen. Tom Cotton (R-Ark.) and others was to increase co-sponsorship. He added that “we’re talking about no announcement before a couple days.”

McConnell is loath to take up the bill on the floor to prevent a circular firing squad among Republicans. But that’s already happening both in public and private: After trading blows on Twitter in recent days, Sen. Mike Lee (R-Utah) and Cotton each gave opposing speeches about the bill in the lunch.

But supporters said they have the momentum and estimated only a half-dozen Republicans will be difficult to convince: Cotton, Sen. John Kennedy (R-La.), Ben Sasse (R-Neb.), Jim Risch (R-Idaho) and Deb Fischer (R-Neb.).  “Over half of the Republicans are for it, and maybe 80 percent, 90 percent, maybe all of the Democrats support it,” Sen. Rand Paul (R-Ky) said. “Things are all moving in the right direction.”

Still, Sen. Marco Rubio said that he is skeptical of the bill, particularly when it comes to classification of crimes and said he is “not sure there is anything” that could win him over. And a small bloc of Republicans, led by Cotton and Kennedy, are vocally going after the bill.  Kennedy called it “ass backwards” in an interview and said he had “serious philosophical problems with the criminal justice bill.” It “takes all our authority and gives it to a bunch of bureaucrats,” he said.

The Senate also needs to pass a spending bill by Dec. 7 to avoid a partial government shutdown, and lawmakers are trying to wrap up negotiations around the Farm Bill. The criminal justice bill is regarded as a “maybe” that could potentially wait until next year. A version of the bill has already passed the House.

Senate Majority Whip John Cornyn (R-Texas) said that the bill “is still being evaluated and people are still trying to figure out where they stand.” He said McConnell has made no final decision....

But no matter what, there will be detractors.  Cotton told reporters Tuesday that while the House’s version of the bill was “fixable,” the Senate’s draft of the legislation has “gone consistently to the left.” 

If only a handful of Republicans supported this bill, I could understand why (but would still be frustrated) the Senate Majority Leader would not want to bring forward a bill favored more by his opposing party than by his own party.  But this Politico report reinforces my sense that a majority of GOP Senators would vote for the FIRST STEP Act and that a super-majority of all Senators (representing a super-super majority of the nation's population) want this legislation enacted.  That a few Senators from a few states can, in essence, exercise a heckler's veto highlights why thoughtful federal criminal justice reform has been so very hard.  Sigh.

Some of many prior related posts:

November 28, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Prisons and prisoners, Who Sentences | Permalink | Comments (6)

Tuesday, November 27, 2018

Previewing SCOTUS consideration of civil forfeiture in Timbs v. Indiana from many sources

On Wednesday morning, the Supreme Court will hear oral argument in Timbs v. Indiana to consider whether the Eighth Amendment's prohibition of excessive fines applies to the states.  I am reasonably confident that the Justices will decide that the Excessive Fines Clause does apply to the states, but I am not so confident about what more the Court will say about the application of the EFC to the interesting (and fairly simple) facts surrounding the forefeiture of Tyson Timbs' Land Rover. 

Because there is a whole lot worth saying about the facts and law surrounding Timbs, I figured I would link to a whole bunch of folks from a whole bunch of sources discussing this case.  So:

Prior (somewhat) related posts:

November 27, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Meek Mill continues to shine a light on the need for criminal justice reform

As noted in this post, after being released from prison earlier this year, rapper Meek Mill pledged to use his spotlight to "shine a light" on how America's criminal justice systems treat people of color.  He has made good on that pledge in various ways, including through this recently published New York Times opinion piece with this extended headline: "Meek Mill: Prisoners Need a New Set of Rights; Like many who are now incarcerated, I was the victim of a miscarriage of justice.  I got lucky, but because of dysfunctional, discriminatory rules, most don’t."  Here is an excerpts from this commentary:

Like many who are currently incarcerated, I was the victim of a miscarriage of justice — carried out by an untruthful officer, as determined by the Philadelphia District Attorney’s office, and an unfair judge.

My crime? Popping a wheelie on a motorcycle in Manhattan. Even though the charge was dismissed in a New York City court, a Philadelphia-based judge still deemed my interaction with the police to be a technical violation of my probation — stemming from a 2007 arrest — and sentenced me to two to four years in prison despite the fact that I didn’t commit a crime. The judge also refused my motion for bail, calling me a “danger to the community” and a “flight risk.”

The ordeal cost me my most precious commodity: my freedom. I served five months. With the help of friends and the intervention of the Pennsylvania Supreme Court, I was released on bail this past April and was able to resume my life.

But I know I’m the exception to the rule — a lucky one. It’s clearer than ever that a disproportionate number of men and women of color are treated unfairly by a broken criminal justice system. The system causes a vicious cycle, feeding upon itself — sons and daughters grow up with their parents in and out of prison, and then become far more likely to become tied up in the arrest-jail-probation cycle. This is bad for families and our society as a whole....

We all need to hold our lawmakers accountable for supporting unfair or inhumane policies and all practices that perpetuate injustice, especially for the blacks and Latinos who fall prey to them most frequently. The reality is African-Americans and Latinos who come from poverty-stricken neighborhoods are assigned public defenders too overburdened to do anything in most cases other than negotiate the most favorable plea deal, regardless of guilt or innocence.

Soon, some friends and I will be announcing a foundation dedicated to achieving real change. In the meantime, if you’re interested in joining us and lending your support to solving what is the moral crisis of our time, please visit www.reformnow.com and sign up.

Together, we will demand stronger prison rehabilitation programs, updated probation policies — including shortened probationary periods — an improved bail system and balanced sentencing structures.

It’s a shame that model probationers can be immediately put back behind bars simply for missing curfew, testing positive for marijuana, failing to pay fines on time or, in some cases, not following protocol when changing addresses. Our lawmakers can and should do away with these “technical violations.”

And more broadly, if they’re serious about reducing mass incarceration and unnecessary government surveillance, they should introduce legislation that allows people on probation to earn a reduction in probation time for good behavior so that entire swaths of people aren’t spending the majority of their adult lives on probation as I did.

Prior related posts:

November 27, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote

The Washington Post is reporting in this new article, headlined "Senate Republicans mull changes to controversial criminal justice bill," that there is talk of further gutting the few sentencing reform provisions in the latest version of the FIRST STEP Act and creating still further prison reform carve outs.  Here are the details:

Senate Republicans are actively discussing changes to a controversial overhaul of the criminal justice system in a bid to win more GOP support that could nonetheless shatter a delicate bipartisan compromise on one of President Trump’s top legislative priorities left for this year.

The changes being mulled, confirmed by senators and others familiar with the talks, reflect in part proposals put forward by the National Sheriffs’ Association, which is opposed to the legislation as written.  Though a slew of law enforcement groups already support the bill, getting more of them on board is almost certain to improve its prospects among Republicans.

One change that has been discussed privately is tightening the “safety valve” provision, which provides more discretion to judges when they issue sentences.  Though the most recent public draft of the bill would allow judges to take advantage of those “safety valves” in more types of cases, Sen. David Perdue (R-Ga.) said senators are talking about reducing the types of convictions that would qualify for the “safety valve” provision.  Perdue also said senators are considering narrowing the kinds of fentanyl-related crimes that would be eligible under the legislation, which broadly is meant to loosen some mandatory minimum sentences and help rehabilitate prisoners.

“I’m probably going to be supportive of it,” said Perdue, who was a vocal opponent of a more expansive version of the legislation two years ago. “It does some things that we’ve been talking about that Georgia and North Carolina and Texas have done, with good results.”

A provision that gets rid of the “stacking” regulation — which is used to add more penalties against those who commit a drug-related crime while possessing a gun, even if the firearm wasn’t used — is also ripe for potential changes to win over Senate Republicans.

The changes under negotiation reflect the messy, closed-door horse-trading that will only grow as Senate leaders begin gauging support for the bill this week, even if attempts to change the legislation are ultimately unsuccessful.  Senate Democrats, who believe they have already made significant concessions, aren’t eager for more changes that would push the bill further to the right, considering it already has Trump’s endorsement and appears it could easily pass the House.

“I’m aware of the discussions, but we have a strong commitment on both sides of the aisle, including the White House, that the bill is what it is,” Sen. Cory Booker (N.J.), one of the main Democratic authors of the bill, said Monday evening of the changes being discussed. “I believe we should all be standing pat and firm.”

The bill’s supporters — both Republicans and Democrats — are also rushing against the clock, scrambling to get the measure signed into law this year before Democrats gain control of the House.  The new majority, particularly the generation of lawmakers partly elected on a message of racial justice, could be more emboldened to push for more sweeping changes than the limited overhaul, upsetting the compromise.

Another change that has been floated privately is including additional categories of sex offenders in the group of inmates who would be ineligible for early release, according to one Senate official....

While the discussions continue, the ranks of publicly opposed senators are growing. Sen. Marco Rubio (R-Fla.) has been privately speaking with Sen. Mike Lee (R-Utah) and Sen. Tim Scott (R-S.C.) — two of his closest allies — but stressed Monday that while he is on board with the overhaul to the prison systems and recidivism programs, he is concerned about the proposed changes to sentencing laws. “Now that we’re getting to the guts of it, I need to have a better understanding,” Rubio said. But “as of now, I can’t support it, given my understanding of it.”

Trump, meanwhile, has not wavered from his public commitment to the First Step Act and overhauling the criminal justice system — the subject of a Monday roundtable in Mississippi that was sandwiched between two campaign rallies. After endorsing the bill with much fanfare at a White House ceremony this month, Trump again pushed Senate Majority Leader Mitch McConnell (R-Ky.) for a floor vote in a private phone call last Tuesday, according to people briefed on the conversation.

“Well, we’re talking to him, and we’re doing a count,” Trump said Monday in Mississippi of his discussions with McConnell. “We want to make sure that we have the votes because we don’t want to bring it if we don’t have the votes, but another thing we’re looking at right now is that we have more than enough. So at a certain point, we’ll have a talk. But we have the votes, and I’m sure that we’ll be voting soon.”

Especially in light of this new reporting, it is worth watching how Prez Trump talked up the FIRST STEP Act again at this Mississippi roundtable event Monday night, and also worth noting how VP Mike Pence and Senator Lindsay Graham also talked up the bill.  Because of how much Prez Trump seems to be leaning into this legislation, I now think it would be a big loss for him if there isn't a vote on the bill (and Prez Trump himself said at the roundtable event the bill could get 80 votes in the Senate).  So, based on all of this buzz, I am now thinking a Senate vote is going to happen, but that Senator Cotton and perhaps a few other hardliners will find various ways to continue watering down the bill up until a vote finally goes forward.

As I have said repeatedly in this space, any positive reform is better than no reform.  So I am continuing to hope we see a bill become law in the weeks ahead.  But I also hope everyone supporting of real reforms takes to heart that this bill will be, as it name connotes, just a small first step in a very long path toward needed federal criminal justice reforms.

Some of many prior related posts:

UPDATE: The White House has provided here the full transcript of "Remarks by President Trump at FIRST STEP Act Roundtable with Governor Bryant and Law Enforcement Leaders." They start substantively this way:

We’re here today to discuss a landmark prison reform bill called the FIRST STEP Act — so important.  This legislation will help former inmates reenter society as productive law-abiding citizens and it has tremendous support no matter where we go. Tremendous support.  Beyond anything I would’ve expected.

November 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Monday, November 26, 2018

Special counsel saying Paul Manafort is breaching his plea agreement by lying "on a variety of subject matters"

As reported in this ABC News piece, "Prosecutors with special counsel Robert Mueller’s legal team told a judge Monday night that President Donald Trump’s one-time campaign chairman Paul Manafort has breached his cooperation agreement and lied to investigators." Here is more about the latest trouble for Manafort, which became public via this filing:

“After signing the plea agreement, Manafort committed federal crimes by lying to the Federal Bureau of Investigation and the Special Counsel’s Office on a variety of subject matters, which constitute breaches of the agreement,” the filings says.

Manafort’s legal team has disputed that charge, telling a federal judge that the embattled former Trump adviser “believes he has provided truthful information and does not agree with the government’s characterization or that he has breached the agreement.”

The DC court filing brings to a head weeks of speculation that Manafort’ s cooperation with the special counsel could be breaking down. Earlier this month, there were mounting tensions between Mueller and Manafort over Manafort’ s apparent lack of cooperation with the investigation, multiple sources familiar with the matter told ABC News. 

Manafort had been fielding questions about a wide range of topics since September when he initially agreed to cooperate, the sources said. But special counsel prosecutors were “not getting what they want,” one source with knowledge of the discussions said.

As noted in this post from September, Manafort's plea deal seemed to cap his sentencing exposure at 10 years despite a calculated guideline sentencing range much higher. This latest filing does not ensure that the feds will now seek or secure a sentence higher than 10 years for Manafort, but it certainly suggests that the special counsel office will object strongly to Manafort's likely arguments for a much lower sentence.

Some prior related posts:

November 26, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward

Senator Tom Cotton continues to work with all his might to halt Congress from taking any reform steps via the FIRST STEP Act, and his latest efforts involve this new National Review commentary and what is reported here by Politico under the headline "Cotton wields sex offender report to tank prisons bill."  Here is how Senator Cotton himself gets started at NR:

It remains to be seen whether the lame-duck 115th Congress will debate a sweeping overhaul of our federal criminal-justice system before we adjourn for the year. You may have heard about the legislation at hand, the FIRST STEP Act. I oppose it. I urge my fellow conservatives to take the time to read and understand the bill before signing on in support of this flawed legislation.

The 103-page bill that was released the Friday before Thanksgiving has some good parts, and I don’t question the intentions of the bill’s proponents. But you may have noticed that they talk more about their intentions than about the consequences of the bill. As conservatives, we know that good intentions say little about actual consequences. And to paraphrase Thomas Sowell, intellectuals who generate ideas with good intentions rarely have to face the consequences of those ideas personally.

When proponents of the bill discuss the substance, they claim that “nothing in the FIRST STEP Act gives inmates early release.” Instead of early release, proponents say, it merely provides incentives for inmates to participate in programs. This is nothing but a euphemism. Let there be no doubt: If the bill is passed, thousands of federal offenders, including violent felons and sex offenders, will be released earlier than they would be under current law. Whatever word games the bill’s proponents use will make no difference to the future victims of these felons.

Here is what Politico is reporting:

GOP Sen. Tom Cotton is locked in an awkward fight with fellow Republicans over their push to change federal prison sentencing guidelines. And now he has a new attack line intended to make his rivals squirm: Warnings that sex offenders could get off easy.

A new Justice Department analysis — conducted at Cotton‘s request — found that the Senate’s bipartisan sentencing and prison reform bill could make people convicted of some sex crimes eligible for early release. And though President Donald Trump supports the bill, Cotton says the DOJ confirmation underpins his argument that convicts of certain sex-related crimes could accrue credits making them eligible for supervised release or “pre-release” to a halfway house.

While GOP leaders are beginning to assess the prospects of the bill on the Senate floor, the Arkansas Republican argues that the latest version of the bill has been rushed and contains significant flaws and is hoping to sway undecided Republicans to join him. Cotton and Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah) have been battling over the specifics of the bill since it was released in mid-November, exactly the type of intraparty firefight Senate Majority Leader Mitch McConnell (R-Ky.) has been hoping to avoid.

The argument over the bill's treatment of sex offenders took center stage on Monday, drawing the latest public shots between the warring Republican senators. “Now that the Department of Justice has confirmed that the Senate FIRST STEP Act offers early release to multiple categories of sex offenders in several provisions of the bill, Congress should fix these problems instead of ramming this bill through. There is no such thing as a ‘low-risk violent sex offender’ who deserves earlier release than under current law," Cotton said in an emailed statement.

A spokesman for Lee defended the legislation in response to the DOJ analysis on Monday and accused the bill’s opponents of “spreading fake news” about the bill. “Just because a federal offense is not on the specific list of ineligible offenses doesn’t mean inmates who committed non-specified offense will earn early release. All inmates must first pass a DOJ risk assessment before they can even begin earning good time credits. And then they must secure certification from their warden that they are not a threat to safety before they can be released,” said Conn Carroll, a Lee spokesman. Carroll added that Lee is open to revising the bill if it turns opponents into supporters: “If adding to the list of specifically forbidden offenses would get some senators to yes, we would love to help them do that on the Senate floor.”

Their colleagues are watching closely. Sen. Marco Rubio (R-Fla.) said that a Cotton op-ed panning the bill made a "compelling argument" and indicated his vote is in play. A number of Trump's allies, from Grassley to Sen. Rand Paul (R-Ky.) to Lindsey Graham (R-S.C.) are behind the bill, but in the Senate even a small band of opposed senators can make a floor debate stretch out for a week — all while lobbing attacks at fellow Republicans for being soft on crime.

"I'd like to get it through but we still have a few problems that we ought to work out," said Sen. Orrin Hatch (R-Utah). "I'm for doing it if we can. We have a shot at it but we're going to have a lot of cooperation."

Senior Senate Republicans said on Monday they could not predict what McConnell will do. The president has lobbied McConnell to bring up the bill, but the GOP leader has told Trump the Senate's schedule is crowded over the next month. McConnell has emphasized that funding the federal government by the Dec. 7 deadline and finishing a farm bill are his top priorities. And the House would probably have to vote on whatever the Senate passes on criminal justice reform, and ousted House Republicans may want to head home as soon as the funding bill is finished.

November 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

"Layers of Bias: A Unified Approach for Understanding Problems With Risk Assessment"

The title of this post is the title of this article recently published by the journal Criminal Justice and Behavior and authored by Laurel Eckhouse, Kristian Lum, Cynthia Conti-Cook and Julie Ciccolini.  Here is the article's abstract:

Scholars in several fields, including quantitative methodologists, legal scholars, and theoretically oriented criminologists, have launched robust debates about the fairness of quantitative risk assessment. As the Supreme Court considers addressing constitutional questions on the issue, we propose a framework for understanding the relationships among these debates: layers of bias.

In the top layer, we identify challenges to fairness within the risk-assessment models themselves.  We explain types of statistical fairness and the tradeoffs between them.  The second layer covers biases embedded in data.  Using data from a racially biased criminal justice system can lead to unmeasurable biases in both risk scores and outcome measures. The final layer engages conceptual problems with risk models: Is it fair to make criminal justice decisions about individuals based on groups?  We show that each layer depends on the layers below it: Without assurances about the foundational layers, the fairness of the top layers is irrelevant.

November 26, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, November 25, 2018

Student SCOTUS preview: starting a series of posts on United States v. Haymond

6a00d83451574769e201b7c9134b4d970b-320wiIn this post last year I noted the interesting constitutional procedure opinion handed down by the Tenth Circuit in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here), and in this post last month I noted that the  Supreme Court accepted the petition for certiorari filed by the federal government in the case.  I am very lucky to have a great student, Jim McGibbon, who is very interested in the Haymond case, and he has agreed to draft a series of preview posts on the case.  Here is this first one:

The Supreme Court, on October 26, 2018, granted certiorari in United States v. Haymond.  The case concerns the constitutionality of a federal statutory provision which imposes a mandatory minimum prison sentence for federally-convicted sex offenders who commit another sexually-related offense while serving a term of supervised release.

A federal district court, in 2010, convicted Haymond of possessing child pornography and sentenced him to thirty-eight months of prison and ten years of supervised release.  A sentencing judge is authorized to impose a supervised release sentence based on 18 U.S.C. § 3583(a), a provision of the Sentencing Reform Act of 1984.   Supervised release has long been considered, in the words of the Tenth Circuit, “part of the sentence” for the original crime as are the various terms and conditions that an offender must comply with during the period of supervised release.  Violation of the conditions of supervised release sometimes can result in revocation and additional prison time, but the Supreme Court in Johnson v. United States, 529 U.S. 694 (2000), described “postrevocation sanctions as part of the penalty for the initial offense.”  Id. at 700.

On April 24, 2013, Haymond was released from prison, and he began serving his 10-year term of supervised release.  Two years into his supervised release, Haymond’s probation officers conducted a surprise search of Haymond’s apartment.  The officers seized a password-protected cellphone and a personal computer belonging to Haymond, as well as other computers belonging to a roommate or in the apartment.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release on various grounds. 

Haymond was subject to a supervised release revocation hearing before a district judge, a unique hearing generally considered comparable to parole revocation in which the "full panoply of rights due a defendant ... does not apply.”  Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond’s supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  The relevant portion of 18 U.S.C. § 3583(k) provides that sex offenders on supervised release who commit “any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment … not less than 5 years.”

Haymond appealed to the Tenth Circuit Court of Appeals, arguing that “(1) that the presence of images in his phone cache was insufficient to show by a preponderance of the evidence that he knowingly possessed child pornography, and (2) that 18 U.S.C. § 3583(k) is unconstitutional because it deprives him of due process.”  The Tenth Circuit affirmed the district court’s finding of child pornography possession and the revocation of Haymond’s supervised release, but vacated the mandatory sentence and remanded the case back to the District Court for resentencing.

A split panel of Tenth Circuit held that 3583(k) was unconstitutional for two reasons.  The majority first asserted that the statute impermissibly strips the sentencing judge of discretion established under Booker and its progeny because it imposes a mandatory minimum sentence.  The court also asserted that it unlawfully imposes heightened punishment using  a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne

The government filed a petition for a writ of certiorari on June 15, 2018 posing this question for review:

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

With certiorari granted last month and the briefs forthcoming, this case poses the potential to impact not only the operation of federal supervised release revocation, but also the future of Apprendi rights. 

In coming posts, the briefs filed by the parties and potential amici will be discussed.

Prior related posts:

November 25, 2018 in Blakely in the Supreme Court, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, November 24, 2018

What might the Founders have to say about modern federal sentencing debates?

HamiltonI had the great fortune last night to (finally!) get to see the musical Hamilton (in Chicago).  Reflecting on the play and the history of the founding of the United States, I could not resist wondering aloud here about how the historic figures of Founding era might have viewed the federal sentencing controversies today.

Because I am not a constitutional historian, I cannot provide a definitive account of what all the Framers said about crime and punishment.  But I can highlight the work here of Professor John Bessler highlighting the impact and import of Italian thinker Cesare Beccaria's book On Crimes and Punishments on their thinking:

Beccaria’s book shaped American history.  George Washington bought a copy in 1769 and, during the Revolutionary War, wrote Congress that death sentences were too frequent, lamenting “the want of a proper gradation of punishments.”  At the Boston Massacre trial in 1770, John Adams forcefully quoted Beccaria’s words in defending British soldiers accused of murder, with his son John Quincy Adams later noting the “electrical effect” of those words.   And in Virginia, Thomas Jefferson and James Madison sought to curtail capital offenses by pushing for the adoption of “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital.”

One way in which Beccaria influenced America’s Founding Fathers is by shaping their views on cruelty, the concept embedded in the U.S. Constitution’s Eighth Amendment.  James Wilson — a signer of the Declaration of Independence and the U.S. Constitution — regularly cited Beccaria’s work and called “cruel” punishments “dastardly and contemptible.” And in the 1820s, Madison spoke of his attraction to “penitentiary discipline” as a substitute for “the cruel inflictions so disgraceful to penal codes.”  After receiving an anti-death penalty pamphlet that quoted Beccaria, Madison wrote to a Kentucky physician: “I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it.”...

One of Beccaria’s core principles — embraced by American revolutionaries such as John Adams, Thomas Jefferson, James Wilson and William Bradford — was that any punishment which is not “absolutely necessary” is “cruel” and “tyrannical.”

I can also here note a few classics directly from the pen of Framers, such as Alexander Hamilton in Federalist No. 74 defending a broad and unfettered pardon power vested in the President:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.  The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.  As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

And Thomas Jefferson starts his "Bill for Proportioning Crimes and Punishments" with an accounting of the need and value of properly proportioned punishments:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

I am inclined to read all these sources and resources as evidence that the Founders would have been quite supportive of the FIRST STEP Act and of modern US Presidents using their clemency powers often and on behalf of a lot more than turkeys.

November 24, 2018 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, November 23, 2018

Noticing California Gov Jerry Brown's recent robust approach to clemency

The Marshall Project earlier this week had this notable account of the outgoing California Gov's clemency history under the headline "The Jerry Brown Way of Pardoning."  Here is an excerpt from this piece:

Unlike President Donald Trump, who has focused attention on cases brought to him by fellow celebrities and on political allies, Brown’s clemency decisions focus on people facing what the governor seems to view as systemic injustices.  They are often timed to coincide with Catholic holidays, a reflection of his faith.

“It’s a recognition that people can, and do, change — even after committing terrible crimes,” Evan Westrup, a spokesman for Brown, said in a statement.  “It’s also a recognition of the radical and unprecedented sentencing increases and prison building boom of the 80s and beyond as well as the diminished role of parole as a vital ingredient in California’s system of sentencing and rehabilitative process.”

Among the people who have received clemency recently: Southeast Asian immigrants who came to the United States as children and who face deportation unless granted a pardon; non-citizen military veterans who were deported for crimes committed after their service; and prisoners serving life without parole, who were given hope of release....

During his first two terms in office, from 1975-83, Brown oversaw a dramatic shift in sentencing policy that led to a surge in the state’s prison population and coincided with a number of tough-on-crime bills.  In those years, he handed down only one commutation and about 400 pardons.... By contrast, since returning to the governor’s office in 2011, Brown has issued 82 commutations and more than 1,100 pardons, far more than any California governor since at least the early 1940s.

The previous governor, Arnold Schwarzenegger, issued only 10 commutations and 15 pardons during his two terms. His predecessor, Gray Davis, issued none.

A few days after this piece was published, Gov Brown issued another batch of clemencies as reported in this AP article headlined "California governor pardons former state lawmaker, refugees."  Here is how this piece starts:

A former state senator convicted of lying about his residence and three refugees from Vietnam who could face deportation are among 38 people pardoned Wednesday by Gov. Jerry Brown ahead of the Thanksgiving holiday.  Brown's pardons also include a man who just lost his Paradise home in a wildfire.

The Democratic governor also commuted the sentences of 70 people still serving time, including Walter "Earlonne" Woods, who co-hosts a podcast called "Ear Hustle" from inside San Quinton state prison.

November 23, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 22, 2018

So very thankful this year that so very many voices on the political right are actively advocating for criminal justice reforms

As regular readers know, I have long thought and advocated that all sorts of conservatives could and should robustly embrace all sorts of criminal justice reform given avowed commitments to personal liberty, small government, human dignity and the rule of law.  Almost exactly a decade ago in this 2008 Harvard Law & Policy Online article, published right after Prez Obama was elected to his first term, I urged progressives to start "aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration."  I further suggested:

Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

The kinds of coalitions I was hoping to see started to emerge (albeit too slowly for my taste) during the Obama Administration, and now they appear to be on full display as discussion of federal reforms finds expression in the debate over the FIRST STEP Act.  And so today I find myself especially thankful that it is now so much easier to find right-leaning organization and voices calling for the passage of federal reforms rather than resisting such reform.  Here, for example, is just a quick round up of just some recent voices on the political right actively advocating for the FIRST STEP Act:

From Politico, "Religious right to start pressure campaign around criminal justice reform"

From ALEC Action, "Members of the U.S. Senate: Please Support the FIRST STEP Act (S.3649)"

From John-Michael Seibler & Joe Luppino-Esposito at The Heritage Foundation, "How This Criminal Justice Reform Bill Could Make Our Neighborhoods Safer"

Via local NPR, "Kelley Paul Presses McConnell To Move Criminal Justice Reform Forward"

From Michelle Malkin in the National Review, "It’s Time to Pass the First Step Act: It's pro-cop, pro-borders, and tough on injustice."

From Pastor Paula White-Cain in the Washington Examiner, "Prison reform bill represents what’s beautiful about America"

Relatedly, Senator Charles Grassley has this notable new posting titled "Diverse Group of Organizations Endorse Bipartisan First Step Act" that highlights "a letter to Majority and Minority leaders in both the Senate and House of Representatives, [in which] 42 organizations, including faith-based groups and conservative think tanks, called on Congress to pass the comprehensive criminal justice reform package before the end of the year."

November 22, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, November 21, 2018

Notable account of Acting AG Matt Whitaker's sentencing work as US Attorney in Iowa

The Washington Post has this interesting new piece about the current Acting US Attorney General's sentencing record as a chief federal prosecutor in Iowa. The lengthy piece is headlined, "As U.S. attorney, Whitaker imposed longer-than-usual drug sentences," and merits a full read. Here are snippets:

Raeanna Woody’s crimes hardly seemed like they would add up to a life sentence in prison. She had two nonviolent drug convictions, for possessing marijuana and delivering 12 grams of methamphetamine. But when she was arrested in a third drug case, she said, the office of U.S. Attorney Matthew G. Whitaker decided to make an example of her.

Under Whitaker, who is now acting attorney general, Woody was given a choice: spend the rest of her life in jail, or accept a plea bargain sentence of 21 to 27 years, according to court records. She took the deal.

Federal Judge Robert W. Pratt in the Southern District of Iowa later accused prosecutors of having “misused” their authority in her nonviolent case. He urged President Barack Obama to commute her sentence — and Obama did shorten her term , after she had served 11 years.

Woody’s case highlights one of the most controversial if little-known aspects of Whitaker’s career: his efforts to obtain unusually stiff sentences for people accused of drug crimes. Whitaker spent nearly five years as U.S. attorney for the Southern District of Iowa. His office was more likely than all but one other district in the United States to use its authority to impose the harshest sentences on drug offenders, according to a finding by a different Iowa federal judge, Mark W. Bennett, who it called a “deeply troubling disparity.”

“If the president can look at my case and he can see that what I had done wasn’t severe enough to warrant that many years, then why was I given that many years to begin with, why was that much of my life taken from me?” Woody, a 57-year-old mother of five, said in an interview. “I blame Whitaker’s office and everybody underneath him.”...

The rate at which Whitaker’s office and another one in Iowa imposed the harshest possible sentence was a “jaw-dropping and deeply troubling disparity compared to the vast majority of federal courts in the nation,” Bennett said in a statement to The Washington Post. Whitaker never appeared before him, and he declined to comment about Whitaker’s term as U.S. attorney.

Whitaker’s Southern District of Iowa used enhanced sentences in 84 percent of relevant cases, compared with 26 percent nationwide, Bennett’s finding said. Bennett concluded that a defendant in the Northern District of Iowa — which had a rate of filings similar to Whitaker’s district — was 2,532 percent more likely to be subjected to an enhanced sentence compared with someone convicted of a similar offense in a Nebraska district. “I found their harshness in filing 851 notices inexplicable,” Bennett said....

In Raeanna Woody’s case, the filing was used as leverage by Whitaker’s office. Woody, whose last name at the time was Paxton, appeared before Judge Pratt in the Southern District on July 10, 2008. Her previous drug convictions resulted in little or no jail time. Her third offense occurred when authorities determined that she drove a car in which another individual was pursuing a drug deal.

Woody said a prosecutor from Whitaker’s office, Jason T. Griess, had informed her that, as a third-time offender, her sentence could be “enhanced” to mandatory life in prison under an 851 filing. She said she had no choice but to make a plea bargain that resulted in the sentence of 21 to 27 years. “I remember them saying through Jason that he wouldn’t budge, and ‘me and my office are going to make an example out of you.’ ”...

Pratt [later] then wrote a letter to Obama’s pardon attorney expressing his displeasure with how the case had been handled by Whitaker’s office. Pratt wrote in the May 13, 2016, letter that he was forced to impose a sentence that “was entirely disproportionate” to her crime.

The “most compelling reason” that the president should grant clemency, Pratt wrote, was that Whitaker’s office “misused” its power by threatening Woody with a life sentence by using the 851 filing, “effectively removing my discretion” to give Woody “a fair sentence.” Pratt stressed that Woody “was and is a nonviolent offender. She was not a significant player in the overall ‘conspiracy’ in this case. . . . This was not a conspiracy that involved ‘drug kingpins.’ It was a situation where methamphetamine-addicted individuals resorted to selling the drug to support their own addictions.”

For me, this story is not as much about the work of a particular US Attorney as it is yet another tale about the need to reform federal sentencing laws to reduce the sentencing powers now given to federal prosecutors rather than to federal judges.

November 21, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 20, 2018

"Behind the Curtain: Secrecy and the Death Penalty in the United States"

The title of this post is the title of this notable new report released today by The Death Penalty Information Center.  Here is part of its executive summary:  

During the past seven years, states have begun conducting executions with drugs and drug combinations that have never been tried before.  They have done so behind an expanding veil of secrecy laws that shield the execution process from public scrutiny.

As pharmaceutical companies have taken action to prevent states from using their medicines to execute prisoners, states have responded by procuring whatever drugs seem available and obtaining them secretly through questionable means.

Since January 2011, legislatures in thirteen states have enacted new secrecy statutes that conceal vital information about the execution process.  Of the seventeen states that have carried out 246 lethal-injection executions between January 1, 2011 and August 31, 2018, all withheld at least some information about the about the execution process.  All but one withheld information about the source of their execution drugs. Fourteen states prevented witnesses from seeing at least some part of the execution.  Fifteen prevented witnesses from hearing what was happening inside the execution chamber. None of the seventeen allowed witnesses to know when each of the drugs was administered.

This retreat into secrecy has occurred at the same time that states have conducted some of the most problematic executions in American history.  Lethal injection was supposed to be a more humane method of execution than hanging, the firing squad, or the electric chair, but there have been frequent reports of prisoners who were still awake and apparently experiencing suffocation and excruciating pain after they were supposed to be insensate.  These problems have intensified with the use of new drug formulas, often including midazolam.  In 2017, more than 60% of the executions carried out with midazolam produced eyewitness reports of an execution gone amiss, with problems ranging from labored breathing to gasping, heaving, writhing, and clenched fists. In several of these cases, state officials denied that the execution was problematic, asserting that all had proceeded according to protocol. But without access to information about drugs and the execution process, there is no way the public can judge for itself....

This report documents the laws and policies that states have adopted to make information about executions inaccessible to the public, to pharmaceutical companies, and to condemned prisoners.  It describes the dubious methods states have used to obtain drugs, the inadequate qualifications of members of the execution team, and the significant restrictions on witnesses’ ability to observe how executions are carried out.  It summarizes the various drug combinations that have been used, with particular focus on the problems with the drug midazolam, and provides a state-by-state record of problems in recent executions. It explains how government policies that lack transparency and accountability permit states to violate the law and disregard fundamental principles of a democratic government while carrying out the harshest punishment the law allows.

November 20, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

"The process to pardon turkeys is more rational than the one used for humans"

Regular readers know I am ever eager this time of year to complain about the contrast between the annual predictable turkey pardons and unpredictable White House clemency efforts.  Helpfully, my colleague and clemency guru Mark Osler has this matter well covered in this new CNN commentary with a headline that I have used as the title for this post.  Here are excerpts:

This week, we will once again be treated to the awkward spectacle of the President pardoning a turkey while confused-looking children look on.  Of late, that ceremony has been accompanied by a raft of opinion pieces suggesting the President should consider granting clemency to some humans, as well.  I've written a few of those myself.

After years of fruitlessly making that same argument, a more worthwhile observation might be this: The process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans.  In particular, the turkey-choosing process features four attributes sorely missing from the human one.

First, it occurs regularly.  Turkeys are pardoned every year, not just in the waning days of an administration.  Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation, or NTF, responsible for managing a thorough selection process. Typically, the NTF head will familiarize dozens of birds with human contact and saturate them with loud music before making a final choice.  Third, there are defined criteria.  The finalists are selected based on their willingness to be handled, their health and their natural good looks.  Fourth, attention is paid to making sure they thrive after their grant of clemency.  After the ceremony, they are sent to Virginia Tech's "Gobbler's Rest" exhibit, where they are well cared for.

This contrasts sharply with the process of giving clemency to humans.  For the past seven years I have worked with my students to prepare and file petitions on behalf of deserving clients, and have found that the procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release....

What's missing is all the things that make the turkey process work.  It's irregular, as inattention by any one of the numerous sequential evaluators stops the whole thing.  And instead of objective specialists, we have decisions being made by the deputy attorney general, who is neither objective nor a specialist.  The criteria are poorly articulated and currently issued by the stiflingly conflicted DOJ.  And finally, there is little to no connection between the process and what comes after, as prison gives way to freedom.

Is there a better way?  Sure.  Just take the process out of the DOJ and put it in the hands of a board, as most states do, and then have that board make regular recommendations pursuant to consistent criteria while monitoring outcomes.  If we did that, the clemency process would finally be at least as functional as the one that informs a silly holiday tradition.  There is a place for circuses, but we also need to regularly bake the bread of mercy that is promised in the Constitution.

November 20, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 19, 2018

Wondering about plea deals and departure authority in Washington after sentencing in awful rape and manslaughter case

Debates about federal sentencing and judicial discretion have long included district judges lamenting having to impose unduly severe sentences under federal statutory mandatory minimums (or under the federal sentencing guidelines before Booker made them advisory).  But this stunning story out of Washington, headlined "Man who raped dying Everett teen gets less than 3 years," reports on a state sentencing judge lamenting having to impose what seems like an unduly lenient sentence under state sentencing guidelines. Here are the details:

Alyssa Noceda was still growing up when she died. The young man who watched her overdose, Brian Varela, will serve less than three years in prison for giving her drugs, raping her and joking about her lifeless body over texts with friends.

Superior Court Judge Linda Krese said Thursday she was bound by law to sentence Varela to 2 years and 10 months.  It’s the most time allowed under state guidelines for second-degree manslaughter, third-degree rape and unlawful disposal of human remains, for someone with no prior record.

Krese was “surprised, even outraged,” by the inadequacy of the sentence. She has seen auto theft cases with more serious penalties.  “I’m not sure the Legislature really contemplated something like this,” Krese said.

Noceda had just turned 18.... Varela, 20, told detectives Noceda came to a party in February at a mobile home near Martha Lake. In Varela’s room, she snorted crushed pills and he offered her a dab of concentrated THC.  She collapsed within a minute of mixing the two, according to Varela’s story. He told police the pills were Percocet.  Tests later showed she’d taken a fatal mix of fentanyl and alprazolam, a generic name for Xanax.  Varela did not call for help.  Instead he texted pictures of Noceda’s partly nude body to coworkers, with comments like, “LOL.”

“Bro you killed her,” one friend said. “But not joking she od bruh,” Varela wrote.  He didn’t care, he added, because he was sexually assaulting her “to pass the time.”...

Varela played an online game until he fell asleep, according to charging papers. He woke up the next morning, he told police, to find Noceda’s lips blue.  She was cold to the touch.  Again, he didn’t call for help.

He went to work at Dairy Queen.  Once he returned, he stuffed the body in a plastic crate. He kept her hidden for days.  He used the thumbprint of Noceda’s hand to hack into her iPhone, to make a post on Snapchat suggesting that she ran away.  He washed her body to try to destroy evidence.  He told friends he planned to bury her near Marysville, then flee to Mexico.  One coworker called police....

Deputy prosecutor Toni Montgomery reached a plea agreement in September. “His complete disregard for the value in her life, and the way he treated her body and what he did with it — 34 months is really the only sentence that would be appropriate, given the current sentencing structure,” Montgomery said in court.

Noceda’s mother [Gina Pierson] and aunt cried when they learned the likely sentence....  In a packed courtroom Thursday, friends and family wore matching black hoodies with Justice-4-Alyssa printed across the back.  The front showed Noceda, with angel wings sprouting from her shoulders.  One by one for about a half-hour, Noceda’s loved ones stood in front of the judge and called Varela a monster and a murderer.

When it was Varela’s turn in court, he spoke two sentences. “I’m sorry for my foolish actions,” he said. “Whatever I get is what I deserve.”

In an interview before the hearing, Pierson said state laws need to change so other families don’t suffer like hers.  She struggled to explain her feelings toward the defendant. She has tried to forgive him, she said.

I can fully understand why the mother of the victim here thinks "state laws need to change," but I do not understand why existing Washington law could not have allowed for a more serious sanction in this horrible case.  For starters, the facts as presented here would arguably fit a charge of Rape in the Second Degree under Washington law ("victim is incapable of consent by reason of being physically helpless"), which is a much more serious offense likely to carry a much more serious sanction. 

Even without a conviction of a higher charge, the manslaughter and rape charges here carry statutory maximum sentences of 10 and 5 years.  For a first offender, it seems, the applicable sentencing guidelines provide for a much lower maximum sentence, but Washington law provides a lengthy list of aggravating circumstances that can allow for a departure above the standard sentencing range.  Any number of possible aggravating circumstances seem readily provable here: e.g., the first two listed are "defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim" and "defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance" and other potential aggravators include the "offense involved an invasion of the victim's privacy" and the "defendant demonstrated or displayed an egregious lack of remorse."

Because a number of aggravating circumstances seem to fir this case, I am not sure the sentencing judge here was correct when saying "I’m not sure the Legislature really contemplated something like this."  Rather, as I see it, the Washington legislature expressly provided a means for judges to go above the applicable sentencing range if and when prosecutors pursue and prove one of these aggravating factors  Perhaps someone who know the work-a-day realities of Washington sentencing law and practice can help me better understand what seems to have gone wrong here.

November 19, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Another round of news and notes from the front lines of the debate over the FIRST STEP Act

I am not sure I will need to do regular round-ups of stories and commentary surrounding the prospects of the FIRST STEP Act. But I am sure that there have been lots of notable developments and discussion since I did this last round-up of stories just a few days ago. So, from various sources and various authors (including Jared Kushner):

November 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Justice Gorsuch, joined by Justice Sotomayor, dissents from denial of cert in Confrontation Clause case from Alabama

Because the Confrontation Clause has been deemed inapplicable at sentencing (which has always seemed problematic to me), I tend not always pay a lot of attention to the Supreme Court's modern Confrontation Clause jurisprudence.  But I do always pay a lot of attention to any indication that a new Justice is particularly concerned about the rights of criminal defendants, and so it is now interesting and notable to see Justice Gorsuch (joined by Justice Sotomayor) penning a dissent from the Supreme Court's denial of cert this morning in Stuart v. Alabama.  Here are key paragraphs from the start and end of the dissent:

More and more, forensic evidence plays a decisive role in criminal trials today.  But it is hardly “immune from the risk of manipulation.”  Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009).  A forensic analyst “may feel pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution.”  Ibid.  Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.  See ibid.; see also Bullcoming v. New Mexico, 564 U.S. 647, 654, n.1 (2011) (documenting laboratory problems).  To guard against such mischief and mistake and the risk of false convictions they invite, our criminal justice system depends on adversarial testing and cross-examination.  Because cross-examination may be “the greatest legal engine ever invented for the discovery of truth,” California v. Green, 399 U.S. 149, 158 (1970) (internal quotation marks omitted), the Constitution promises every person accused of a crime the right to confront his accusers. Amdt. 6.

That promise was broken here.  To prove Vanessa Stuart was driving under the influence, the State of Alabama introduced in evidence the results of a blood-alcohol test conducted hours after her arrest.  But the State refused to bring to the stand the analyst who performed the test.  Instead, the State called a different analyst.  Using the results of the test after her arrest and the rate at which alcohol is metabolized, this analyst sought to estimate for the jury Ms. Stuart’s blood-alcohol level hours earlier when she was driving.  Through these steps, the State effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction.  The engine of cross-examination was left unengaged, and the Sixth Amendment was violated....

Respectfully, I believe we owe lower courts struggling to abide our holdings more clarity than we have afforded them in this area.  Williams imposes on courts with crowded dockets the job of trying to distill holdings on two separate and important issues from four competing opinions.  The errors here may be manifest, but they are understandable and they affect courts across the country in cases that regularly recur.  I would grant review.

November 19, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, November 18, 2018

Four changes to the FIRST STEP Act sought by Senator Tom Cotton

As regular readers know, Senator Tom Cotton has been the leading vocal advocate against significant statutory federal criminal justice reform in recent years (see, e.g., Cotton commentary covered here in 2016 regarding the SRCA and more recently here and here on the FIRST STEP front.)  I have recently been informed by knowledgeable authority that Senator Cotton's office made the following offer to the bill's proponents concerning modifications to the House-passed version of the FIRST STEP Act that would lead Senator Cotton to be supportive or neutral rather than in opposition to the bill.  It is my understanding that these suggested modifications were generally rejected (though I think #1 may have been partially adopted in the latest version of the bill now being discussed in the Senate).

1.  Add an exclusion from the early-release credits for heroin and fentanyl traffickers.  The rationale is that there are already 57 exclusions based on the severity of the crime or the likelihood that the offender could engage in that conduct from home, and trafficking those particular drugs fits both those criteria.  It's consistent with what the President has called for.  These offenders would still be eligible for expanded good time credits, and for an expanded home confinement allowance under other sections of the bill (which TC doesn't like, but he's moderated his ask.)

2.  For changing the good-time credits from 47 days per year to 54 days per year: make that change prospective, instead of retroactive. It's not a huge difference in time — likely a few weeks or a couple months — but if the change is prospective, then we would avoid releasing ~4,000 offenders the day the bill is passed before they have gone through any of the anti-recidivism training.

3.  Add Senator Cotton, Graham, and Kennedy's bill to adjust the weight for applying section 841 punishments to fentanyl trafficking to reflect fentanyl's potency.  Right now, the weights are grossly skewed and do not treat fentanyl with the same level of harshness as heroin (proportionately), even though fentanyl is far more deadly.  The President endorsed this bill when we introduced it, or he at least spoke favorably about it.

4.  Add Senator Cotton & Hatch's fix to the Armed Career Criminal Act.  This fix would impact about 300 three-time + repeat offenders per year; it would revert back to the status quo when the ACCA passed unanimously, after being [supported] by Ron Wyden; and [a fix has] been called for by even Elena Kagan [recently] at SCOTUS.  It's also a huge priority for federal prosecutors because dealing with Johnson's fallout has been a massive time-suck to their ability to do their jobs.

He has other concerns with the bill, but recognizes that he can't get everything he wants.... To give you a sense of how modest #3 and #4 are, 267 traffickers were charged with fentanyl trafficking in FY 2017, and #4 would likely affect about 300 offenders per year.

That's 567 of the most dangerous and repeat offenders who could face harsher sentences under this compromise, while the vast majority of other federal offenders and the ~180,000 federal prisoners would be newly eligible for at least some relief.

We think this would be better policy, better politics, and could pass easily without forcing Republican Senators to choose between supporting the criminal justice bill or supporting law enforcement and their voters who do not favor a criminal justice bill that solely reduces punishments.

As regular readers know, I already think the FIRST STEP Act falls far short of needed reforms to the federal criminal justice system, and so I am not especially keen on additional carve outs.  But if additional carve outs are needed to get a bill to the desk of the President, I am so very eager to see a deal get done.  There has been significant talk of significant bipartisan support for reform now for the better part of a decade, and yet no consequential statutory reform has made its way through Congress.  it seems we are really close, but it has seemed that way before, too.  And if Prez Trump really wants to see this get done, and if he is really the great deal-maker he claims to be, there surely has to be a viable path forward to legislation completion (or so I want to believe). 

November 18, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Who Sentences | Permalink | Comments (3)

Spotlighting the still-challenging politics that surround the intersection of marijuana reform, criminal justice reform and racial inequities

Today's must-read for both marijuana reform and criminal justice reform fans is this lengthy new Politico article fully headlined "Racial Justice and Legal Pot Are Colliding in Congress: The latest fight over criminal justice reform is over allowing felons access to newly legal aspects of the cannabis industry. Lawmakers are getting woke — slowly." I recommend this piece is full, and here are some extended excerpts:

Thanks to Senate Majority Leader Mitch McConnell, the [Farm] bill includes an amendment that would permanently remove hemp from the list of federally banned drugs like heroin and cocaine, freeing hemp from the crippling legal stigma that has made it economically unviable for the past four decades.  But that amendment also includes a little-noticed ban on people convicted of drug felonies from participating in the soon-to-be-federally-legal hemp industry.

Added late in the process, apparently to placate a stakeholder close to McConnell, the exception has angered a broad and bipartisan coalition of lawmakers, hemp industry insiders and religious groups who see it as a continuing punishment of minorities who were targeted disproportionately during the War on Drugs and now are being denied the chance to profit economically from a product that promises to make millions of dollars for mostly white investors on Wall Street....

[L]awmakers like McConnell, who have discovered the economic benefits of relaxing prohibitions on products such as hemp, have nevertheless quietly found ways, like the Farm Bill felon ban, to satisfy the demands of their anti-legalization constituents, to the chagrin of pro-cannabis lawmakers and activists. After POLITICO Magazine reported on the drug-crime felon ban in August, three senators — Cory Booker (D-New Jersey), Rand Paul (R-Kentucky), and Jeff Merkley (D-Oregon) — wrote to Senate leadership demanding the removal of the ban, citing its “disparate impact on minorities,” among other concerns.

“I think there’s a growing recognition of the hypocrisy and unfairness of our nation’s drug laws, when hundreds of thousands of Americans are behind bars for something that is now legal in nine states and something that two of the last three Presidents have admitted to doing,” Booker told POLITICO Magazine. “If we truly want to be a just and fair nation, marijuana legalization must be accompanied by record expungement and a focus on restorative justice.”...

[The] once-radical notion that felons ought to gain priority for entry into a newly legal industry — instead of being shut out — has quietly gained bipartisan support on Capitol Hill, albeit not among Republican leadership.  In the House, this mounting opposition to the continuing punishment of felons first cropped up in September when the Judiciary Committee passed its first pro-marijuana bill.  It would expand access to scientific study of the cannabis plant, a notion agreed-upon by marijuana’s supporters and detractors alike.  However, Democrats almost killed the bill because it included language that barred felons (and even people convicted of misdemeanors) from receiving licenses to produce the marijuana.

Felon bans are commonplace in legal marijuana programs.  Every state has some version of it, but most of them have a five- or 10-year limit.  But the felon bans in both the Senate’s Farm Bill and the House’s marijuana research bill are lifetime bans, and the House bill includes misdemeanors, too. “Any restriction on misdemeanors goes in the exact contrary direction of the Second Chance Act,” said Rep. Jerry Nadler (D-New York), who will become chairman of the Judiciary Committee in January.  His criticism was echoed by Steve Cohen (D-Tennessee), who sought to have the misdemeanor language struck from the bill until its sponsor, Matt Gaetz (R-Florida), promised to address that language when it comes to the House floor.

In the Senate, the movement to protect the legal marijuana trade has taken the form of the proposed bipartisan Gardner-Warren STATES Act, which would maintain the status quo of federal non-interference of state-legal programs that was upended when then-Attorney General Jeff Sessions repealed the Cole Memo, an Obama-era document that outlined a hands-off approach to state-legal programs.  Booker’s Marijuana Justice Act would adopt California-style principles and apply them federally, going far beyond the STATES Act, removing marijuana from Schedule I (defined as having no medical value and a high risk of abuse) and eliminating criminal penalties for marijuana.  But unlike other pro-marijuana bills, it would also deny federal law-enforcement grants to states that don’t legalize marijuana; direct federal courts to expunge marijuana convictions; and establish a grant-making fund through the Department of Housing and Urban Development for communities most affected by the War on Drugs.

Booker’s bill has become popular among Senate Democrats.  Ron Wyden, Kirsten Gillibrand, Bernie Sanders, Kamala Harris, Jeff Merkley and Elizabeth Warren have signed on as co-sponsors — a list that looks a lot like a lineup of presumed candidates for the 2020 Democratic presidential primary.  “For too long, the federal government has propped up failed and outdated drug policies that destroy lives,” Wyden told POLITICO Magazine.  “The War on Drugs is deeply rooted in racism.  We desperately need to not only correct course, but to also ensure equal justice for those who have been disproportionately impacted. People across America understand and want change. Now, Congress must act.”

Recent polling shows that Americans agree with Wyden — to a point.  There is a widespread acceptance of legalizing marijuana.  Gallup has been tracking this number since 1969, when only 12 percent of Americans believed in legalizing it; in October, Gallup put the number at 64 percent, the highest ever number recorded.  Pew says it is 62 percent, also its highest number ever. 

But there is far less acceptance of the idea that the War on Drugs has had an adverse impact on poorer, minority communities, or that there should be some form of compensation in terms of prioritized access to the new industry. A  poll conducted by Lake Research Partners, a progressive DC-based polling firm, earlier this year on the “Politics of Marijuana Legalization in 2018 Battleground Districts” found that 62 percent of the 800 likely voters surveyed agreed with the idea “we need legalization to repair the financial and moral damage of the failed War on Drugs.”  However, when the pollsters added a racial component to this message — whether the respondents felt that the marijuana prohibition “unfairly target[s] and destroy[s] minority communities” — only 40 percent found that message to be “very convincing.”...

[M]any members of the Congressional Black Caucus have been slow to support marijuana legalization. But the CBC finally made its position on this issue clear in June when its 48-member caucus voted in an “overwhelming majority” to support policies beyond mere decriminalization: “Some of the same folks who told African Americans ‘three strikes and you’re out’ when it came to marijuana use and distribution, are now in support of decriminalizing the drug and making a profit off of it,” CBC Chairman Cedric L. Richmond, Democrat from Louisiana said at the time. “The Congressional Black Caucus supports decriminalizing marijuana and investing in communities that were destroyed by the War on Drugs…” 

Arguments for legalizing marijuana haven’t been entirely persuasive to sway many in the conservative black community, but re-framing it in the context of civil rights has brought many around to this new way of thinking. “What is moving conservative black and brown folks is this idea that we’re on the horizon of marijuana legalization,” according to Queen Adesuyi of the Drug Policy Alliance. “So the idea is in order to do this in a way that is equitable and fair, you have to start on the front end of alleviating racially biased consequences of prohibition while we’re legalizing — and that means expungement, re-sentencing, community re-investment, and looking at where marijuana tax revenue can go, and getting rid of barriers to the industry.”

Now that Democrats have won control of the House, co-founder of the Cannabis Caucus, Rep. Earl Blumenauer (D-Oregon), is poised to implement his blueprint for how the House under Democratic leadership would legalize marijuana at the federal level.  Racial justice is front-and-center in that plan.  The memo he sent to Democratic leadership reads in part, “committees should start marking up bills in their jurisdiction that would responsibly narrow the marijuana policy gap — the gap between federal and state marijuana laws — before the end of the year. These policy issues… should include: Restorative justice measures that address the racial injustices that resulted from the unequal application of federal marijuana laws.”

Cross-posted at Marijuana Law, Policy and Reform.

November 18, 2018 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Saturday, November 17, 2018

"Evaluating Intellectual Disability: Clinical Assessments in Atkins Cases"

The title of this post is the title of this notable new paper authored by James Ellis, Caroline Everington and Ann Delpha. Here is its abstract

The intersection of intellectual disability and the death penalty is now clearly established.  Both under the U.S. Supreme Court’s constitutional decisions and under the terms of many state statutes, individual defendants who have that disability cannot be sentenced to death or executed.  It now falls to trial, appellate, and post-conviction courts to determine which individual criminal defendants are entitled to the law’s protection.

This Article attempts to assist judges in performing that task.  After a brief discussion of the Supreme Court’s decisions in Atkins v. Virginia, Hall v. Florida, and Moore v. Texas, it analyzes the component parts and terminology of the clinical definition of intellectual disability.  It then offers more detailed discussion of a number of the clinical issues that arise frequently in adjudicating these cases.  For each of these issues, the Article’s text and the accompanying notes attempt to provide judges with a thorough survey of the relevant clinical literature, and an explanation of the terminology used by clinical professionals.  Our purpose is to help those judges to become more knowledgeable consumers of the clinical reports and expert testimony presented to them in individual cases, and to help them reach decisions that are consistent with what the clinical literature reveals about the nature of intellectual disability and best professional practices in the diagnostic process. 

November 17, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, November 16, 2018

Senate Majority Leader McConnell tells Prez Trump that FIRST STEP Act will not get done this year

According to this new New York Times piece, "Senator Mitch McConnell told President Trump in a private meeting on Thursday that there is not likely to be enough time to bring a bipartisan criminal justice bill up for a vote this year, regardless of the support it has in the Senate and the White House, according to people familiar with the meeting." here is more:

Mr. McConnell, who as majority leader controls the Senate floor, delivered the news in a previously scheduled meeting at the White House convened to discuss the chamber’s legislative agenda for the remaining weeks of the term.

Lawmakers from both parties have been working furiously to build support for the compromise legislation that would begin to reverse some of the tough-on-crime federal policies of the 1980s and 1990s that incarcerated African-American offenders at much higher rates than white offenders.

Mr. Trump enthusiastically endorsed the proposal this week, and Speaker Paul D. Ryan, Republican of Wisconsin, pledged to move it across the finish line in the House “this term.” But Mr. McConnell’s conclusion could all but foreclose the possibility that Congress will vote on the bill this year.

Publicly, Mr. McConnell has avoided putting his thumb on the scale for or against the legislation. He told reporters on Wednesday that if proponents secured the support of at least 60 senators, he would be willing to push the bill forward, but cautioned that he would have to “see how it stacks up against our other priorities going into the end of our session.”

Congress must also come to an agreement on how to fund a handful of federal departments, including Homeland Security, and resolve an impasse over a major farm bill, among other smaller issues. Don Stewart, a spokesman for Mr. McConnell, reiterated those points in a statement on Friday, adding, “The support for, and length of time needed to move the new bill is not knowable at this moment.”

But Mr. McConnell told the president that the bill would most likely eat up about 10 days on the Senate floor — time that he did not have between now and the scheduled end of the legislative session on Dec. 14, according to the people familiar with the remarks, who were granted anonymity to describe the private meeting. They were not connected to Mr. McConnell. If the bill had enough support, Mr. McConnell said, he would be willing to bring it up next year, after the new Congress is seated.

Supporters of the legislation, which includes anti-recidivism programs, and the expansion of early release credits and sentencing changes, worry that Mr. McConnell is being a less-than-neutral arbiter. They believe that if consideration slips into January, when Democrats who favor more expansive sentencing changes take control of the House, the current compromise could collapse....

At the Senate Republicans’ weekly caucus luncheon at the Capitol, Mr. McConnell acknowledged that the changes had influential supporters who had worked hard on the issue, but also invited two of its chief critics, Senators Tom Cotton of Arkansas and John Kennedy of Louisiana, to deliver remarks, two Republican congressional officials said.

Mr. Cotton, who has been perhaps the loudest critic of the bill’s sentencing changes in the Senate, urged colleagues to slow down the process, saying that the bill’s impact and implications were too expensive to push through without hearings, according to another official familiar with his remarks. He stressed opposition by some law enforcement groups and warned that a draft version of the bill he had seen would lead to the immediate release of thousands of felons onto the streets.

Senator Mike Lee, a Utah Republican who helped write the legislation, pushed back against Mr. Cotton’s characterization. So did Senator Charles E. Grassley, the Iowa Republican who is chairman of the Judiciary Committee and led the compromise effort. Mr. Grassley said that Mr. Cotton’s remarks made him sound like “some sort of pinko commie.”...

The delay in bringing up the legislation described to Mr. Trump is not the first time that proponents of changes in the sentencing and prison systems have bumped up against Mr. McConnell. A similar coalition of lawmakers and outside groups made a higher-profile and more expansive attempt to overhaul the criminal justice system during the final years of the Obama administration, and had support from Mr. Ryan and other Republicans. But Mr. McConnell did not allow a vote on the bill before the 2016 elections, worried about sowing divisions among Republicans.

This is quite disappointing, but not surprising, and I am now inclined to fear that no significant form of federal criminal justice reform will be completed as long as Senator McConnell is the Senate's majority leader.

November 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

News and notes from the front lines of the debate over the FIRST STEP Act

The decision by President Donald Trump to support the FIRST STEP Act, discussed here and here, was a critical necessary development for the law to have a chance to passage.  But it was not alone sufficient to ensure the bill even gets a vote, especially as there is talk of Senate Majority Leader Mitch McConnell still being less than eager to advance the bill to the Senate floor.  Various political players and possible ups-and-downs surrounding the bill are well covered in these new articles from the New York TimesPolitico and the Washington Post:

I want so very, very badly to be optimistic about the prospects for the FIRST STEP Act, in any form, to become law very, very soon.  But the pessimistic bet has been a winning one on the federal statutory criminal justice reform front for the last eight years, as politics and gridlock have trumped effective policy advancement.  One would hope that, in a properly functioning democracy, a bill with the support of the President and probably close to 90% of all members of Congress could and would become law.  But I am fearful that these reality may still not be enough to get the FIRST STEP Act into law.  Time will tell (and likely in the next few weeks).

UPDATE Here are some more discouraging headlines and stories for those who may have become unduly optimistic after Prez Trump's endorsement:

November 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, November 15, 2018

Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act

Senator Tom Cotton, who has been the main and most vocal opponents of federal criminal justice reform, has this notable new USA Today commentary.  I was expecting the piece to argue against the FIRST STEP Act that has been endorse by Prez Trump and has wide bipartisan support.  But, as these excerpts highlight, Senator Cotton in this piece primarily articulates what further statutory reforms are needed to fix a broken federal criminal justice system:

Here’s what genuine criminal-justice reform would do: reduce arbitrary government power over lives and protect us from the drug epidemic ravaging our community. Congress can take three simple steps to achieve these goals.

First, we need to clean out the federal criminal code. Today, no one even knows for sure how many federal crimes are on the books. One estimate found between 10,000 and 300,000 regulations that can be enforced criminally, in addition to the more than 5,000 federal criminal laws.

Many of those federal crimes would be funny, if they weren’t so dangerous to our liberty. For example, there’s a federal law against selling “Turkey Ham” as “Ham Turkey.” Think such laws are never enforced? Think again. Gibson Guitars was prosecuted under a century-old law at a cost of millions of dollars to the taxpayers and the company because it allegedly transported wood in a way that may have violated laws of India. We should scrub the federal criminal code and remove such outdated and arbitrary laws. And we should create a transparent database of this shorter, more concise criminal code.

Second, many federal crimes do not require mens rea, or a “guilty mind.” Mens rea, a common element of most state crimes, means that the offender must have a certain state of mental culpability to be charged with the crime. Coupled with the vast and confusing criminal code, the lack of mens rea leaves Americans at risk of arbitrary prosecution for trivial conduct. Senator Orrin Hatch has been a champion for mens rea reform to ensure that, at a minimum, a defendant should have known his conduct was wrong before facing criminal charges. Congress should incorporate these concepts into criminal-justice legislation.

Third, the federal criminal code hasn’t kept up with the opioid crisis, allowing the epidemic to spread across the country.  For example, current law doesn’t reflect the potency of fentanyl, a highly lethal opioid responsible for killing tens of thousands of Americans each year. A trafficker can carry enough fentanyl to kill 5,000 Americans before the lowest mandatory minimum sentence applies, and these traffickers receive a mere five-year sentence for distributing enough poison to kill more Americans than died on 9/11.

Unfortunately, the legislation moving through Congress includes no mens rea reform, no reduction in the criminal code, and no crackdown on deadly drug traffickers. Astonishingly, the bill goes soft on some of the worst crimes — trafficking heroin and fentanyl — by allowing most traffickers to spend up to a third of their sentence at home, where many of them will no doubt return to dealing drugs.

At this point, it’s best for Congress to pause on criminal-justice legislation and take the time to reform our criminal code, include mens rea as an element of most crimes, and strengthen the sentences for dangerous drug crimes. Congress can also focus on how to rehabilitate felons to help them get off on the right foot after serving their sentence. What Congress ought not do is rush through flawed legislation in a lame-duck session.

I agree with Senator Cotton that we need to reduce the number of federal crimes, include strict mens rea protections in all federal criminal provisions, and better respond to the opioid crisis (although I think history has shown that increased federal mandatory minimums are an ineffective way to respond to drug problems). For that reason, I sincerely hope Senator Cotton is busy drafting bills to address these matters that Congress can and should consider swiftly after the passage of the FIRST STEP Act.  But, as the name suggests, the FIRST STEP Act does not claim to fix all the myriad problems of federal criminal law, and so Congress can and should address Senator Cotton's (second step) concerns right after they take a critical first step.

November 15, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Elections and sentencing issues in political debates, Offense Characteristics, Who Sentences | Permalink | Comments (5)

Interesting new report looking at intersection of risk-assessment tools and judicial selection methods

I received an email today alerting me to this interesting new report titled "Roadblock to Reform" authored by Megan Stevenson and Jennifer Doleac.  This webpage provides a video and a summary of the full report, and here are excerpts therefrom:

How do state court judges’ political incentives affect their willingness to employ criminal justice reforms?  This report, Roadblock to Reform, looks at how judges in Kentucky and Virginia have adopted risk assessment tools to inform incarceration decisions.  It considers whether judges’ willingness to use risk assessment tools is related to how the judge is selected.

The study shows that, in both states, reforms aimed at reducing incarceration for low-risk offenders had little to no impact on incarceration rates.  While these tools clearly recommended less incarceration for a large share of defendants, they had little effect on judges’ incarceration decisions.  However, there is tremendous variation among judges in how closely they follow the risk assessment recommendations.

Even in jurisdictions that require the use of these tools, the effectiveness of the risk assessments relies on how judges use the information provided to them. As is outlined in Roadblock to Reform, reforms that seek to reduce incarceration rates for low-risk offenders had little to no impact on incarceration rates in Kentucky and Virginia....  

Researchers decided to study Kentucky and Virginia because their reforms occurred at the statewide level instead of at the county level which ensures that there are many observations on which to base our analysis. In addition, both states began using algorithmic tools to aid in criminal justice decision making early on.

Kentucky has used some sort of algorithm to aid in the pretrial custody decision since the 1970s and made it mandatory in 2011.  Virginia piloted risk assessment in the late 1990’s and adopted it statewide in 2002.  Finally, both states adopted risk assessment with the explicit goal of reducing jail and prison populations. 

The key findings of Roadblock to Reform reveal that many judges ignore the recommendations associated with the risk assessment tools.  As critics have pointed out, risk assessments are not perfect, but the report serves as an important warning that the pressures placed on judges by politicized selection and retention systems are a barrier to any meaningful criminal justice reform. We will never truly fix the criminal justice system unless we get politics out of the ways judges get and keep their jobs....

If Kentucky judges had followed the recommendations associated with the risk assessment in all cases, the pretrial release rate among low- and moderate-risk defendants would have jumped up by 37 percentage points after risk assessment was made mandatory.  Instead, the pretrial release rate for low- and moderate-risk defendants increased by only 4 percentage points, from 63% to 67%.

  • The median judge in Kentucky grants release without monetary bail to only 37% of defendants with low or moderate risk status. In other words, the median judge overrules the presumptive default associated with the risk assessment about 2/3 of the time.
  • If judges had followed the recommendations associated with the risk assessment, there would have been up to a 25% increase in the diversion rate among risk assessment-eligible offenders after risk assessment was adopted statewide. Instead, the diversion rate remained virtually unchanged, dipping just slightly from 34% to 33%.
  • The median judge in Virginia diverts only about 40% of those who were recommended for diversion by the risk assessment instrument.

November 15, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)